Disposed

State of H.P. v. Rajinder Singh

Himachal Pradesh HC3 Dec 2014LPA/118/2014

Case brief

AI extract

What is this about?

Hourly lecturers could not claim contractual status or seniority over regularly selected appointees. The court set aside the declaration granting contractual status but directed the State to examine regularization or contractual conversion. It dismissed the aspiring candidates’ appeal for lack of locus standi and disposed of the writ petitions.

What did the court decide?

Contractual-status declaration set aside; State directed to examine the writ petitioners’ regularization or contractual conversion in light of Annexure P-3 recommendations.

State of H.P. Vs Rajinder Singh — Service and Employment | Himachal Pradesh HC (2014)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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LPA No.107 of 2014 a/w LPAs No.117, 118, 161, 171, 173, 174, 193 of 2014, CWP No.3789 of 2014 and 6610 of 2014. Judgment reserved on: 11^th November, 2014. Decided on: 3^rd December, 2014.

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1. LPA No.107 of 2014
Amit Attri and others. VERSUS Anil Verma and others.	...Appellants. …Respondents.
2. LPA No.117 of 2014
State of Himachal Pradesh and others. VERSUS Anil Verma and others.	...Appellants. …Respondents.
3. LPA No.118 of 2014
State of Himachal Pradesh and others. VERSUS Rajinder Singh and others.	...Appellants. …Respondents.
4. LPA No.161 of 2014
State of Himachal Pradesh and others. VERSUS	...Appellants.
Renu Patial and others.	…Respondents.
5. LPA No.171 of 2014
State of Himachal Pradesh and others. VERSUS Ritika Sharma and others.	...Appellants. …Respondents.
6. LPA No.173 of 2014
State of Himachal Pradesh and others. VERSUS AnkajThakur.	...Appellants. …Respondent.
7. LPA No.174 of 2014
State of Himachal Pradesh and others. VERSUS Jitender Kumar.	...Appellants. …Respondent.
8. LPA No.193 of 2014
Sachin Sharma and others. VERSUS State of Himachal Pradesh and others.	...Appellants. …Respondents.

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9. CWP No.3789 of 2014 Vivek Sharma. ...Petitioner. VERSUS State of Himachal Pradesh and others. …Respondents. 10. CWP No.6610 of 2014. Sandeep Chaudhary and others. ...Petitioners. VERSUS State of Himachal Pradesh and others. …Respondents.

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Coram

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The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting? Yes

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For the Appellant(s): Mr. Dilip Sharma, Senior Advocate with Mr. Manish Sharma, Advocate, in LPA No.107 of 2014, Mr.Shrawan Dogra, Advocate General with Mr.Romesh Verma, Mr.V.S.Chauhan, Addl.A.Gs. and Mr.J.K.Verma and Mr. Kush Sharma, Dy.AGs, in LPAs No.117, 118, 161, 171, 173, 174 of 2014 and Mr. Subhash Sharma, Advocate, in LPA No.193 of 2014.

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Mr. D.K. Khanna, Advocate, for the Public Service Commission in LPAs No. 107, 117, 118, 161,171, 173, 174 and 193 of 2014. For the Petitioner(s): Mr. Bhuvnesh Sharma and Mr. Ramakant Sharma, Advocates, in CWP No.3789 of 2014 and Mr. Onkar Jairath, Advocate, in CWP No.6610 of 2014. For the Respondent(s): Mr. M.L. Sharma, Senior Advocate, with Mr. Aman P. Sharma and Mr. B.L. Soni, Advocates, for respondents No.1 to 4, 7, 8, 9, 11, 12, 14, 16 to 20, Mr. Shrawan Dogra, Advocate General, with Mr. V.S. Chauhan, Mr. Romesh Verma, Addl. AGs, Mr. J.K. Verma and Mr. Kush Sharma, Dy. AGs, for respondents No.21 and 22, in LPA No.107 of 2014, for respondents No.1 and 2 in CWP No.3789 of 2014 and LPA No.193 of 2014 and for the respondents in CWP No.6610 of 2014.

