Malkiyat Singh and Others Vs State of Hp and Others

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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LPA No. 243 of 2023 a/w LPA Nos. 245 of 2023, LPA Nos. 9, 75, 102 & 127 of 2024 and CWPOA No. 7641 of 2020

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Reserved on: 29.05.2025

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Date of decision: 07.10.2025

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LPA No. 243 of 2023 Shyam Chand & Ors.		…Appellants
Vers	us
State of H.P. & Ors.		…Respondents
LPA No. 245 of 2023
Suresh Kumar & Ors.	Versus	…Appellants
State of H.P. & Ors.		...Respondents
LPA No. 9 of 2024
Shyam Lal & Ors.	Versus	…Appellants
State of H.P. & Ors.		...Respondents
LPA No. 75 of 2024 Malkiyat Singh & Ors.	Versus	…Appellants
State of H.P. & Ors.		...Respondents
LPA No. 102 of 2024 Satya Nand & Ors.	Versus	…Appellants
State of H.P. & Anr.		...Respondents
LPA No. 127 of 2024
Sunit Dutt & Ors.	Versus	…Appellants
State of H.P. & Ors.		...Respondents
CWPOA No. 7641 of 2020 Vijay Kumar	Versus	…Petitioner
State of H.P. & Anr.		...Respondents

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Co ram

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Ranjan Sharma, Judge.

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Whether approved for reporting?

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For the Appellant(s)/: Mr. Shrawan Dogra, Sr. Advocate with Mr. J.P. Sharma, Advocate, for the appellant(s) in LPA No. 245, 9 and 75 of 2024. Mr. Kush Sharma, Advocate, for the appellant in LPA No. 243 of 2023. Ms. Anuja Mehta, Advocate vice Mr. Vishwa Bhushan, Advocate, for the petitioner in CWPOA No. 7641 of 2020. Mr. Sanjeev Bhushan, Sr. Advocate with Mr. Rajesh Kumar, Advocate, for the appellant(s), in LPA No. 102 and 127 of 2024

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For the Respondents: Mr. Balwinder Singh, Dy. A.G., for respondents-State in CWPOA No. 7641 of 2020 and all other appeals.

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Vivek Singh Thakur, Judge

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These Letters Patent Appeals, i.e. LPA No. 243, 245 of 2023, LPA Nos. 9, 75, 102 & 127 of 2024 and Civil Writ Petition (Original Application) No. 7641 of 2020, for involvement of common question of law and facts to be determined on the basis of similar pleadings and common documents, are being decided together by this judgment.

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Parties shall be referred as per their status in writ petitions/original application.

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Respondent-State had been appointing teachers in Government Schools on contract basis, either on the basis of scheme formulated by the State in the year, 1996 for this

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purpose or through prescribed agency i.e Public Service Commission/Service Selection Board in accordance with R&P Rules, with condition that on continuation of such contract service for a particular prescribed period, the services of such contract appointees were to be regularized. This category of the teachers for convenience hereinafter shall be referred to as

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‘ Category-A ’.

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Vide notification dated 11.05.2018, respondent-State directed regularization of all its contract employees who had completed three years contract service as on 31.03.2018.

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Respondents-State, in the year, 2006, formulated Parents Teacher Association Gran-in-Aid Policy 2006, (for short ‘ PTA-GIA ’), delegating powers on Parents Teacher Association to engage the teachers in their respective schools as per requirement against the sanctioned post lying vacant since a long period for one or other reason, in order to smooth running of the school and to avoid adverse impact on the education of the students/children studying in those schools.

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All the petitioners herein were initially appointed on PTA basis and were covered under the aforesaid policy of the State.

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Petition bearing CWP No. 6916 of 2011 , titled as Pankaj Kumar vs. State of H.P. & Ors., 2014 SCC Online HP 5944 alongwith other petitions, was filed by some persons

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assailing the decision of the Government to appoint PTA teachers against the vacancy instead of recruiting regular teachers in accordance with R& P Rules.

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On 16.08.2013, respondent-State decided to take over services of PTA teachers on contract basis on completion of 7 years of service. This category of teachers, for convenience shall be referred hereinafter as ‘ Category-B ’.

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CWP No. 6916 of 2011 was dismissed by this High Court on 09.12.2014, upholding the decision of the State to take over services of PTA teachers (Category-B) on contract basis.

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After dismissal of CWP No. 6916 of 2011, in pursuance to aforesaid decision of Government, services of many PTA teachers were converted on contract basis in January, 2015. This category of teachers shall be referred as ‘ Category B-I ’.

