1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 3310 of 2011-D alongwith CWP Nos. 3311 of 2011-D, 3312 of 2011-D, 3313 of 2011-D, 3316 of 2011- D, 3355 of 2011-D, 4853 of 2011-E, 4854 of 2011-E, 4855 of 2011-E, 4856 of 2011-E, 5086 of 2011-F, 5091 of 2011, 5316 of 2011, 5617 of 2011-F, 7265 of 2011-H, 8271 of 2011-H, 9217 of 2011-B & 9218 of 2011-B. Decided on: 12.12.2011 1. CWP No. 3310 of 2011-D. Smt. Leela Devi, Widow of late Shri Prem Singh, Resident of Village Rumani, Tehsil Thunag, District Mandi, Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Mahrooti, P.O. Rumani, Tehsil Thunag, District Mandi, H.P. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, to the Govt. of Himachal Pradesh, Mandi. 4. Deputy Director, Elementary Education to the Govt. of Himachal Pradesh, Mandi. ......Respondents. 2. CWP No. 3311 of 2011-D. Lalman, Son of Shri Bhikham Ram, Resident of Village Thana Shiva, P.O. Thana Shiva, Tehsil Thunag, District Mandi, Himachal Pradesh ......Petitioner 2 Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, to the Govt. of Himachal Pradesh, Mandi. 4. Deputy Director, Elementary Education to the Govt. of Himachal Pradesh, Mandi. ......Respondents. 3. CWP No. 3312 of 2011-D. Tara Chand, Son of Shri Brasti Ram, Resident of Village Chhabadhr, P.O. Thana Shiva, Tehsil Thunag, District Mandi, Himachal Pradesh ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, to the Govt. of Himachal Pradesh, Mandi. 4. Deputy Director, Elementary Education to the Govt. of Himachal Pradesh, Mandi. ......Respondents. 4. CWP No. 3313 of 2011-D. Tara Chand, Son of Shri Maya Ram, Resident of Village Janed, P.O. Rumani, Tehsil Thunag, District Mandi, Himachal Pradesh ......Petitioner 3 Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, to the Govt. of Himachal Pradesh, Mandi. 4. Deputy Director, Elementary Education to the Govt. of Himachal Pradesh, Mandi. ......Respondents. 5. CWP No. 3316 of 2011-D. Nokhu Ram, Son of Shri Sher Singh, Resident of Village Parali, P.O. Shillibagi, Tehsil Thunag, Distrcit Mandi, Himachal Pradesh presently working as part time water carrier in Govt. Primary School, Mathiana, P.O. Shillibagi Tehsil Thunag, District Mandi, H.P. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, to the Govt. of Himachal Pradesh, Mandi. 4. Deputy Director, Elementary Education to the Govt. of Himachal Pradesh, Mandi. ......Respondents. 6. CWP No. 3355 of 2011-D. Duni Chand, S/o Shri Padam Dev, R/o Village Kewli, P.O. Lambathach, Tehsil Thunag, Distrcit Mandi, Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Rahkot, P.O. Lambathach, Tehsil Thunag, Distrcit Mandi, ......Petitioner 4 Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, to the Govt. of Himachal Pradesh, Mandi. 4. Deputy Director, Elementary Education to the Govt. of Himachal Pradesh, Mandi. ......Respondents. 7. CWP No. 4853 of 2011-E. Kewal Ram, S/o Shri Chhajju Ram, R/o Village Dimon, P.O. Sarain, Tehsil Chopal, Distt. Shimla, H.P., presently working as part time water carrier in Govt. Primary School, Dimon, P.O. Sarain, Tehsil Chopal BPO Chopal, Distt. Shimla, H.P., ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 8. CWP No. 4854 of 2011-E Shri Ramesh Chand, S/o Sh. Sukh Ram, R/o Village Shillan, P.O. Sarain, Tehsil Chopal, Distt. Shimla Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Shillan, P.O. Sarain, Tehsil Chopal, BPO Chopal, Distt. Shimla, H.P. ......Petitioner 5 Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 9. CWP No. 4855 of 2011-E Shri Bir Singh, S/o Sh. Nand Ram, R/o Village Dharchari, P.O. Malat, Tehsil Chopal, Distt. Shimla Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Kuftadhar, Tehsil Chopal, BPO Chopal, Distt. Shimla, H.P. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 10. CWP No. 4856 of 2011-E Shri Dev Datt, S/o Sh. Balak Ram, R/o Village Gurwan, P.O. Sarain, Tehsil Chopal, Distt. Shimla Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Gurwan, Tehsil Chopal, BPO Chopal, Distt. Shimla, H.P. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 6 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 11. CWP No. 5086 of 2011-F Shri Bhag Singh, S/o Sh. Bhoop Singh, R/o Village Madog, P.O. Narain, Tehsil Rampur Bushehar, Distt. Shimla,Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Madog, Tehsil Rampur Bushehar, Distt. Shimla,Himachal Pradesh ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 12. CWP No. 5091 of 2011 Shri Govind Singh, S/o Sh. Karam Singh, R/o Village Bahali, P.O. Bahali, Tehsil Rampur Bushehar, Distt. Shimla, Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Bahali, Tehsil Rampur Bushehar, Distt. Shimla, Himachal Pradesh. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 7 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 13. CWP No. 5316 of 2011 Shri Dina Lal, S/o late Sh. Shadi Ram, R/o Village Rantari, P.O. Seema, Tehsil Rohru, Distt. Shimla, Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Jara, VPO Seema P.O. Tehsil Rohru, Distt. Shimla, HP. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 14. CWP No. 5617 of 2011-F Shri Sohan Lal, S/o late Sh. Daulat Ram, R/o Village Deothi, P.O. Deothi, Tehsil Rampur Bushehar, Distt. Shimla, Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Soom, VPO Deopthi, Tehsil Rampur Bushehar, Distt. Shimla, Himachal Pradesh. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 8 15. CWP No. 7265 of 2011-H Smt. Prem Latta, W/o Shri Gian Singh, R/o Village Jarat, P.O. Bhor, Tehsil Chopal, Distt. Shimla, Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Jarat, BPO Nerwa, Tehsil Chopal, Distt. Shimla, Himachal Pradesh. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 16. CWP No. 8271 of 2011-H Shri Bishamber Singh S/o Shri Bhajan Dass, R/o Village Rantari, P.O. Seema, Tehsil Rohru, Distt. Shimla, Himachal Pradesh, presently working as part time water carrier in Govt. Primary School, Kotibai, VPO Seema Tehsil Rohru, Distt. Shimla, Himachal Pradesh. ......Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. Director, Higher Education, to the Govt. of Himachal Pradesh, Shimla. 3. Deputy Director, Higher Education, Distt. Shimla, Himachal Pradesh. ......Respondents. 9 17. CWP No. 9217 of 2011-B 1. Shri Amarjeet Singh S/o Shri Roshan Lal, R/o Village Bharapur, P.O. Dhawla Kuniuna, Tehsil Paonta Sahib, Distt. Sirmour, Himachal Pradesh 2. Shri Gulab Singh Chauhan, S/o Shri Sukhia Ram, R/o Village Kandoo, P.O. Jamna, Tehsil Paonta Sahib, Distt. Sirmour, Himachal Pradesh ...Petitioners Versus 1. State of Himachal Pradesh through its Secretary (Education) to the Govt. of Himachal Pradesh, Shimla-2. 2. Director of Higher Education, to the Govt. of Himachal Pradesh, Shimla-1. 3. The Deputy Director of Higher Education, Distt. Sirmour at Nahan, Himachal Pradesh. ......Respondents. 18. CWP No. 9218 of 2011-B 1. Tara Devi, W/o Shri Prem, presently working as Part Time Water Carrier in Government Primary School, Tokio, Tehsil Paonta Sahib, Distt. Sirmour, Himachal Pradesh. 2. Smt. Meenu Devi, W/o Shri __, presently working in Government Primary School, Kalatha, Tehsil Paonta Sahib, Distt. Sirmour, Himachal Pradesh. 3. Sh. Bhagmal, S/o Sh. Dhanu Ram, R/o Village Bharapur, P.O. Dhola Kuniua, Tehsil Paonta Sahib, Distt. Sirmour, Himachal Pradesh. ...Petitioners Versus 1. State of Himachal Pradesh through its Secretary (Education) to the Govt. of Himachal Pradesh, Shimla-2. 10 2. Director of Higher Education, to the Govt. of Himachal Pradesh, Shimla-1. 3. The Deputy Director of Higher Education, Distt. Sirmour at Nahan, Himachal Pradesh. ......Respondents. Civil Writ Petition under Articles 226/227 of the Constitution of India for issuance of appropriate writ, order or directions to the respondents keeping in view the facts and circumstances of the case narrated hereinafter in the body of the writ petition. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Dev Darshan Sud, Judge. For the petitioner(s) : Mr. I.D. Bali, Senior Advocate with Mr. Shivrajan Sharma, Advocate. For the respondents : Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Additional Advocate General and Mr. J.K. Verma, Deputy Advocate General. Justice Kurian Joseph, C.J. (Oral) The petitioners in all these cases have been appointed as Part Time Water Carriers in terms of the 2001 Policy, dated 27.7.2001 issued by the Education Department. Paragraph 20 of the Policy stipulates that “the candidates appointed as part time water carrier under the scheme, by the 11 respective Gram Panchayats/Urban Local Bodies of the area in which the Primary School is located, shall have no right to claim regularisation/appointment.” It is the stand of the respondents- State, as reflected in paragraph 5 of the reply filed by the Director that the 2001 Policy permits the appointment of Contingent Paid employees in Government Primary Schools, on contract basis, through the Panchayati Raj Institutions. It is also stated at paragraph 9 of the reply that there is no instruction that Part Time Water Carriers after completion of 8 years of continuous service will be made regular class-IV employees. At paragraph 9 of the reply, it is stated that “the Part Time Water Carrier are converted to the post of Whole Time Contingent Paid as per their seniority and availability of posts. The policy for regularization after 8 years of continuous service is not applicable to the petitioner.” Still further, at paragraphs 10, 11, 12, 13, 15 & 16, it is stated as follows: “10. That in reply of this para it is submitted that being a district cadre post, the Part Time water Carrier who joined in district Shimla have been assigned the seniority numbers by the Deputy Director of Higher Education Shimla according to their initial joining as Part Time water Carrier in the Department. The Part Time water Carrier joined in district Shimla upto 11.08.1997 and 12 bearing seniority numbers upto 391 have been made Whole Time Contingent Paid employees by the DDHE-Shimla on 21.07.2009, vide order No. Shiksha-Shimla (1-4)B-13/2007-8688-8818. It is also pertinent to mention here that the flow of promotion of district cadre posts is different in different districts. It depends upon the next higher sanctioned posts, number of promotions and number of retirements in a particular cadre. 11. That in reply to this para it is submitted that only such daily wager employees and Contract appointees who have rendered 8 years of continuous service with a minimum of 240 days are being regularized w.e.f. a cut of date as decided by the Government. The petitioners are Part Time Water Carriers and engaged only for four hours per day (portion of a day) and accordingly they are not cover under the regularization policy of the Government. 12. That in reply of this para it is submitted that the petitioners were appointed under the recruitment scheme notified on 27.07.2011, on contract basis, through the Panchayati Raj Institutions. As per the decision f the Government conveyed, vide letter No. EDN-C-B(2)35/2006, dated: the 28th May 2009 “that after considering all the Part Time Water Carriers appointed under 1996 policy, posts of Whole Time Contingent Paid be filled up by giving preference to the incumbents appointed under the policy issued on 13 27.07.2011.” the petitioner as well as other similar situated persons will be given preference to grant them Whole Time Contingent Paid status purely on the basis of their seniority and subject to the availability of the posts of Whole Time Contingent Paid in the respective districts. 13. That in reply to this para it is submitted that the services of retrenched persons, declared surplus from the HP State Forest Development Corporation Ltd. Were regularized in the Department, against the vacant posts of Class-IV employees, after giving the preference/promotional benefits to all the eligible Whole Time Contingent Paid employees of department, as per decision of the Government, after observing all the codal formalities. 