INTHEHIGHCOURTOFHIMACHALPRADESH,SHIMLA [CASE NUMBER]a/wLPAsNo. 65,66,70,71,76to83,100,101, .
109,122,181and182of2014 Reservedon:07.07.2015 Decidedon:15.07.2015 1.[CASE NUMBER] SukhDevKumar&others Appellants. r Versus StateofHimachalPradesh&others Respondents.
2.LPANo.65of2014 RameshChand&others Appellants.
Versus [ENTITY]&others Respondents.
RameshChand&others Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondents. (Registered)&others
LalitKumarBhandari&others Appellants.
:2: Versus .
[ENTITY]&others Respondents.
VijayBhimta&others Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondents. (Registered)&others
DevinderKumar&others Appellants.
Versus StateofH.P.&others Respondents.
SurinderKumar&others Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondents. (Registered)&others
RameshwariSharma&others Appellants.
Versus :3: [ENTITY]&others Respondents.
[ENTITY] Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondents. (Registered)&others
[ENTITY] Appellants.
Versus [ENTITY]&others Respondents.
[ENTITY] Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondents.
(Registered)&others
KamniSharma&others Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondents. (Registered)&others
:4: KhemChand&others Appellants.
Versus [ENTITY]&others Respondents.
[ENTITY] Appellants.
StateofH.P.&others r to Versus Respondents.
[ENTITY] Appellants.
Versus StateofHimachalPradesh&others Respondents.
[ENTITY] Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondents. (Registered)&others
[ENTITY] Appellants.
Versus :5: StateofHimachalPradesh&others Respondents.
StateofHimachalPradesh&others Appellants.
Versus [ENTITY] Respondent.
TheStateofHimachalPradesh&another Appellants.
Versus [ENTITY] awardeesJuniorBasicTeacherAssociation Respondent.
(Registered) Coram TheHon'bleMr.[ENTITY]ChiefJustice.
TheHon'bleMr.[ENTITY]Judge.
Whetherapprovedforreporting?Yes.
Fortheappellants: Mr.[ENTITY],Advocate.
Fortherespondents: Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, andMr.[ENTITY].[ENTITY] :6: [ENTITY], Deputy Advocate Generals,for respondentsState.
Ms. [ENTITY], Advocate, for respondentNo.4.
[CASE NUMBER] Fortheappellants: Mr.[ENTITY],Advocate.
Fortherespondents: Ms. [ENTITY], Advocate, for respondentNo.1.
Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY], Deputy Advocate Generals,for respondentsState.
LPAsNo.70&71of2014 Fortheappellants: Mr.[ENTITY],SeniorAdvocate,with Mr.[ENTITY],Advocate.
Fortherespondents: Ms. [ENTITY], Advocate, for respondentNo.1.
Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY], Deputy Advocate Generals,for respondentsState.
LPAsNo.76&100of2014 Fortheappellants: Mr.[ENTITY],Advocate.
:7: Fortherespondents: Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY] .
[ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY], Deputy Advocate Generals,for respondentsState.
Ms. [ENTITY], Advocate, for respondentNo.3.
LPAsNo.77&109of2014 Fortherespondents:
r to Fortheappellants: Mr.[ENTITY],Advocate.
Ms. [ENTITY], Advocate, for respondentNo.1.
Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY], Deputy Advocate Generals,for respondentsState.
LPAsNo.78to83of2014 Fortheappellants: Mr.[ENTITY],Advocate.
Fortherespondents: Ms. [ENTITY], Advocate, for respondentNo.1.
Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY], Deputy Advocate Generals,for respondentsState.
:8: Fortheappellants: Mr.[ENTITY],Advocate.
Fortherespondents: Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY], Deputy Advocate Generals,for respondentsState.
Ms. [ENTITY], Advocate, for respondentNo.4.
Fortheappellants: Mr.[ENTITY],Advocate.
Fortherespondents: Mr.[ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY], Deputy Advocate Generals,for respondentsState.
Ms. [ENTITY], Advocate, for respondentNo.4.
LPAsNo.181&182of2014 Fortheappellants: Mr. [ENTITY],AdvocateGeneral, with Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate Generals, and Mr. [ENTITY] & Mr. [ENTITY],DeputyAdvocateGenerals.
Fortherespondents: Ms.[ENTITY],Advocate.