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Before converting PTA services of all PTA teachers on contract basis, in SLP No. 1426 of 2015 (Civil Appeal Nos. 2813, 2814 and 2815 of 2017) filed before the Apex Court against the judgment dated 09.12.2014, the Apex Court vide order dated 22.01.2015 directed to maintain status quo till orders to the contrary were passed.

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For one reason or other, services of some PTA teachers could not be taken over on contract basis before

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passing of status quo order by the Apex Court. These teachers shall be referred hereinafter as ‘ Category B-II ’.

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In sequel to aforesaid injunction order dated 22.01.2015, passed by the Apex Court, services of the left out PTA teachers (Category B-II) could not be converted into contract till dismissal of the aforesaid Civil Appeals, arising out of SLP (C) No. 1426 of 2015 and other SLPs, vide judgment dated 17.04.2020, titled Chander Mohan Negi & Ors. vs. State of H. P. & Ors., reported in (2020) 5 SCC 732. As such they ( BII ) continued as PTA teachers.

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During pendency of the aforesaid appeals before the Apex Court and continuation of interim orders, services of Category B-I , whose services were converted from PTA into contract before passing of interim order by the Apex Court in January, 2015, benefit of regularization in furtherance to policy decision of the State dated 11.05.2018 could not be extended to them before passing of judgment dated 17.04.2020, but they were ordered to be regularized w.e.f. August, 2020, after passing of judgment in Chander Mohan’s case referred supra . Appointees of Category B-I, who continued on contract basis till their regularization in August, 2020, shall be referred as ‘ Category B-I(a) ’.

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Some of teachers of Category B-I , shifted status of their appointments in the year 2018-19, though on contract

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basis, but according to R & P Rules, either as selectee on batchwise basis or through Public Service Commission/Service Selection Board. This category shall be referred as ‘ Category B- I(b).

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The teachers of category of B-I(b) , before joining as selectee on the basis of batch-wise appointment or through Commission, had resigned from their previous PTA-contract service and thereafter had joined as selectee on batch-wise basis or through Commission either on the same day or subsequent day but on the same post almost in the same school in the same Education Department. These teachers were not extended benefits of regularization after completion of their three years service by counting the same from January, 2015, but they were considered as fresh contract appointee in the years 2018-19 for tendering their resignation and by referring Rule 26 CCS Pension (Rules), 1972, which provides that in case where government servant resigned from government service, no benefit of past service were declared to be admissible.

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PTA appointees whose services, despite fulfilling all requisite conditions, could not be converted into contract basis from PTA-GIA shall be referred as ‘ Category B-II ’.

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In Category B-II , there is sub Category B-II(a) of those teachers, who continued as PTA-GIA teachers till decision of Chander Mohan Negi’s case in 2020 and their services were converted into contract basis thereafter but they were not given benefit of service rendered from 2015 to date of their appointments on contract.

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In category B-II, there is also sub-category B-II(b) , who during their appointments as PTA-GIA, but before judgment of the Apex Court in Chander Mohan Negi case , were appointed on contract basis either on batch-wise basis or through Public Service Commission/Service Selection Board. The Teachers of category of B-II(b) , before joining as selectee on the basis of batch-wise appointment or through Commission, had resigned from their previous PTA service and thereafter had joined as selectee on batch-wise basis or through Commission either on the same day or subsequent day but on the same post almost in the same school in the same Education Department. These teachers were also not given benefit of PTA service rendered by them from 2015 to date of their appointment on contract on batch-wise basis or through Commission/Selection Board.

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After dismissal of appeals preferred by Chander Mohan Negi & Ors ., the teachers of Category B-I(a) were regularized from August, 2020. This category of teachers

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approached the Court by filing various writ petitions which were clubbed with CWP No. 342 of 2021, titled Yashwant Singh and Ors. vs. State of H.P. & Ors. , wherein it was claimed that they were entitled for regularization in terms of the policy of the State Government notified vide Notification dated 11.05.2018, alongwith other contract employees, who had completed three years contract service on 31.03.2018, being eligible for that, but were not regularized for the pendency of appeals before the Apex Court preferred by Chander Mohan Negi and others and interim order passed therein. It was claimed that instead of their regularization w.e.f. 20.08.2020, as directed vide order dated 05.08.2020, the regularisation was to be ordered w.e.f. 01.04.2018, as they had completed three years contract service as on 31.03.2018 for taking over or converting their services from PTA to contract basis in January, 2015.

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The aforesaid petition (CWP No. 342 of 2021) was allowed by a Division Bench of this High Court. Following paras thereof are relevant to be referred:

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“1. PETITIONER’S CASE (i) The facts in CWP 342 of 2021 are being considered hereunder for the sake of precision and also to avoid prolixity.

