State Of H.P. And Others vs Sh. Jagdish Kumar And Others And The ... on 23 February, 2022

[Cites 4, Cited by 79]

Himachal Pradesh High Court

State Of H.P. And Others vs Sh. Jagdish Kumar And Others And The ... on 23 February, 2022

The present Letters Patent Appeal seeks to challenge the judgment dated 23.06.2021, passed by the learned Single Judge, whereby CWP No.3047 of 2020, titled Jagdish Kumar & others Versus State of Himachal Pradesh & others, was allowed, with a direction to the appellants herein to engage the respondents as Pump Attendants from the dates their counterparts/juniors were engaged, with all consequential benefits, including seniority and monetary benefits; on or before 31st July, 2021. The appellants were also ::: Downloaded on - 24/02/2022 20:11:13 :::CIS -8- State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 directed to make payments of arrears of emoluments on or .

before 31st August, 2021.

2. The respondents, total ten in numbers, filed Civil Writ Petition, inter alia, with the pleadings that they were engaged as Water Guards by Irrigation & Public Health Department (in short 'I&PH Department') in various Gram Panchayats in District Sirmour, Himachal Pradesh, under I&PH Division Nohradhar, in the year, 2007, on Part-Time basis to operate Water Pumps of various Water Schemes, under various Gram Panchayats in District Sirmour, H.P. They were initially engaged in the year, 2007, and since then they worked in each successive year for 240 days and more. Even though, they were described at Part-Time basis, but in fact, they have been discharging their duties throughout the day and sometimes even during night hours, as and when they receive calls, as per directions of the Pradhans of Gram Panchayats.

3. It was contended that appointments of the Water Guards were made on account of shortage of regular Pump Operators and Pump Attendants in the I&PH Department. The ::: Downloaded on - 24/02/2022 20:11:13 :::CIS -9- State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 respondents were performing all those duties, which were .

otherwise being performed by the Pump Operators and Pump Attendants and there was no distinction or difference between the duties being discharged by the respondents and the regularly appointed Pump Operators and Pump Attendants. The respondents were entitled to parity in pay on the principle of 'equal pay for equal work' as envisaged under Article 39(d) of the Constitution of India. Action of the Department in not paying equal pay to the respondents is also violative of Article 14 of the Constitution of India.

4. It was contended that the Union of the respondents demanded regularization of their services against the vacant posts of Pump Operators of those who have been working for last ten years. Even then, the Department took a decision to bring the services of the Water Guards on contract basis in the year, 2019. As per the said Policy, services of various Water Guards were brought on contract basis in regular pay scale. A copy of the communication dated 09.08.2019 to bring all these facts is placed on record. ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 However, the services of the respondents were not brought on .

contractual establishment, despite repeated requests. A perusal of communication dated 30.07.2019 sent by the Superintending Engineer, I&PH Circle, Nahan, H.P. to three Executive Engineers, under his jurisdiction, shows that those Water Guards, who have completed twelve years' service as on 31.12.2018 were brought on contractual establishment. When, however, the respondents enquired about their matters, they were informed that their services were not brought on contract, because they did not possess minimum educational qualification, as per Recruitment & Promotion Rules (in short 'R&P Rules') for the said post.

5. Further case of the respondents was that the Registrar of I&PH Department, Jal Shakti Bhawan, Shimla, addressed a letter dated 11.12.2019 to the Engineer-in-Chief, IPH Department, Jal Shakti Bhawan, Shimla-5, requiring him to forward the detailed information of Jal Rakshaks, who have completed service of twelve years or more, with the working of 240 days in each calendar years under Panchayat Raj ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 Institutions (in short 'PRIs') and are required relaxation in .

educational qualification as per R&P Rules for the purpose of induction as Pump Attendants on contract basis in the Department. This clearly shows that the process has already been initiated by the Department for grant of relaxation in educational qualifications in respect of the respondents.

6. The arguments of the respondents which found favour with the learned Single Judge is that since they have been working being duly qualified on the post of Water Guards at the time of their initial engagement. The fact of educational qualification cannot be thrust upon them subsequently. The learned Single Judge has upheld the aforesaid arguments by relying on judgment of the Hon'ble Supreme Court in case titled as Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, reported in AIR 1990 SC 371.

7. We have heard Ms. Ritta Goswami, Additional Advocate General appearing for the appellants in the Letters Patent Appeal and respondents in the Writ Petitions and ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 Mr. A.K. Gupta, learned counsel appearing for the .

respondents in the Letters Patent Appeal and petitioners in the writ petitions and have perused the entire record of the case files.