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Mr. D.K. Khanna, Advocate, for respondent-Public Service Commission in CWP No.3789 of 2014.

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Mr. M.L. Sharma, Senior Advocate with Mr. Aman P. Sharma and Mr. B.L. Soni, Advocates, for respondents No.1 to 4, 7 to 9, 11, 12, 14, 16 to 20 in LPA No.117 of 2014.

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Other respondents ex parte in LPA No. 117/2014.

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Mr. M.L. Sharma, Senior Advocate with Mr. Aman P. Sharma and Mr. B.L. Soni, Advocates, for the respondents, in LPAs No. 118, 161, 173 and 174 of 2014.

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Mr. M.L. Sharma, Senior Advocate, with Mr. Aman P. Sharma and Mr. B.L. Soni, Advocate, for respondents No.1, 5 to 12, in LPA No.171 of 2014.

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Respondents No.2 to 4 ex parte in LPA No. 171 of 2014.

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Mr. M.L. Sharma, Senior Advocate, with Mr. Aman P. Sharma and Mr. B.L. Soni, Advocate, for respondents No.4 to 7, 10 to 12, 14, 15 and 17 to 23, in LPA No.193 of 2014.

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Respondents No.9 and 13 ex parte in LPA No. 193/2014.

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Mansoor Ahmad Mir, Chief Justice

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These eight Letters Patent Appeals are directed against the judgment and order dated 05.03.2014, passed by the learned Single Judge in case titled Anil Verma and others vs. State of H.P. and others, alongwith connected matters, the lead case of which was CWP No.2978 of 2012, whereby and whereunder the writ petitions filed by the writ petitioners came to be granted, on the grounds taken in

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the memo of appeals, hereinafter referred to as “the impugned judgment”, for short.

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It is worthwhile to mention here that after noticing the aforesaid judgment, writ petitioner(s) Vivek Sharma filed CWP No. 3789 of 2014 and Sandeep Chaudhary and others filed CWP No. 6610 of 2014 , for the grant of same reliefs, in terms of the aforesaid judgment impugned in these appeals. Both the petitions, vide orders dated 4.6.2014 and 25.9.2014, respectively, were ordered to be listed along with the present LPAs.

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Appellants in LPA No. 107 of 2014, were not parties before the Writ Court. They have sought leave on the ground that they came to be appointed as lecturers, in terms of the due selection process drawn, as per the Rules, and are being adversely affected by the impugned judgment because their seniority and promotional rights would be affected, and would rank juniors to the writ petitioners/respondents.

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In LPA No. 193 of 2014 the appellants have sought leave to file appeal, was granted and have questioned the impugned judgment on the ground that they are duly qualified and are waiting for advertisement, in order to get a chance to participate in selection process against the posts of lecturers/instructors, but in view of the judgment, they are deprived of the said right by making

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room for the petitioners in the batch of said writ petitions, which has given birth to the impugned judgment, and thus is virtually a back-door entry.

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The State has also questioned the impugned judgment on the grounds taken in the memo of appeal.

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Since the common questions of law and facts are involved in these Letters Patent Appeals and the writ petitions, thus, we deem it proper to determine all these appeals and the writ petitions by this common judgment.

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It is necessary to give a brief resume of relevant facts, the womb of which has given birth to these appeals and the writ petitions.

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The posts of lecturer were governed by the Rules called “The Himachal Pradesh Technical Education Department Class-III Service Rules, 1973, which were amended by “The Himachal Pradesh Technical Education Vocational & Industrial Training Department Lecturer Engineering (Polytechnic) Class-I (Gazetted), Recruitment and Promotion Rules, 2011. While going through the Rules, the posts of lecturer are to be filled up by direct recruitment process but despite that the selection and appointment of the writ petitioners was not made as per the Rules, occupying the field.