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(ii) Petitioners were appointed in 2006-07 against the posts of Lecturers School Cadre/ Lecturer School (New)/ PGTs under a scheme formulated by the State Government known as Grant-in-aid to

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Parent Teachers Association Rules 2006 (for short, ‘2006 Rules’).

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(iii) State Government vide Notification dated 16.08.2013 decided to take over of services of petitioners on contract basis. Such decision became subject matter of challenge through Civil Writ Petitions filed before this Court. However, the controversy was set at rest by Judgment dated 9.12.2014 passed by a Division Bench of this Court ruling in favour of Government’s decision and thereafter way was cleared for taking over of services of teachers on contract basis.

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(iv) Services of petitioners were eventually taken over on contract basis vide orders dated 3.1.2015, 7.1.2015 and 15.1.2015.

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(v) On 11.5.2018 State Government issued Notification directing regularisation of all its contract employees who had completed 3 years contract service as on 31.3.2018. Petitioners though also were eligible for regularisation having rendered three years contract service as on 31.3.2018, but were not regularised purportedly for the reason that appeals against the judgment dated 9.12.2014 were pending before Hon’ble Supreme court.

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(vi) Hon’ble Supreme Court dismissed the appeals against judgment dated 9.12.2014 of this Court vide its judgment dated 17.4.2020 [reported in (2020) 5 SCC 732 ]. Petitioners submitted their detailed representation to the respondents.

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(vii) Services of petitioners were regularised w.e.f. 20.8.2020 vide orders dated 5.8.2020.

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3. RESPONDENT’S STAND AND JUSTIFICATION

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From the initial reply of respondents and their supplementary affidavits available on record following defences can be culled out:

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(a) PTA provided teachers were not regularised due to pendency of SLP 1426 of 2015.

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(b) The appointment of PTA lecturers was not in accordance with R & P Rules. Their initial appointment was under a Policy, whereas other lecturers appointed by the Government on contract basis were recruited as per R & P Rules through State Service Commission.

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(c) Though the Supreme Court and High Court had observed the initial appointments of petitioners under the 2006 Police as legal but there were no directions to regularise their services.

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(d) State has the power to take conscious decisions which cannot be interfered with.

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(e) The mode and purpose of appointment of PTA teachers was different, their engagement was made for particular school by the PTA of the School that too as a stop gap arrangement, whereas appointment of others was made through State Service Commission.

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(f) The regularisation cannot be claimed as matter of right from a particular date. Conscious decision is taken by the Government regarding regularisation and thereafter the regularisation is made from a particular date as decided.

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(g) In addition, it has also been contended at the stage of hearing that out of the teachers appointed under 2006 rules some were taken over on contract and some remained,

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therefore, they being a homogeneous class could not be discriminated inter-se .

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Government then took a conscious decision to take over the services of all such PTA-GIA employed teachers who had completed seven years of continuous service. Accordingly, services of petitioners were taken on Government contracts in January 2015. Noticeably, this decision of State Government was unsuccessfully challenged by certain private persons before this court and then the Supreme Court. It is important to notice that at that stage State Government justified and supported its decision by emphasizing its need and importance. In one of the petitions which laid challenge to above stated decision of the Government being CWP 7728 of 2013 the State Government by way of an affidavit submitted as under:

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“13. That it is relevant to submit that in case regular recruitments were made in the teaching sector the State Government would not have been in a position to maintain Pupil Teacher Ratio (PTR) as maximum part of financial resources would have been consumed in meeting the salary component of Regular teachers …….

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14. That with the passage of time the services of PTA and GIA, Para Teachers and PAT had to be continued as their engagement had obtaining desired results as the number of Schools had also drastically increased and the State was also facing financial constraints to engage regular teachers.”

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In above noticed circumstances, the question before us is whether discriminating petitioners with other contract employees in terms of implementation of Notification dated 11.05.2018 is legally permissible?