8. Ms. Ritta Gowami, learned Additional Advocate General argued that the learned Single Judge has failed to appreciate that the respondents were engaged as Part-Time Water Guards by the concerned Gram Panchayats for operation/maintenance of Rural Water Supply Scheme below the Sector storage tanks, which were transferred to the Gram Panchayats. Those working on the post of Water Guards/Jal Rakshaks in various Gram Panchayats under the Policy of the Government, were taken on contract establishment, provided they fulfilled the minimum educational qualification prescribed under Rule 7 of the R&P Rules for the post of Pump Attendant, which required passing of Middle class examination, besides having worked for twelve years. While the respondents completed the service of twelve years and 240 days in each of such calendar years, but they did not fulfill the minimum ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 eligibility criteria.

9. It is further argued that the learned Single Judge has failed to correctly interpret Rule 10 of the R&P Rules. A perusal of the Rule 10 of the R&P Rules, makes it clear that source of recruitment for Pump Attendants would be 100% by way of 'direct recruitment'. Within that, such recruitment can be made by different way, such as either on regular or contract on transfer or induction. In the present case, the recruitment was made by way of induction from amongst the Water Guards having twelve years' service with five years' experience of working with Pump, Motors and Electrical accessories, provided they possess minimum educational of Middle pass as prescribed in the R&P Rules. The learned Single Judge was, therefore, not justified in ignoring the policy decision taken by the Government, vide communication dated 17.07.2019.

10. It is argued that reliance placed by the learned Judge on the judgment of the Hon'ble Supreme Court in the case of Bhagwati Prasad(supra), was wholly misplaced, which ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 judgment was distinguishable on the facts. Even if the process .

for grant of relaxation was at some stage contemplated or initiated by any of the government authorities, the Government in its discretion has rightly decided not to grant such relaxation in the matter of minimum educational qualification. It is, therefore, prayed that the present appeal be allowed and the impugned judgment be set aside.

11. Mr. A.K. Gupta, learned counsel appearing for the respondents has opposed the appeal and supported the judgment passed by the learned Single Judge. He argued that since the respondents were appointed through regular process, their appointment cannot be described as illegal. All of them have completed the requisite period of service of twelve years and also 240 days in each of those years. Only premise on which they have been non-suited for being brought on contractual establishment is that they did not possess Middle pass qualification as per the R&P Rules for the post of Pump Attendants, which were framed as late as in the year, 2017, and in which the Water Guards were sought to be ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 inducted for the appointment as Pump Attendants on .

contract basis by amendment to the said Rules brought on 5th August, 2019. All the respondents, who were initially engaged on the post of Water Guards (Jal Rakshaks) in the year, 2007, and, therefore, the qualification, which has been inserted in the Rules in 2017 and made applicable to them thereafter in the year, 2019, cannot be retrospectively applied.

12. It is submitted that under the aforesaid amended Rules, Water Guards, who were having twelve years' service with five years' experience with Pump, Motors and Electrical accessories were to be appointed on contract basis for the post of Pump Attendants. The Rules were originally framed in the year, 2017, which the respondents are seeking to apply in their respective cases, are, in fact, not attracted to these cases, because their matters do not fall within the purview of the direct recruitment, but it is recruitment by way of induction. Therefore, the judgment of the Hon'ble Supreme Court in the case of Bhagwati Prasad has rightly been relied ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 upon by the learned Single Judge, wherein, it has been held .

that keeping in view the nature of work performed by the Water Guards, their period of working has to be treated as work experience to hold them eligible for the post, in question. The said judgment has been followed by this Court in CWP(T) No.3214 of 2008, titled as Sita Ram Versus Himachal Pradesh State Electricity Board and another, decided on 23.04.2010 as well as in CWP No.1927 of 2009, titled as Virender Singh Versus State of H.P. and others, decided on 05.12.2010.

13. It is argued that there is no difference between the duties being performed by the regular Pump Attendants and contractual Water Guards and the respondents have been performing their duties as long as for twelve years, even then, they were not paid salary payable to the Pump Attendants. This was violative of principle of 'equal pay' for 'equal work'. The appointment of the respondents has been described as Part-Time basis, but the fact is that they have been discharging their duties sometimes even during night hours also.

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021

14. We have given our anxious consideration to rival .

submissions and perused the material on record.