15. That in reply of this para it is submitted that the petitioners were appointed under the recruitment scheme notified on 27.0702001, on contract basis, through the Panchayati Raj Insitutions. As per the decision of the Government conveyed, vide letter No. EDN-C-B(2)35/2006, dated :the 28th May 2009 “that after considering all the Part Time Water Carriers appointed under 1996 policy, posts of Whole Time Contingent Paid be filled up by giving preference to the incumbents appointed under the policy issued on 27.07.2001” the petitioner as well as other similar situated persons will be granted Whole 14 Time Contingent Paid status purely on the basis of their seniority and subject to the availability of the posts of Whole Time Contingent Paid in the respective districts. 16. That in reply to this para it is submitted that the due and admissible promotional benefits will be given to all the petitioners as well as other similar situated persons, on the basis of their seniority and subject to the availability of the posts of Whole Time Contingent Paid, after considering all the Part Time Contingent Paid engaged as per the policy notified on 06.07.1996.” 2. Learned Senior Counsel for the petitioners contended that the petitioners shall be treated as eligible for appointment in terms of the Recruitment and Promotion Rules for the post of regular Class-IV employees. We are afraid that this contention cannot be appreciated, for the simple reason that the petitioners have not been appointed as Part Time Workers. They have been appointed under a Scheme for appointment of Part Time Water Carriers through the Panchayat Raj Institutions. However, the stand that they will be made Whole Time Contingent Employees in accordance with their seniority and availability of vacancy, which would necessarily vary from district to district, cannot be appreciated, in view of the undisputed general policy available in 15 the State that any Part Time Water Workers after completion of 10 years of service as such, is made Whole Time Contingent Employee on daily waged basis and on such continuous service of 8 years with 240 days in a year is made a regular class-IV employee. Therefore, Part Time Water Carriers cannot be put to a more disadvantageous position. This 10 years part time, 8 years daily wage and then regular, will also necessarily ensure the uniformity irrespective of the fortuitous status of Part Time Water Carrier getting employment in a particular District where he would be getting accelerated promotion. Therefore, all these writ petitions are disposed of directing the respondents/competent authority to consider the cases of the petitioners as follows: (i) All those Part Time Water Carriers, who have completed 10 years of service as such, shall be converted to the status of Whole Time Contingent Employees on daily waged basis. (ii)Such an employee in continuous service of 8 years with 240 days in a year as daily wager after 10 years of part time service shall be appointed on regular basis as Class-IV employee. (iii)However, it is made clear that in the case of any petitioner, who has completed 10 years of part time service, on conferment of daily wager status, shall not be entitled to any retrospective wages. The entitlement shall only 16 be for counting 240 days in the year concerned for the purpose of appointment as a regular Class-IV employee. (iv)The Director (Education) shall also look into the grievance of the petitioners that they have been paid lesser wages than those appointed under the 1996 Policy and required steps shall be taken for redressal of such grievances. 3. The needful action, in the light of the above judgment, shall be taken by the competent authority, within a period of four months from the date of production of a copy of this judgment by the petitioner concerned before the Director, Elementary Education. 4. Pending applications, if any, also stand disposed of. (Justice Kurian Joseph), Chief Justice. December 12, 2011 (Justice Dev Darshan Sud), (ms/hl) Judge.