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Admittedly, the State, in order to overcome shortage of teaching staff, made a policy

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decision to make selection and appointment of lecturers/instructors on lecturer/hourly basis.

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The writ petitioners have placed on record copy of the office order Annexure MA-18 at page 173 of CWP No. 2978 of 2012 whereby a Committee was constituted for recruitment of lecturers in various disciplines on hourly/lecture basis. The names of the petitioners and the similarly situated persons were sponsored by the Employment Exchange(s) and they were selected by a Selection Committee. The recommendations were also got approved from the Directorate, Technical Education Vocational & Industrial Training H.P. Sundernagar, vide order dated 27.8.2012. The appointment order of one of the petitioners in lead CWP No. 2978/2012 is reproduced

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hereunder:

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“Annexure R-1

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Office of the Principal, Govt. Polytechnic, Kangra, H.P.-176001. (An ISO 9001:2008 Certified institution)

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No.GPK/Hourly Basis/SWF/11-114 Dated:

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Sh. Anil Verma S/o Sh. Bhag Singh, VPO Seoh, Tehsil Sarkaghat, Distt. Mandi.

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Subject:Engagement on hourly basis.

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On the recommendation of Interview Committee, you are engaged purely on lecture/hourly basis @ Rs.350/- per lecture for theory & Rs.150/- per lecture for Practical. Each Lecture/Practical period will be of one hour duration for teaching the subject of Mechanical Engg. to the students of this Polytechnic on the following terms & conditions:

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1. This engagement is purely on stop-gap arrangement & will not entail your claim for regularization/continuation of teaching work.

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2. Work& conduct being adjudged satisfactory by undersigned failing which the engagement will stand automatically/ terminated/dispensed will & will be replaced by another capable person.

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3. The arrangement is out of Student Welfare Fund & strictly will be governed on the status/availability of funds.

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4. If any lecturer of Mechanical Deptt. join the institution on transfer or appointed on regular/contractual basis, your services will be terminated or automatically stands terminated the day he joins.

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5. You will carry out the teaching work (Theory/Practical) or any other student related activity assigned by the HOD/Undersigned.

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6. In case you want to leave the assignment, you shall submit seven days notice and get relieving order. If you do not engage the classes continuously for one week without prior information, you will be replaced by next candidate on panel. No kind of leave will be permissible during the teaching schedule.

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If the above terms & conditions are acceptable to you, an undertaking/affidavit to this effect duly attested by the competent authority is required to be submitted at the time of joining within 07 days of the issue of this order.

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Principal,

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Govt. Polytechnic Kangra, Distt. Kangra (HP)-176001 Dated: 20.1.2011.

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Endst. No. As above: 115

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Copy to the HOD Mechanical Engg. w.r.t. his requirement dated 19.01.2011 (internal) for information & further necessary action.

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Principal, Govt. Polytechnic Kangra, Distt. Kangra (HP)-176001”

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The petitioners have performed their jobs and

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were allowed to perform their duties without any break, as averred in the writ petitions. They have sought a writ of mandamus, commanding the respondents that they be declared to have been appointed on contract basis and also sought other reliefs.

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The respondents have filed replies to the respective writ petitions. The consistent stand in all the writ petitions taken by the respondents-State is that no master and servant relationship existed in between the State Government and the petitioners. The arrangement was made just to overcome shortage of teaching staff in the

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Government Polytechnic Colleges. The petitioners are being paid from the student welfare fund and not from the consolidated fund of the State Government. It is further submitted that contractual appointment is to be made in terms of due recommendation to be made by the H.P.P.S.C. as per the provision of R & P Rules. An arrangement so made, in the interest of teaching and training work, paid on hourly basis, by no strength can be termed as appointment on contract basis. Almost same and similar replies have been filed by the State in two fresh writ petitions being CWPs No.3789 & 6610/2014.