15. The learned Single Judge has in para-8 of the impugned judgment referred to relevant part of Himachal Pradesh, Irrigation & Public Health Department, Pump Attendant, Class-IV (Non Gazetted) Recruitment and Promotion Rules, 2017, as existing on date after amendment carried therein, vide notification dated 05.08.2019. The relevant Rules which are required to be interpreted in the present case needs to be noticed first. The relevant part of the Rules, as existing after amendment carried out therein, vide notification dated 05.08.2019 is reproduced hereunder:

7 Minimum Educational and other a) Essential Qualification(s):-

qualifications required for direct recruit(s): i) Should be Middle pass or its equivalent from a Institute/School duly recognized by the Government.

                                                     b)Desirable          Qualification(s)
                                                     Knowledge of customs, manners
                                                     and dialects of Himachal Pradesh
                                                     and suitability for appointment in
                                                     the peculiar conditions prevailing in
                                                     the Pradesh
    8-9                     ...                                         ...

    10    Method(s) of recruitment whether           100% by direct recruitment on
          by direct recruitment or by                regular basis or by recruitment on
          promotion/secondment/ transfer             contract basis/by transfer from




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                                               - 18 -

State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 and percentage of post(s) to be amongst Beldar who possess 5 years .

            filled in by various methods:              experience of working with Pump





                                                       Motors and Electrical accessories
                                                       strictly    on      the    basis    of
                                                       seniority/induction     from     Water
                                                       Guards after completion of 12 years





                                                       of service with 5 years experience of
                                                       working with Pump, Motors and
                                                       Electrical accessories.
    11      In case of recruitment by                  By Transfer from amongst the Beldar
            promotion/secondment/ transfer,            who possess 5 years experience of
            grade(s) from which promotion/             working with pump house and





            secondment/transfer is to be               electrical accessories strictly on the
            made:                                      basis of seniority.
    12-14                 ...                                                ...

    15      Selection for appointment to the           Selection for appointment to the

            post by direct recruitment:                post in the case of direct
                                                       recruitment shall be made on the

                                                       basis of merit of written examination
                                                       followed by evaluation as specified
                                                       in APPENDIX-I appended to these
                                                       rules.
    15-A    Selection for appointment to the           Notwithstanding              anything
            post by contract appointment:              contained in these rules, contract


                                                       appointment to the post will be
                                                       made subject to the terms and
                                                       conditions given below:

16. Rule 7 (supra), which provides for minimum educational and other qualifications required for direct recruitment is that the candidates should be Middle pass or its equivalent Institute/School duly recognized by the Government as essential qualifications and knowledge of customs, manners and dialects and suitability for appointment in the peculiar conditions prevailing in the State as desirable ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 qualifications. Rule 10 deals with Method(s) of recruitment;

whether by direct or by promotion/secondment/transfer or percentage of post(s) to be filled in by various methods. The caption of Rules clearly makes it evident that while direct recruitment is one of the methods for appointment, but quite apart from that promotion/secondment/transfer and also certain percentage of post are to be filled up by various other modes of recruitment. This has been clarified in the Table in Rule 10 itself by providing that posts, in question, shall be filled up 100% by direct recruitment on regular basis or by recruitment on contract basis/by transfer from amongst Beldars, who possess five years' experience of working with Pump, Motors and Electrical accessories strictly on the basis of seniority/induction from Water Guards, after completion of twelve years of service with five years' experience of working with Pump, Motors and Electrical accessories. In view of the Scheme of the Rules, we have to segregate 'induction' of Water Guards after completion of twelve years of service with five years' working experience with Pump, Motors and ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 Electrical accessories, as Pump Attendants as a separate .

class. This has to be, therefore, apart from direct recruitment, treated as separate mode of recruitment and the case of the respondents have to be understood in that light. In case of Beldar, this has been made more explicitly clear in Rule 11 by providing that in case of recruitment by promotion/ secondment/transfer, grade(s) from which promotion/ secondment/transfer is to be made, it would be transfer from amongst the Beldars, who possess five years' experience of working with Pump House and Electrical Accessories strictly on the basis of seniority. But as regards the direct recruitment, Rule 15 makes it further more clear that selection for appointment to the post in the case of direct recruitment shall be made on the basis of merit of written examination followed by evaluation as specified in APPENDIX-1 appended to these Rules.

17. Rule 15-A, however, has been inserted for the purpose of selection for appointment to the post by contract appointment and, therefore, it has been given overriding ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 effect by providing that 'Notwithstanding anything contained .

in these rules, contract appointment to the post will be made subject to the terms and conditions given thereunder. No- doubt, Beldars, for which Rule 11 has been specifically made, were already working with the Department and the Water Guards were engaged by the Panchayati Raj Institutions, only with a view to implement the Scheme of the appellants- Department, known as Rural Drinking Water Supply Scheme.