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Thus, the initial appointment of petitioners being under 2006 policy with requisite qualifications and petitioners having put in sufficient numbers of years of service, the step of the State Government to take their services on contract was a perfectly legal measure. Once their services were taken on contract, petitioners came atpar with those employees who were recruited on contract basis under the relevant R & P Rules. Employment on contract being only a mode of recruitment, no distinction could be drawn between the petitioners, who were taken on contract after rendering seven years' service as PTAGIA teachers and the employees whose initial recruitment itself was on contract basis under the relevant R & P Rules. The distinction now drawn between these two categories by respondents on the ground that the latter were recruited though State Service Commission, whereas former through PTA-GIA is clearly misplaced. In both the cases the incumbents hold requisite qualification. The recruitment in either of the cases is in terms of apposite policies/rules. Thus, the given facts and circumstances of the case do not suggest any intelligible differentia on the basis of which respondents have sought to distinguish petitioners from other contract employees of the State Government and further there is total absence of any rational in relation to the object sought to be achieved. 15. The other ground pleaded by respondents justifying regularisation of petitioners from a subsequent date is the pendency of litigations, as detailed above. Such ground deserves to be rejected for the reasons firstly, that the litigation was not at the instance of petitioners and secondly, that even the stand of respondents herein, in the entire said litigation, was not adversarial to the case

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of petitioners. Petitioners cannot be penalized without any fault or default on their part.

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We do not endorse such justification of respondents for the reason that it was not a policy decision separately taken for the petitioners. The policy decision had been taken on 11.5.2018 to regularise the services of all contract employees of State Government who had completed service of three years. No exception was carved for the petitioners. Thus, the policy was the same. The petitioners have been discriminated qua date of its implementation only. Whereas all other contract employees were regularised w.e.f. 1.4.2018, petitioners were regularised w.e.f. 20.8.2020, which in our considered view is clearly violative of Articles 14 and 16 of the Constitution of India and hence unsustainable.

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It was also not a case of fixation of cut-off date. One of the reasons assigned by respondents for its inability to regularise petitioners from earlier date is the pendency of appeals before the Hon’ble Supreme Court. That being so, it does not now lie in the mouth of respondents to turn around and try to justify its action by creating a fiction of class differentiation between the petitioners and other contract employees. It is not the case of respondents that even in the absence of pendency of appeals before Hon’ble Supreme Court the petitioners would have been differentiated with other contract employees of the State Government.

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Lastly another futile attempt has been made on behalf of respondents by contending that some of the PTA-GIA teachers were taken on contract and some were left out, therefore, they being homogeneous class cannot be differentiated. According to respondents the grant of

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claimed benefit of regularisation to petitioners will discriminate the PTA-GIA teachers whose services were not taken on contract. Again, we do not find any reason to subscribe to the view expounded by respondents. Petitioners are seeking the parity with other contract employees of the State Government on the premise of having formed the same class with them, whereas the rights, if any, of those who have not yet been taken on contract is not the subject matter of these petitions. Petitioners were taken on contract when they qualified the criteria of having served as PTA-GIA teachers for seven years. Petitioners cannot be compared with those who had not fulfilled the requisite criteria or were not taken on contract for any other reason.

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In view of above discussion, the petitions are allowed. Respondents are directed to regularise the petitioners w.e.f. the due date i.e. 1.4.2018. Needless to say that the consequential benefits shall follow. The petitions are accordingly disposed of so also the miscellaneous pending applications(s), if any.”

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SLP(C) No. 6966 of 2023, titled State of H.P. vs. Yashwant Singh & Ors. , preferred against the aforesaid judgment passed in CWP No. 342 of 2021, was dismissed by the Apex Court vide order dated 24.04.2023. Thereafter, the aforesaid judgment passed in Yashwant Singh and other cases has been implemented by the respondent-State.

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Grievance of the Category B-II teachers is that their services could not be converted into contract despite decision of the State Government on account of interim order passed by the

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Apex Court, but for dismissal of main petition on 17.04.2020, their services, rendered by them, though as PTA-GIA teacher w.e.f. 2015 onwards, but are required to be treated as services rendered on contract basis as they were fulfilling all requirements/eligibility for conversion of their PTA-GIA service into contract service but the same could not be converted on account of interim order passed by the Apex Court and they should not be made to suffer for no fault on their part, and as the interim order merged in the final order, therefore, it has to be construed that no interim order was in existence and accordingly services of these petitioners has to be deemed to have been converted on contract basis since January, 2015 with all consequential benefits and thus this period of service has to be counted for extension of benefit of regularization after three years of completion of contract service.

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Teachers of Category B-I(b) , B-II(a) and B-II(b) , for claiming benefit of services rendered by them as contract or PTA from January, 2015 onwards till their regular appointment or contract appointment on conversion or batch-wise basis or through Commission/Selection Board have approached the Court seeking directions to the respondent-State to count their contract services rendered from January, 2015 onwards.

