Durga Devi vs State Of Himachal Pradesh & Ors

Vivek Singh Thakur, J

Petitioner was appointed as Part Time Water Carrier in Education Department of Himachal Pradesh, on 30.09.1997.

Grievance of petitioner is that after serving for requisite years of service, she has not been given Whole Time Contingent Paid/Daily Wage Status,

as has been given to the similar situated employees in the Department, and benefits incidental thereto.

Petitioner was never converted into Whole Time Contingent Paid Status, and was not regularized as a Class-IV employee, but retired from the

service 29.11.2014.

In response, it is stand of the State that after passing of judgment dated 12.12.2011 in CWP No.3310 of 2011, titled Leela Devi versus State of

Himachal Pradesh & ors. along with connected matters, respondent-State has framed a Policy, vide Notification dated 22.08.2012, whereby services

of Part Time Water Carrier, working in Education Department have been directed to be governed as follows:-

“(i). The part time water carriers of the Department will be converted as Water Carrier-cum-Peon on daily waged basis after completion of 10 years of continuous

service as per policy/guidelines of Department of Personal issued from time to time for all other State Govt. departments. This will be revised to the period of 9 years

as and when the same is issued by the Department of Personal.

(ii). 983 numbers of whole time contingent paid posts of the department will be converted/upgraded as the regular class-IV Employees.

(iii). The services of Part Time Water Carriers converted as Water Carrier-cum-Peon on Daily Waged Basis will be regularized as Regular Class-IV after completion of 8

years as per Department of personal policy issued from time to time for all other State Government Departments.

(iv). At a later stage when post of Regular Class-IV is vacated by way of promotion, retirement etc. the same will be filed up as Part Time Water Carriers.

(v). The Part Time Water Carriers were earlier appointed as per Policy on hourly basis, which has since been discontinued. The existing policy of initial appointed as

Part Time Water Carrier on contract basis would continue.

(vi). There are many vacancies of Clerks/Las to be promoted from Class-IV, of Class-IV to be promoted from Whole Time Contingent Paid and of Whole Time

Contingent Paid to be promoted from Part Time Water Carriers. All the vacancies as above existing till 31.08.2012 will be filled up with in next 15 days as per the

existing rules and thereafter the aforesaid new policy be implemented.â€​

Short reply has been filed on behalf of Director, Elementary Education, Himachal Pradesh, stating therein that there is no role of Elementary

Directorate regarding conversion of petitioner from Part-Time Water Carrier to Daily Wager and thereafter to regularize her and necessary action is

to be taken by Director, Higher Education. Thereafter, Director, Higher Education and Deputy Director, Higher Education, Sirmour at Nahan, were

arrayed as party respondents No.4 & 5. Despite granting opportunity they did not file reply and right to file reply on behalf of these respondents was

closed. Thereafter, matter was taken up for consideration.Till date no reply has been filed.

Though reply has not been filed, but it has been submitted by learned Additional Advocate General that Whole Time Contingent Paid Status/Water

Carrier-Cum-Peon on daily wage basis status was given to the Part Time Workers, strictly on the basis of seniority and availability of vacancy and

prior to 22.08.2012, there was no Policy in the respondent-Department to convert/promote Part Time Water Carrier to Whole Time Contingent

Employee, who had completed ten years of continuous service, and combined seniority of Part Time Water Carrier/Part Time Sweeper was being

maintained at district level strictly, which was the criteria for extending status of regular Class-IV employee upon such Part Time Worker, but subject

to availability of post and it was not automatic.

It is apt to record here that similar stand was taken by respondent-State in Leela Devi’s case (supra). The following portion of the said

judgment is relevant for adjudication of present matter, which reads as under:-

“ 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

respective Gram Panchayats/Urban Local Bodies of the area in which the Primary School is located, shall have no right to claim regularisation/

appointment.â€​ 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.â€​

……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 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 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.â€​

Facts in present case are almost similar to the case of Leela Devi (supra) and stand of respondent-State in present case is also similar. Therefore,

claim of petitioner is squarely covered by the decision in Leela Devi’s case and thus, the same shall be applicable to present case mutatis

mutandis, for all intents and purposes.

It is apt to record here that verdict in Leela Devi’s case has been accepted and implemented by respondent-State and, therefore, respondent-

State cannot discriminate similar situate persons appointed in the same fashion as Part Time Water Carrier in the same Department.

It is also apt to record here that petitioner herein is appointed in the year 1997, as per policy of the State, whereas petitioners, in Leela Devi’s

case were appointed as Part Time Water Carrier in terms of 2001 Policy, dated 27.07.2001, issued by Education Department. Therefore, petitioner is

senior to the petitioners in Leela Devi’s case and thus she is definitely entitled for the benefit, which has already been extended to her juniors in

the same Department accordingly.

Accordingly, petitioner is also entitled for conversion of her status to Whole Time Contingent Employees on daily wage basis and incidental

benefits thereto i.e regularization on completion of eight years of service from the date of conversion as Daily Wager/Whole Time Contingent after

completion of ten years part time service. Therefore, from the date of initial appointment as part time worker till completion of ten years, as such, she

shall remain as Part Time Worker and immediately on completion of ten years she shall be converted into Whole Time Contingent Employees and on

completion of eight years service she shall be conferred status of regular Class-IV employee as has been directed in Leela Devi’s case.

Needful be done by passing appropriate order by appropriate authority i.e. Director Elementary Education/Director Higher Education, on or before

20.11.2024.

It is made clear that benefit, if any, already extended to petitioner, if concluded to have been paid in excess, the same shall not be

withdrawn/recovered on account of directions passed thereafter in this judgment.

In view of above, petition is allowed and disposed of, so also the pending miscellaneous application(s), if any, in aforesaid terms.