18. It would be significant to note that the Government took a decision to transfer Rural Drinking Water Supply Scheme (in short 'RWSSs') to Gram Panchayats for its operation and maintenance in a phased manner and issued Guidelines to this effect. The appellants-Department decided to provide financial assistance to Gram Panchayats for that purpose, who engaged Water Guards at fixed remuneration. Engagement/appointment of Water Guards was made by the Gram Panchayats on the recommendation of the Selection Committee constituted by the Government. The entire process regarding selection and appointment of the Water ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 Guards was carried out as per the Guidelines for transfer of .

operation and maintenance of Rural Water Supply Scheme to Panchayati Raj Institutions.

19. It is not disputed that the implementation of the said Scheme was supervised by the Officers of the appellants- I&PH Department in various Gram Panchayats of the State. The Water Guards were deployed under rechristened Assured Rural Water Supply Scheme, which was known as National Rural Drinking Programme. It was in this Scheme that the State Government in its I&PH Department by a policy decision, decided to engage the Water Guards on contract basis as Pump Attendants. The Rules of 2017 for that purpose were amended in the year, 2019, vide notification dated 05.08.2019.

20. Vide communication dated 17th July, 2019, the Secretary(IPH) to the Government of Himachal Pradesh conveyed to the Engineer-in-Chief, IPH Department, Jal Shakti Bhawan, Shimla, the approval of the Government for conversion of 1026 posts of various categories, that is, Beldar= 306; Helper=229; Mate=15; Clearner=11; Lusker=01 and ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 Chowkidar= 464 into the posts of Pump Attendants in the Pay .

Band of Rs.4900-10680/- plus Grade Pay of Rs.1300/- in Irrigation and Public Health Department. This very order also conveyed that Water Guards deployed under Assured Rural Water Supply Scheme, now National Rural Drinking Programme, may be appointed against the vacant posts of Pump Attendants in accordance with the provisions contained in the Recruitment and Promotion Rules purely on contract basis in Irrigation and Public Health Department.

21. The tenor of the aforesaid order, thus, clearly shows that cases of the respondents-petitioners could not have been treated as one of the direct recruitment rather it was decided that they be engaged on contract basis by way of induction, which was one of the modes of recruitment under Rule 10 of the R&P Rules, at par, with that of the Beldars, who were originally covered by Rule 11 (supra). The R&P Rules for that purpose were amended, vide notification dated 05.08.2019, whereby, the Water Guards/Jal Rakshaks, who completed twelve years of service with five years' experience of working ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 with Pump, Motors and Electrical Accessories, were made .

eligible for contractual appointment as Pump Attendants by way of induction. The copy of letter No.ES-III-PRI's-Water Guard-Vol.-XII/2019-875, dated 19.06.2020, which is placed on record, indicates that in this letter relaxation in the minimum qualification was recommended by Engineer-in-Chief, Jal Shakti Vibhag, Jal Shakti Bhawan, Shimla-5 to the Secretary (JSV) to the Government of Himachal Pradesh, Shimla-2, wherein, reference was made to the letter of the Secretary (IPH) bearing No.IPH-A-A(3)4/2018-loose, dated 01.10.2019, conveying the approval in the terms "that period of working below storage tank and manning of Water Supply Schemes thereof, in respective areas/panchayats by the concerned Jal Rakshak (Water Guards) so engaged for O&M, may be treated as work experience and hold them eligible for having requisite experience to fulfill the eligibility criteria as provided under R&P rules for the post of Pump Attendant for their appointment as such".

22. Accordingly, 943 Jal Rakshaks who fulfilled the ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 criteria of R&P Rules have been appointed as Pump Attendant .

Class-IV on usual terms and conditions of contractual appointment subject to the condition that they will have to undergo three months training before regularization." And in that letter itself, what is mentioned further is that 463 Jal Rakshaks, who have completed twelve years' as on 31.12.2018, but, since they did not fulfill the criteria of educational qualification criteria as prescribed in the R&P Rules, could not be appointed as Pump Attendants Class-IV on contract basis as they required relaxation. The said letter also makes a reference to the Guidelines for transfer of Operation and Management of Rural Water Supply Schemes to the Panchyati Raj Institutions, issued by the Principal Secretary (IPH) to the Government of Himachal Pradesh, vide letter No.IPH-B(F)4-4/2005, dated 03.07.2006, which provided for selection of the persons to operate the system in the terms that "The Panchayat would be free to appoint any person having good health and sound mind for operating the system below the Sector Storage Tank and the educational ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 qualification criteria was not fixed". Referring to all .

these factors, the Engineer-in-Chief, Jal Shakti Vibhag, recommended to the Secretary(JSV) to the Government of Himachal Pradesh for one-time relaxation in the R&P Rules to appointment/induction of Jal Rakshaks as Pump Attendants Class-IV.