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Claim of the teachers of Categories B-I(b) and BII(b) is that because of interim order passed by the Apex Court

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and pendency of SLP/civil appeals preferred in Chander Mohan Negi’s case , there was no possibility of decision of the appeal/SLP in near future and some of these teachers were at the verge of crossing maximum age i.e. 45 years prescribed for recruitment in government service, and they were offered appointment during the intervening period, in accordance with R&P Rules either through commission/Selection Board or on batch-wise basis in the same department against the same post in the year, 2018, 2019 and 2020, and therefore, they were compelled to opt for subsequent contract appointment after tendering resignation from earlier post(s) being occupied by them on PTA basis or contract converted from the PTA-GIA appointment, which was under challenge before the Apex Court and order of status quo had been passed by the Apex Court. Therefore, it has been contended on their behalf that there is no fault on their part in opting appointment on batch-wise basis or through Commission/Selection Board but though on contract basis, however, after tendering resignation from the posts being occupied by them as PTA or PTA-Contract appointees.

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It is further case of aforesaid teachers ( B-I(b) and B-II(b) ) that before resignation and on rejoining after resignation, neither post nor school or department was changed, whereas Office Memorandum dated 13.08.1991, issued by Finance Department (Pension Cell) Government of Himachal

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Pradesh, clearly provides that if resignation is submitted for taking up even another government service then, past service is to be counted for pensionery benefits by treating such resignation as ‘ technical ’. Therefore, even that employee, who resigned for taking up another government post, which may not be the same post in the same department, is also entitled for counting of his past contract service. Therefore, teachers of categories B-I(b) and B-II(b) are also entitled for counting of their past PTA-Contract service rendered by them on the same post in the same school in the same department, and particularly also in view of the peculiar facts and circumstances of the present case, as these persons were compelled to shift to appointment on batch-wise basis or as direct recruit through Commission/Selection Board, but for the litigation wherein interim order to maintain status quo was in force and these persons were going to lose their right for appointment and to join the government service keeping in view their age because it is settled law that no one should suffer for the act of the Court.

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The Teachers ( B-II ), whose services could not be converted into contract services in January, 2015, on account of interim order dated 22.01.2015, passed by the Apex Court, and they continued as PTA-GIA teacher till judgment of dismissal passed by the Apex Court in Chander Mohan Negi’s case on 17.04.2020, also claim similar treatment as has been given to

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appointees of Category B-I(a) on the ground that it was not on account of their fault that their services were not converted into contract basis in January, 2015 but only for the interim orders passed by the Apex Court and pendency of civil appeal preferred by Chander Mohan Negi and others , their services continued as PTA-GIA appointees.

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To substantiate aforesaid plea, reliance has been placed on the pronouncement of the Apex Court in South Easter Coalfields Ltd. vs. State of M.P. & Ors. (2003) 8 SCC 648 , by referring paras 26 to 28 thereof, which read as

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under:-

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“26. In our opinion, the principle of restitution takes care of this submission. The word 'restitution' in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution or decree or order or the court or in direct consequence of a decree or order (See : Zafar Khan and Ors. v. Board of Revenue, U.P., and Ors., . In law, the term 'restitution' is used in three senses; (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, Seventh Edition, p.1315). The Law of Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that 'restitution' is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done.

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"Often, the result in either meaning of the term would be the same. ..... Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defendant is guilty of a non-tortuous misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed."

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The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 of the C.P.C. speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with ail expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution would far

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from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing, wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.

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Section 144 of the C.P.C. is not the fountain source of restitution; it is rather a statutory recognition of a preexisting rule of justice, equity and fair play. That is why it is often held that even away from Section 144 the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties. In Jai Berham v. Kedar Nath Marwari (1922) 49 LA. 351, their Lordships of the Privy council said:

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"It is the duty of the Court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. Cairns, L.C., said in Rodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C.:

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"One of the first and highest duties of all Courts is to take cars that the act of the Court does no injury to any of the suitors and when the expression, the act

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of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case".

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This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it, A.A. Nadar v. S.P. Rathinasami, (1971) 1 MLJ 220. In the exercise of such inherent power the Courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.

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That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise corned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the set of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same

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position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.”

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Reliance has also been placed on the

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pronouncement of the Apex Court in Amarjeet Singh vs. Devi

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Ratan (2010) 1 SCC 417, by referring paras 17 to 20, which read as under:-

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“17. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim " Actus Curiae neminem gravabit ", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Shiv Shankar & Ors. Vs. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries Ltd. Vs. Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC 423).

¶140

In Ram Krishna Verma & Ors. Vs. State of U.P. & Ors., AIR 1992 SC 1888 this Court examined the similar issue while placing reliance upon its earlier judgment in Grindlays Bank Limited Vs. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and petitioner takes advantage thereof and ultimately the petition is found to be without any merit

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and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized.