:9: [ENTITY]ChiefJustice.
All these appeals are outcome of a common judgment, dated 01.01.2013, made by the Writ Court/learned SingleJudgeintwowritpetitionsbeingCWPNo.2979of2012, titledasSh.[ENTITY]versusStateofHimachalPradeshand others,andCWPNo.4977of2012,titledasHimachalPradesh Govt. Special Certificate awardees [ENTITY],wherebyboththewritpetitionscametobeallowed(for short"theimpugnedjudgment").
2. Theappellants inall theappeals except LPAsNo. 181and182of2014werenotpartiestothelisbeforetheWrit Court/learnedSingleJudgeandhavesoughtleavetofileappeals by the medium of miscellaneous applications, which were granted by this Court and delay was also condoned while granting the limitation petitions. Registry was directed to diarizetheappeals.Therespondentsappearedandtheappeals werelistedforhearing.
3. Duringthependencyofthesaidappeals,theState :10: alsofiledtwoappealsalongwithlimitationpetitions.Limitation .
petitions were diarized and notices were issued to the respondents. Respondents appeared and contested the limitationpetitions,whichweregrantedbythisCourtandthe Registrywasdirectedtodiarizetheappeals.
4. The writ petitionersrespondents herein questioned thesaidorderbeforetheApexCourtbythemediumofSpecial LeavetoAppeal(Civil)No.665666of2015,whichcametobe dismissedvideorder,dated08.01.2015andtheordersmadeby thisCourtgrantinglimitationpetitionswereupheld.
5. Thequestions,whicharisefordeterminationinall theseappeals,are:
(i)Whether the impugned judgment made by the Writ Court/learned Single Judge, on the grounds taken intherespectivewritpetitionsbythe writpetitioners,islegallycorrect?
(ii)Whethertheimpugnedjudgment is virtually encroaching upon the powers of the State Government tomakepolicydecision,which :11: necessitatedfilingoftwoappealsby .
theState,i.e.LPAsNo.181&182of 2014?
(iii)WhethertheWritCourt/learned Single Judge was within its powers to quash the effective date given in thepolicy,AnnexureP4?
r (iv)Whethertheimpugnedjudgment has adversely affected the rights of theappellantsinalltheLPAsexcept LPAsNo.181and182of2014?
6. Inthegivencircumstances,wedeemitpropertoclub anddeterminealltheseappealsbythiscommonjudgment.
7. Inboththewritpetitions,thewritpetitionershave soughtsimilarsetofreliefsonthegroundstakeninthememoof the respective writ petitions. Thus, we deem it proper to reproducethereliefssoughtbythewritpetitionerinCWPNo. [CASE NUMBER]:
"i. That the Annexure P4 dated 11.12.1998 is liable to be quash and set asidetotheextentcutofdatementioned intheletteranddirecttherespondentto :12: apply the instruction uniformly and regularizetheteacherappointedunderthe .
policy framed in the year1986after five yearsofservice.
ii.Thattherespondentsmaybedirectedto implement the direction given by the respondent No. 2 and to take immediate steps to grant benefit of special J.B.T. certificate after completion of 5 years services to the petitioner, who was appointed between 1986 to 1991 and to grantregularization fromthedateofthe petitioner become eligible for grant of special JBT certificate after five years of r service with all consequential benefits, increments,seniorityandpayscalesfrom timetotime.
iii.Thattodirecttherespondentstocollect thedataasperAnnexureP6withintime boundmanner.
iv. That entire record pertaining to this casemaykindlybesummonedforthekind perusalofthisHon'bleCourt.
v. Any other relief which this Hon'ble Courtdeemsandjustmayalsobepassed infavourofthepetitionerandagainstthe respondentsintheinterestofjustice."
8. Whilegoingthroughthewritpetitions,onecomesto aninescapableconclusionthatthewritpetitionershavesought quashmentofthepolicydecision,dated11.12.1998(AnnexureP 4inCWPNo.2979of2012)whichwasmadebytherespondents, wherebythequalifyingserviceforgrantofSpecialJuniorBasic :13: Training Certificates(for short "SpecialJBT Certificates")has .
beenprescribedasfiveyearswitheffectfrom01.08.1998. Itis apt to reproduce relevant portion of letter dated 11.12.1998 (AnnexureP4)herein:
"No.[CASE NUMBER] GovernmentofHimachalPradesh DepartmentofPrimaryEducation r From TheCommr.cumSecretary(Edu.)tothe GovernmentofHimachalPradesh.