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The learned Single Judge, after going through the record and judgments delivered by the Supreme Court, made the impugned judgment. 14. The moot question in these Letters Patent Appeals and the writ petitions is that whether the learned Single Judge was and is within his power and competence to declare the appointment of the writ petitioners to have been made on contract basis with all consequential benefits from the date of their initial appointment? The answer is in the negative for the following reasons.

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Admittedly, the posts of lecturers/instructors were to be filled up by direct recruitment and direct recruitment process was to be initiated. In fact, no advertisement was made, as per the Rules and no such

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direct recruitment process was ever initiated. The case of the State as well as of the writ petitioners before the Writ Court was that, in order to overcome the shortage of the teaching staff, a short-cut method was adopted. Meaning thereby, it is an admitted fact that no direct recruitment process was ever initiated, as per the Rules, occupying the field.

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It is worthwhile to record herein that the petitioners have accepted the terms and conditions, as contained in their appointment orders, one of which stands reproduced supra. They have been appointed purely on lecturer/hourly basis for one hour lecturer basis, cannot claim regularization.

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The apex Court in Indu Shekhar Singh & Ors. vs. State of U.P. & Ors reported in 2006 AIR SCW 2582 in para 24 held as under:

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“24. The State was making an offer to the Respondents not in terms of any specific power under Rules, but in exercise of its residuary power (assuming that the same was available). The State, therefore, was within its right to impose conditions. The Respondents exercised their right of election. They could have accepted the said offer or rejected the same. While making the said offer, the State categorically stated that for the purpose of fixation of seniority, they would not be obtaining the benefits of services rendered in U.P. Jal Nigam and would be placed below in the cadre till the date of absorption. The submission of Mr. Verma that for the period they were with the Authority by way of deputation, should have been considered towards seniority cannot be accepted simply for the reason that till they were absorbed,

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they continued to be in the employment of the Jal Nigam. Furthermore, the said condition imposed is backed by another condition that the deputed employee who is seeking for absorption shall be placed below the officers appointed in the cadre till the date of absorption. The Respondent Nos.2 to 4 accepted the said offer without any demur on 3.9.87, 28.11.91 and 6.4.87 respectively.

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25. They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal. [See R.N. Gosain vs. Yashpal Dhir (1992) 4 SCC 683, Ramankutty Guptan vs. Avara (1994) 2 SCC 642 and Bank of India & Ors. vs. O.P. Swarnakar & Ors. (2003) 2 SCC 721.] Further more, there is no fundamental right in regard to the counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtain such benefit of past service.”

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18. In University of Rajasthan and Anr. v. Prem

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Lata Agarwal alongwith other connected matters reported in 2013 AIR SCW 989 , the apex Court in para 34

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held as under:

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“34. In view of the aforesaid, the irresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi, (AIR 2003 SC 1806) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi

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(supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services in 1998.”

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19. In Chief Executive Officer, Pondichery Khadi and Village Industries Board and Anr v. K. Aroquia Radja

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and Ors reported in 2013 AIR SCW 1759, it was held as

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under:

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“17. The learned Single Judge who heard the Writ Petition No.3181 of 2008 and also the Division Bench which heard the writ appeal could not have ignored that the respondents were clearly told that their services were co- terminus, and they will have no right to be employed thereafter. Condition No.4 and 6 of the earlier referred terms and condition are very clear in this behalf. The respondents had taken the coterminus appointment with full understanding. It was not permissible for them to challenge their dis- engagement when the tenure of the Chairman was over……..

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18. As stated by this Court in Umadevi (supra), absorption, regularization or permanent continuance of temporary, contractual, casual, daily-wage or adhoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment is impermissible and violative of Article 14 and 16 of the Constitution of India. As recorded in paragraph 53 of the report in SCC, (para 44 of AIR 2006 SC 1806) this Court has allowed as a one time measure, regularization of services of irregularly appointed persons, provided they have worked for ten years or more in duly sanctioned posts. That is also not the case in the present matter.”