¶144

In Mahadeo Savlaram Sheke & Ors. Vs. Pune Municipal Corporation & Anr., (1995) 3 SCC 33, this Court observed that while granting the interim relief, the Court in exercise of its discretionary power should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the Court while exercising its equity jurisdiction in granting injunction is also competent to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the Court. The Court can do so in exercise of its inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the Court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. Such a procedure is necessary as a check on abuse of the process of the Court and adequately compensate the damages or injury suffered by the defendant by act of the Court at the behest of the plaintiff.

¶145

In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., AIR 2003 SC 4482, this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on

¶146

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account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.”

¶149

Learned Advocate General to substantiate the plea of the respondent-State that petitioners belonging to categories BI(b) and B-II(b) are not entitled for the benefits of service rendered prior to regularization, has referred the judgment dated 05.12.2019, passed by the Apex Court in Civil Appeal No. 9676 of 2019, @ SLP (C) No. 6553 of 2018, titled BSES Yamuna Power Ltd. vs. Ghanshyam Chand Sharma . The Reliance placed on this judgment is misconceived as in that case the issue involved was that after acceptance of voluntary resignation, whether such voluntary resignation can be considered as a voluntary retirement and in that case resignation was not

¶150

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submitted to join another government service. The employee therein had submitted his voluntary resignation from his service on 07.07.1990, which was accepted by the employer w.e.f. 10.07.1990 and subsequently, respondent was denied pensionary benefits on two grounds i.e. he had not completed 20 years service making him ineligible for grant of pension and secondly by resigning voluntarily, he had forfeited his past service, therefore, it was held that he could not claim pensionary benefits.

¶153

In the present case, the issue involved is whether past service rendered on PTA-contract basis, after tendering resignation to join the same government service but in different recruitment process has to be considered for extending consequential service benefits or not. The issue involved in the present case is entirely different than the issue involved in Ganshyam Chand Sharma’s case .

¶154

In this regard, learned Advocate General has also referred the judgment of the Apex Court in Shri Ram Manohar

¶155

Bande vs. Uktranit Mandal and others, 2024 SCC Online

¶156

SC 647:AIR 2024 SC 2325, referring paras 21 and 22 thereof, which read as under:-

¶157

“21. At this juncture, it becomes necessary to point out that as per service jurisprudence, the employment is terminated from the date on which the letter of resignation is accepted by the appropriate authority. The

¶158

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appellant, in this case, tendered his resignation letter on 10.10.2017 and this resignation letter came be accepted on 14.10.2017, hence the date of termination of the services of the appellant for the purpose of adjudication would be 14.10.2017.

¶161

This Court in North Zone Cultural Centre and another vs. Vedpathi Dinesh Kumar reported in (2003) 5 SCC 455 has held that resignation would be effective on its acceptance, even if the acceptance is not communicated as long as rules or guidelines governing the resignation do not mandate such acceptance of resignation is to be communicated. In the North Zone (supra) case, the employee who was a temporary Accountant tendered his resignation from the post held by him on 18.11.1988. With effect from the said date, the resignation was accepted by the Director on the very same day with the endorsement "Accepted, hand over charge". The employee vide Telegram on 21.11.1988 withdrew his resignation stating that the same was obtained by pressure. He was communicated vide letter dated 18.11.1988 regarding acceptance of his resignation. The High Court allowed the writ petition on two grounds; (i) the acceptance of resignation was not communicated till the withdrawal and (ii) the employee was permitted to attend the duty even after acceptance of resignation. Setting aside the judgment of the High Court, this Court held that noncommunication of the acceptance does not make the resignation inoperative provided, there is, in fact, an acceptance before the withdrawal. It is also held that it is not open to the public servant to withdraw his resignation after it is accepted by the appropriate authority.”

¶162

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From the facts and the question involved in the aforesaid case also, it is apparent that the said judgment is also not applicable to the issue involved in the present matter.

¶165

Plea of the respondent-State that after resignation no benefit of past service is admissible is also misconceived in view of office memorandum dated 13.09.1991, issued by Himachal Pradesh Finance Department (Pension Cell), which reads as

¶166

under:-

¶167

“GOVERNMENT OF HIMACHAL PRADESH FINANCE DEPARTMENT (PENSION CELL)

¶168

No. Fin (Pen)A(3)-1/91 Dated Shimla-2,13/8/1991

¶169

OFFICE MEMORANDUM

¶170

Subjects- Resignation from Government Service by Government employees for Studies/Training counting of past service for purpose of pension.