23. Aside of the fact that the case of the respondents cannot be treated as one of direct recruitment, but it was a case of recruitment by way of induction, even otherwise, the analysis of the aforementioned facts would clearly show that as on the date on which the respondents were engaged on the post of Water Guards/Jal Rakshaks, there was no requirement of any minimum educational qualification and that they have been successfully discharging their duties without any complaint for last more than twelve years. It is also not disputed that the respondents have not completed twelve years' service with 240 days in each calendar years under Panchayat Raj Institutions and, in our view, therefore, the learned Single Judge was wholly ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 justified in allowing the writ petition by taking into .

consideration the reluctance on the part of the appellants- Department to grant one-time relaxation and at the same time also rightly held that the minimum educational qualification cannot be made applicable in the respective cases of the respondents retrospectively and even if the same is applied, then in view of the pronouncement of the judgment by the Hon'ble Supreme Court in the case of Bhagwati Prasad (supra), the respondents would be entitled to contractual appointment like other Water Guards with regard to which the Government at one point of time has itself concluded that in view of the nature of work being performed by the respondents, their period of working has to be treated as work experience to hold them eligible for having requisite experience to fulfil the eligibility criteria as provided under the R&P Rules for the post of Pump Attendant.

24. The Hon'ble Supreme Court in the case of Bhagwati Prasad Versus Delhi State Mineral Development Corporation (supra) has dealt with the case of regularization of ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 daily rated employees working in the Delhi State Development .

Corporation for long period of time. Their case for regularization was resisted by the respondents contending that they did not fulfil minimum criteria of educational qualification. The Supreme Court held that practical experience would always aid a person to effectively discharge the duties and is a sure guide to assess his suitability. The initial minimum educational qualification prescribed for different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into service. Once the appointments were made of daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them confirmation in the respective posts on the ground that they lack the prescribed educational qualifications.

25. Another judgment of the Supreme Court, which can be pertinently relied on the issue involved herein is the case of B.N. Saxena Versus New Delhi Municipal Committee and others, (1990) 4 Supreme Court Cases 205. The Supreme ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 Court in that case held that the Senior Draughtsmen not .

possessing a Diploma, having six years' experience, qualified under the second alternative of the revised Rule should be treated qualified as experience gained is itself a qualification. In para-7 of the report, it was held by their Lordships as under:-

"7. The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J.P. Chaurasia). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 revised rule and its object. We have no doubt that .

the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter."

26. The Hon'ble Supreme Court in Gujarat Agricultural University Versus Rathod Labhu Bechar and others, (2001)3 Supreme Court Cases 574, held that daily rate workers, who worked on the posts for a long number of years without complaint is a ground by itself for relaxation in eligibility conditions. Relevant observation made by their Lordships in para 28 of the report which reads as under:-

"28. We feel that daily-rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a) need modification to this effect."

27. In view of the above discussion, we find ourselves in agreement with the view taken by the learned Single Judge and, therefore, do not find any infirmity in the impugned ::: Downloaded on - 24/02/2022 20:11:13 :::CIS

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State of H.P. and others Versus Sh. Jagdish Kumar and others and the connected matters LPA No.104 of 2021 a/w CWP Nos.6262 & 6263 of 2021 judgment passed by the learned Single Judge. Consequently, .

the appeal fails and is hereby dismissed, with no orders as to costs.

CWP Nos.6262 of 2021 and 6263 of 2021

28. In the light of the view that we have taken hereinabove while disposing of LPA No.104 of 2021 and upholding the judgment dated 23.06.2021 passed by the learned Single Judge in CWP No.3047 of 2020, titled as Jagdish Kumar & others Versus State of Himachal Pradesh & others, both these Civil Writ petitions are allowed. Accordingly, the respondents are directed to bring the services of the petitioners on contractual establishment with all consequential benefits.

29. Pending miscellaneous application(s), if any, shall also stand disposed of.



                                                                (Mohammad Rafiq)
                                                                  Chief Justice


                                                               (Jyotsna Rewal Dua)
    February 23, 2022                                                 Judge
       (Bhardwaj)




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