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20. In Hari Nandan Prasad and Anr. v. Employer

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I/R to Management of FCI and Anr. reported in 2014 AIR

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SCW 1383 the apex Court in para 34 held as under:

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“34. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Art.14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art.14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art. 14, rather than violating this constitutional provision.”

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Applying the ratio of the aforesaid apex Court’s judgments to the facts and circumstances of the present case, one comes to an inescapable conclusion that the candidates, who have got appointment/ engagement on hourly basis or seasonal basis, cannot claim regularization, not to speak of declaring him/them to have been appointed on contract basis.

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It is apt to record herein that the lecturer is Class-I post and Class-I post is to be filled up by selection

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process through the Public Service Commission. If the selection for Class-I post is not made through Public Service Commission, it would amount to appointment of an IAS Officer without following the selection process. If such practice and procedure is allowed to be followed, it will create chaos in the Service Jurisprudence and will encourage appointment by back door entry.

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It is a fact that the State has allowed the petitioners to continue right from their initial appointment till today and have utilized their services. They have lost their youth while discharging their duties as lecturers/ instructors, is an important fact worth consideration. 24. As discussed hereinabove, the petitioners have no right for seeking a writ of mandamus to declare them to be appointed on contract basis. It is also well established that a person, who is appointed without following due process of law, cannot claim that he should be declared to have been appointed in due course, in terms of the judgment titled Secretary, State of

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Karnataka and others vs. Uma Devi (3) and others (2006) 4 SCC1. It is apt to reproduce para 45 of the said judgment herein:

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“45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is

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not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of

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constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.”

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As discussed hereinabove, the petitioners

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cannot make march over such officers, who have been appointed through a due selection process, which is the grievance projected by the appellants in LPA No. 107 of 2014. In series of judgments, same principles of law have been laid down by the apex Court.

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In Union of India and another vs. Prof. S.K.

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Sharma reported in AIR 1992 SC 1188 in para 8, it has been held as under:

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“8. In the circumstances mentioned above we are clearly of the view that the respondent was not entitled to claim his seniority on the post of Professor (Senior Scale) from 28-9-1969 and the appellants had rightly counted his seniority from 29-91973 when he was regularly selected in accordance with the rules on the said post. In the result we allow this appeal, set aside the judgment of the Tribunal dated 3-3-1988. In the circumstances of the case we direct no order as to costs.”

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27. In Chandramohan Pandurang Kajbaje v. State

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of Maharashtra and Ors. reported in 2008 AIR SCW 619 , it

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has been held as under:

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“10. On a cursory reading of the Resolution, as referred to above, we have no doubt in our mind that the Public Service Commission selected employees prior to the date of Resolution, were correctly treated as senior to the non-P.S.C. employees.

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11. In service jurisprudence the incumbent who did not belong to the stream of regularly and lawfully appointed through Public Service Commission cannot claim seniority vis-

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`-vis those who have been regularly and properly appointed

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through the Commission, till the appointments have become regular and are regularized by the appointing authority as a result of which their stream joins the regular stream. In Shitla Prasad Shukla (appellant) v. State of U.P. & Ors. (respondents) 1986 Supp. SCC 185, this Court held at page SCC 190 para 10 as under:

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10. An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellants cannot therefore succeed. What is more in matters of seniority the court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the court will not overturn the determination unless it would be unfair not to do so. In any view of the matter the appellant who did not even belong to the stream of regularly (he was allowed to teach only in an irregular and unauthorised manner) and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself. The view taken by the High Court is unexceptionable.”

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It is also apt to reproduce para 16 of the judgment in case titled State of Haryana and Ors. v. Vijay Singh and Ors ., reported in 2012 AIR SCW 4713, herein:

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“16 . It was neither the pleaded case of the respondents nor any document was produced before the High Court to show that the State Government had amended the 1955 Rules and empowered the District Education Officer to make appointment on the posts of Masters, Physical Training Instructor and Hindi Teacher or the requirement of consultation with the Board was dispensed with by issuing notification under proviso to Clause 6 of Notification dated 29.6.1973. Unfortunately, the High Court overlooked the fact that the respondents were neither appointed by the competent authority on the recommendations made by the Board nor they were placed on probation. Therefore, the conclusion recorded by the High Court that the respondents' initial appointments were regular and, therefore, ad hoc service was liable to be counted for the purpose of fixation of seniority is legally unsustainable.”