¶171

The undersigned is, directed to say that as per provisions of Rule-26 of the CCS (Pension) Rules, 1972, in cases where Government servants resign from Government service, no benefit of past service is admissible. If resignation is submitted for taking up another Government service, then past service is counted for pensionary benefits by treating this resignation as Technical. In some cases the Government servants resign from Government service for studies or Training and are re-appointed in Government service later on, Proposal relating to allowing benefit of past service to such Government servants for purpose of pension/Gratuity was under consideration of the Himachal Pradesh Government for sometime past.

¶172

Governor, Himachal Pradesh is pleased to order that such Government servants who resign from service for carrying out studies/undergoing some training and are appointed in Government service later-on will be allowed benefit of their past service for pension/gratuity subject to fulfil-ment of the following conditions:-

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(a) The resignation is submitted by Government servant for carrying out studios/undergoing training and in resignation letter, there should be a a special mention that it is being submitted for above persons .

¶176

(b) Service rendered by the Govt, servant before resignation and re- appointment should be under Himachal Pradesh Government only.

¶177

(c) Period of interruption in service issue i.e, period between date of acceptance of resignation and upto data of re-appointment in service shall not be counted as qualifying services.

¶178

(d) Pest service will be counted as qualifying service only for purpose of gratuity and pension. Other benefits like pay fixation, seniority, love, leave encashment etc. will not be admissible in respect of past service.

¶179

(e) The interruption between two spells i.e. period between date of acceptance of resignation and date of re-appointment shall be automatically condoned However this will net count as qualifying service. No spacial sanction will be required for this purpose.

¶180

(f) Provisions of this Office Momorandum shall apply to all employees who retire after issue of this office Memorandum.

¶181

All Departments are requested to allow benefits of past service in cases referred to above subject to fulfillment of conditions mentioned above/approval of Finance Department is not necessary in cases covered under provisions of this office Memorandum. Appointing Authority can issue a sanction quoting this Office Memorandum while ensuring that condition prescribed above are satisfied. Necessary entries may be made in the service book accordingly.”

¶182

It is also apt to record that documents supplied by the respondent-State under RTI Act to some of the petitioners, which have been placed on record in CWP No. 295 of 2023 (LPA No. 243 of 2023) (Annexure P-8 Colly and Annexure P-9),

¶183

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establish that similar situated persons, namely, Shamsher Singh and Gagan, who had resigned from earlier PTA based appointment and had joined fresh as contract appointees on batch-wise basis or direct recruit through Commission/Selection Board, were permitted to tender resignation from subsequent appointment and further permitted to join their earlier services on PTA basis, that too, from different posts as, Shamsher Singh, firstly, was posted as PGT (History) as PTA teacher/contract through PTA and he resigned from the said post/appointment on 28.01.2019 and joined as TGT (Arts) according to R & P Rules on contract basis, but lateron 11.02.2019, he tendered resignation from subsequent appointment to the post of TGT (Arts) and thereafter he was permitted to join as PGT (History) again, the post from which he had resigned on 28.01.2019, and thereafter all consequential benefits for counting his contract service from January, 2015 were extended to him. Similarly, the same benefits were also extended to Gagan. These facts are also substantiated from office order dated 12.02.2019 issued by Director, Higher Education and 17.08.2020, issued by office of Deputy Director, Elementary Education.

¶186

In view of above, the observation of the learned Single Judge that resignation from contract service as PTA appointee and acceptance of contract service on batch-wise basis or through Commission, dis-entitles the petitioners from

¶187

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claiming right of past contract service is not sustainable particularly for office memorandum of the Government of Himachal Pradesh dated 13.08.1991.

¶190

Otherwise also, the status of the petitioners of contract appointees remain one and the same. In any case, in terms of office memorandum dated 13.08.1991, resignation of such appointees has to be considered as ‘technical’. It is not necessary to mention in the resignation that resignation was technical resignation but for fulfilling the requirement of office memorandum dated 13.08.1991 i.e. the resignation submitted for taking up another government service, the resignation has to be considered as technical.

¶191

In the given facts and circumstances, where, during pendency of litigation before the Apex Court and uncertainty with respect to date of decision thereof, and for approaching the maximum age prescribed for appointment in the Government service, shifting of some of the Teachers either from PTA appointment or PTA converted contract appointment to the appointment on contract, as per R&P Rules, on batch-wise basis and/or through Commission, Selection Board cannot be permitted as a basis to discriminate them by depriving them from the benefit as has been extended to the category ‘A’ w.e.f. 01.04.2018, which have also been extended to the category B- I(a) in compliance of judgment of Yashwant Singh’s case .