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29. In Bhupendra Nath Hazarika and Anr. v. State

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of Assam and Ors., reported in 2013 AIR SCW 401, the apex Court

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in para 33 held as under:

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“33. Recently, in State of Haryana and others v. Vijay Singh and others [(2012) 8 SCC 633], the question arose with regard to the fixation of seniority in the backdrop of ad hoc initial appointment made de hors the statutory rules but later on services were regularized by the State Government. The Court took note of the fact that the respondents therein were neither appointed by the competent authority on the recommendations made by the Board which was constituted by the Governor of Haryana nor were they placed on probation as required under the rules and, therefore, their ad hoc period could not be counted for the purpose of fixation of seniority. Thus, emphasis was laid that when appointment is made without following the procedure prescribed under the rules, the appointees are not

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entitled to have the seniority fixed on the basis of the total length of service. In essence, it has been ruled that when the appointment is made de hors the rules, the appointee cannot claim seniority even if his appointment is later on regularized.”

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30. In Amarendra Kumar Mohapatra and others v.

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State of Orissa and others reported in 2014 AIR SCW 1894, it

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has been held as under:-

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“65.There was some debate at the bar whether the case at hand is covered by corollary to proposition A or by proposition B (supra). But having given our consideration to the submissions at the Bar we are inclined to agree with Mr. Rao’s submission that the case at hand is more appropriately covered by proposition B extracted above. We say so because the initial appointment of ad hoc Assistant Engineers in the instant case was not made by following the procedure laid down by the Rules. Even so, the appointees had continued in the posts uninterruptedly till the Validation Act regularised their service. There is, in the light of those two significant aspects, no room for holding that grant of seniority and other benefits referred to in Section 3(3) of the impugned Act were legally impermissible or violated any vested right of the in service Assistant Engineers appointed from any other source. Proposition A, in our opinion, deals with a situation where an incumbent is appointed to a post according to the rules but the question that arises for determination is whether his seniority should be counted from the date of his appointment or from the date of his confirmation in the said service. The corollary under proposition A, in our opinion, deals with an entirely different situation, namely, where the appointment is ad hoc and made as a stop-gaparrangement in which case officiation in such post cannot be taken into consideration for seniority. Be that as it may, as between proposition A and B the case at hand falls more accurately under proposition B which permits grant of seniority w.e.f. the date the appointees first started officiating followed by the regularization of their service as in the case at hand.

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31. In a recent judgment titled Vireshwar Singh

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and others v. Municipal Corporation of Delhi and

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others reported in 2014 AIR SCW 5480 it has been held as

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under:-

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“17. The principle laid down in Narender Chadha (AIR 1986 SC 638) was approved by the Constitution Bench in Direct Recruit Class II (AIR 1990 SC 1607) as the promotion of the officers on ad hoc basis was found to be “without following the procedure laid down under the Rules.” That apart, what was approved in the Direct Recruit Class II (supra) is in the following terms.

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“We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.” {Para 13}

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18. In State of West Bengal and Others Vs. Aghore Nath Dey and Others (supra) a three Judges Bench of this Court has held that in view of the lis involved in Narender Chadha (supra) i.e. inter se seniority of direct recruits and promotees, the said decision cannot be applied to cases where the initial appointment was not according to the Rules. Paras 19 and 20 of the decision in State of West Bengal (supra) may be usefully extracted hereinbelow.

¶136

“19. The constitution bench in Maharashtra Engineers case, while dealing with Narender Chadha emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus: (SCC p. 726, para 13)

¶137

“We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.”

¶138

…20…

¶139

20. The constitution bench having dealt with Narender Chadha in this manner, to indicate the above principle, that decision cannot be construed to apply to cases where the initial appointment was not according to rules.”

¶140

19. All the aforesaid discussion would lead us to the conclusion that any departure from the views expressed and conclusions reached in Dr. Anuradha Bodi (AIR 1998 SC 2093) will not be necessary or justified. Accordingly, we do not find any merit or substance in the appeals under consideration. They are, therefore, dismissed but without any order as to costs.”

¶141

Thus, the grievance projected by the

¶142

appellants in LPA No. 107 of 2014 is well founded.

¶143

The appellants in LPA No. 193 of 2014 have invoked the jurisdiction of this Court on the ground that they have lost their right of participation. They have no right to file the appeal for the simple reason that they have no locus standi . It is moot question whether they are eligible to compete and whether they could make a grade. It is beaten law of the land that even selection does not create any right in favour of a selected candidate. Thus, LPA No. 193 of 2014 has no force. Accordingly, the same is dismissed.

¶144

The writ petitioners in CWPs No. 3789 and 6610 of 2014 have sought similar reliefs, which have been granted to the petitioners, in terms of the impugned judgment. They are fencer. They were watching from a distance that what will happen to the writ petitioners in the

¶145

…21…

¶146

batch of writ petitions. After noticing the judgment, they have come to the Court, are caught by delay and laches as held by the apex Court in Nadia Distt. Primary School

¶147

Council vs. Sristidhar Biswas AIR 2007 SC 2640 . It is apt to

¶148

reproduce the relevant portion of para 4 herein:

¶149

“4. We have heard learned counsel for the parties. Learned counsel for the appellants submitted that the persons who had not approached the Court in time and waited for the result of the decision of other cases cannot stand to benefit. The Court only gives the benefit to the persons who were vigilant about their rights and not who sit in fence. Mallick’s case was decided in 1982, in 1989 Dibakar Pal filed the petition and thereafter in 1989 respondents herein filed the writ petition. Thereafter petition filed by Dibakar Pal challenging the panel of 1980 was hopelessly belated. Likewise the present writ petition filed by the respondents herein. The explanation that the respondents waited for the judgment in Mallick’s case of Dibakar’s case, is hardly relevant……”

¶150

35. The apex court in Ghulam Rasool Lone vs. State

¶151

of J & K, 2009 AIR SCW 5260, laid down the same principles

¶152

of law. It is apt to reproduce the relevant portion of paras 14 and 18 herein:

¶153

“14. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and latches. It is now well settled that who claims equity must enforce his claim within a reasonable time…….

¶154

18. While considering the question of delay and latches on the part of the petitioner, the court must also consider the effect thereof. Promotion of Hamidullah Dar was effected in the year 1987. Abdul Rashid Rather filed his writ petition immediately after the promotion was granted. He, therefore, was not guilty of any delay in

¶155

…22…

¶156

ventilating his grievances. It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rashid Rather was junior to him. The Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence.”

¶157

The same principles of law have been laid down by

¶158

the apex Court in a latest judgment in State of Uttar Pradesh & Ors. v. Arvind Kumar Srivastava & Ors JT 2014 (12) SC 94 , and it

¶159

has been held as under:

¶160

“23………

¶161

1……..

¶162

(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.”

¶163

24.Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine

¶164

…23…

¶165

years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.”

¶166

Having said so, the impugned judgment rendered by the learned Single Judge is not sustainable.

¶167

The question is what relief is to be granted to the writ petitioners, who have spent their youth and are now not eligible to compete, in the competitive examination. The State has also admitted that they were appointed in order to overcome shortage of teaching staff and a short procedure was thus adopted for their selection.

¶168

The Authorities have also made recommendation converting their services on contractual basis. It is apt to reproduce Annexure P3 dated 25.4.2011, a communication sent to the Secretary (Technical Education) to the Government of H.P.