¶192

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The Teachers of all sub-categories contained in Category-B including the category of the petitioners in Yashwant Singh’s case B-I form a homogeneous class as apparent from facts and circumstances narrated supra. All of them were eligible and entitled for conversion of their PTA appointment into contract appointment in January, 2015, but for litigation, some of them left behind, but after dismissal of the Civil Appeal by the Apex Court in Chander Mohan Negi’s case on 17.04.2020, they are on the same footings. It is also a matter of fact that all the them continued to teach students in the same subject, the same school and in the same department. Therefore, they can not be discriminated on the ground that services of some of them were not converted on contract basis because of interim order passed by the Apex Court.

¶195

Petitioners were left out despite being the same homogeneous class with the appointees/teachers belonging to Category B-I(a) , who have been extended benefit of regularization w.e.f. 01.04.2018. There is no fault on the part of the teachers of B-I(b) category either in non-conversion of their PTA service into contract or in shifting from PTA or PTA-contract convertee to batch-wise/direct recruit contract appointees. The fact remains that teachers of B-I(b) category remained as contract employee either as PTA converted contract or batchwise/direct recruitment contract. Therefore, teachers of B-I(b)

¶196

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category are to be treated like B-I(a) category. Thus, all teachers of B-I category are one and the same class.

¶199

Similarly, there is no fault on the part of the teachers of B-II(a) and B-II(b) category either in non-conversion of their PTA service into contract or in shifting from PTA teachers to batch-wise/direct recruit contract appointees. Teachers of these categories are to be treated like B-I(b) and B-I(a) categories of teachers.

¶200

The PTA teachers ( Category of B-II ) whose services could not be converted into contract in January, 2015 on account of interim order passed by the Apex Court are also at no fault in their non-conversion into contract service. After dismissal of Civil Appeal by Apex Court in Chander Mohan’s case , they have to be treated in the manner like PTA-Teachers of B-I category. Therefore, all these teachers form a same and homogeneous class, which cannot be differentiated in the aforesaid given facts and circumstances to deny the benefits of regularization and consequential benefits thereof.

¶201

Right of the petitioners for conversion as contract teachers had accrued in January, 2015 and for regularisation and extension of service benefits had accrued in the year, 2018, for the decision taken by the State of Himachal Pradesh, but for interim order passed by the Apex Court, the said benefit could not be extended to them. Now, it is also a matter of fact that

¶202

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similarly situate persons ( B-I(a) ) have already been extended the same benefits w.e.f. 01.04.2018. Therefore, vested right has accrued in favour of the petitioners for the same benefit in consonance with verdict in the judgment dated 31.08.2022 passed in CWP No. 342 of 2021 after dismissal of the SLP (C) No. 6966 of 2023, by the Apex Court, which was preferred by the State against the judgment dated 31.08.2022, passed in CWP No. 342 of 2021, wherein it has been clearly held that PTA-GIA teachers after serving for 7 years, fulfilling criteria for conversion of their service on contract basis, have to be treated at par with other contract employees and are entitled for all benefits as available to other contract employees w.e.f. 01.04.2018 and, thus, have been held to be entitled for all consequential benefits after regularization from due date i.e. 01.04.2018. Therefore, right which has accrued in favour of the petitioners on account of pronouncement of the Court cannot be denied being similarly situated and such a discrimination is not permissible.

¶205

In view of above discussion, being similar situate persons, petitioners are also entitled for the benefits in terms of judgment dated 31.08.2022 passed in CWP No. 342 of 2021, which has been upheld by the Apex Court, such right flowing from the judgment of the competent court cannot be taken away.

¶206

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Accordingly, the appeals i.e. LPA Nos. 243, 245 of 2023, LPA Nos. 9, 75, 102 & 124 of 2024 and CWPOA No. 7641 of 2020 are allowed and the judgment passed by the learned Single Judge in respective CWPs No. 3024, 3346, 3361, 6370 of 2020, 295 and 4424 of 2023 are set aside with direction to the respondent-State to consider all teachers of B-I(b) , B-II(a) and B-II(b) , like B-I teachers and to regularize them from due date i.e. 01.04.2018 and extend all consequential benefits to them as has been extended in CWP No. 342 of 2021 and other connected matters by considering the petitioners herein as a contract appointee w.e.f. January, 2015 for all intents and purposes.

¶209

(Vivek Singh Thakur) Judge

(Ranjan Sharma)

07 October, 2025

Judge

(sanjeev)

Malkiyat Singh and Others v. State of Hp and Others

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Malkiyat Singh and Others v. State of Hp and Others

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