¶169

“ DIRECTORATE OF TECHNICAL EDUCATION VOCATIONAL AND INDUSTRIAL TRAINING H.P. SUNDERNAGAR. No.STV (TE)H:B (2)8/C-Vol-XIV-16035 dated 25.4.2011.

¶170

¶171

The Secretary, (Technical Education) to the Govt. of H.P. Shimla-2.

¶172

Sub: Converting of the services of the employee working on hourly basis/consolidated salary under Student Fund/Student Welfare Fund in the Department into contract basis.

¶173

…24…

¶174

“Please refer to your letter No. EDN(TE)B(15) 8/2009 dated 14.3.2011 on the above cited subject.

¶175

In this connection, I have the honour to bring to your kind notice that a number of posts falling vacant due to the retirements, promotions and other reasons in Technical Educational Institutions are required to be filled up immediately in the interest of teaching work. It is also intimated that in the recent past, the admission intake in various disciplines has increased in polytechnics and a number of new trades have also been introduced in Industrial Training Institutes without creation of posts of the Training Instructors. Government Polytechnics at Talwar has been established, where only 08 posts have been created and no post of Engineering-faculty, supporting technical staff ministerial and Class-IV has been created. The posts created for Government Polytechnic Banikhet and Chamba have also not been allowed to be filled-up. There is a complete ban on direct recruitments, resultantly no appointments can be made even on contract basis without seeking the prior approval of Government. The process of seeking the approval of the Government for creation of additional posts, permission for filling-up of the vacant posts and recruitment through the concerned recruitment agencies is time consuming and cumbersome. In view of the aforesaid, the Department is facing acute shortage of staff in Technical Education Institutions and same is adversely affecting the teaching work. The posts in the Technical Educational Institutions can not be let vacant for a long as it affects the very purpose for which they have been created.

¶176

In view of the aforesaid, the department engages teaching staff in Technical Educational Institutions under the control of Department on lecture/hourly basis. A number of teachers/ staff have been engaged almost in all the Institutions under the Student Fund of the Institute by calling applications through Employment office and conducting the Interviews as per the requirement of R&P Rules of the concerned post at the level of concerned Institution so that the teaching/ training of the students may not suffer. A number of persons so employed are continuing as such for the last 4/5 years.

¶177

A number of representations made to the Govt. of HP have been received for conversion of their such services to contract basis.

¶178

…25…

¶179

As per the policy of the Government an employee has to work for about 40 to 42 hours in a week. Therefore, the considered view of the Department is that Government may consider the demand/ request of those employees who fulfill the requisite qualifications as per the R& P Rules and have been working more than 5 years continuously and have completed 9600 hours. It is submitted that Govt. may consider such cases for appointment on contract basis against the existing sanctioned posts by making a policy. It is further submitted that this situation is peculiar being department specific and there is a strong premise for evolving policy in respect of Technical Education Department by the State Govt.”

¶180

Submitted for consideration and appropriate directions please.

¶181

Yours faithfully, Director Technical Education Vocational & Industrial Training H.P. Sundernagar.”

¶182

In the given facts and circumstances of the case, we

¶183

deem it proper to direct the State Government to examine the case of the writ petitioners for regularization or conversion on contractual basis, while keeping in view the recommendations, as per Annexure P-3, supra.

¶184

As a corollary to the aforesaid discussion and observations, the LPAs are allowed, the impugned judgment is set aside and the writ petitions are disposed of alongwith writ petitions (CWPs No. 3789 and 6610 of 2014), as indicated hereinabove.

¶185

All the LPAs and the writ petitions are disposed of accordingly. Copy of this judgment be placed on each of the files.

¶186

(Mansoor Ahmad Mir) Chief Justice.

¶187

December 03, 2014. (Tarlok Singh Chauhan) (cm Thakur) Judge

State of H.P. v. Rajinder Singh

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State of H.P. v. Rajinder Singh

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