To TheDirectorofPrimaryEducation, HimachalPradesh,Shimla171001.
DatedShimla171001,the11thDec.1998.
Subjet: AmendmentofEducationCode andregularisationofVolunteer Teachers.
Sir, JaiHind.
Iamdirectedtorefertoyourletter No. EDNH(II)PRYB(6)8/98VT Dated 29.7.1998 and to say that the matter relatingtoamendmenttoEducationCode and regularisation of Volunteer Teachers was under consideration of the Governmentand ithasnowbeendecided that the provision relating to issue of special certificate shall be rewritten as under: :14: "J.B.T.SpecialCertificatemaybegranted to teachers who have put in approved .
continuousserviceinPrimaryDepartment orarecognisedschoolfornotlessthanfive years on the day of submission of application. Theawardee shouldhaveat least passed the Middle Standard Examination and he/she should be a teacher of good moral character duly certifiedbytheHeadofOffice."
This provision shall be effective from 1.8.1998.
You are, therefore, requested to consider r awarding Special Certificates to the eligible Volunteer Teachers numbering 4159whowill beregularised, with effect from 1.8.1998. After regularisation they will be subjected to all the terms and conditions which are applicable tonewly recruited J.B.T. teachers, as on fresh appointments, like, undergoing medical examination, character verification, probation and application of reservation roster etc. etc. Further, their first appointment shall not be less than 25 kilometers from their permanent place of residence. They shall have to undergo refresher course/condensed course as per theinstructionsoftheGovernmentissued fromtimetotime.
(Emphasisadded)"
9. ThewritpetitionershavequestionedAnnexureP4 onlytotheextentoffixingtheeffectivedateas01.08.1998and have also sought that the five years' time frame prescribed inthesaidletterbetreatedascriterionforallthoseVolunteer :15: Teacherswhowereappointedbetween1986to1991.Infact,the .
writpetitionershaveprayedforchangeofthetimeframeoften yearsprescribed in thepolicy decision madeintheyear 1995 contained in letter, dated 27.11.1995, read with letter, dated 15.12.1995(AnnexureP2).Thewritpetitionershavealsosought writ of mandamus commanding the respondents to take all necessarystepstograntbenefitofSpecialJBTCertificateafter completionoffiveyears'servicetothewritpetitioners,whohave beenappointedbetween1986to1991asVolunteerTeachersand to grant regularization from the datethey becameeligible for grantofSpecialJBTCertificateaftercompletionoffiveyears' service.
10. The writ respondentsState resisted the writ petitionsonthegroundstakenintherespectiverepliesandhave specifically stated that the writ petitioners were appointed as Volunteer Teachers under the [ACT] They have also pleaded thattheGovernmentofHimachalPradeshhadtakenapolicy :16: decision vide letter, dated 27.11.1995 that the Volunteer .
Teacherswhohadcompletedtenyearsofcontinuousservicein GovernmentPrimarySchoolsbegivenspecialJBTCertificates and the Volunteer Teachers who had worked in the Literacy campaignfortwoyearsbegivenoneyear'srelaxationingrantof SpecialJBTCertificates.Meaningthereby,insteadoftenyears, theyhadtocompletenineyearsofcontinuousservice.Thewrit petitionersweregovernedbythesaidSchemeandalsogotrelief ofregularizationintermsofthesaidpolicyandhaveaccepted thetermsandconditionscontainedinthesaidpolicy.
11. Wedeemitpropertoreproducerelevantportionof letterdated15.12.1995(AnnexureP2inCWPNo.2979of2012), wherein reference of letter dated 27.11.1995 has been given, herein:
The Govt. of Himachal Pradesh vide their letter No. EDNCB(2)5/95 dated 27.11.1995 has decided that the Volunteer Teachers who have completed 10 years continuousserviceinGovt.PrimarySchools be given special Junior Basic Training certificates. The Volunteer teachers who have worked in the literacy campaign for two years be given one years relaxation ingrantofspecialJuniorBasicTraining :17: certificatesi.e.intheircasetenyearsperiod wouldbereducedto9(Nine)years.
It has also been decided that refresher inservice course of about three months duration would be organised for the Volunteer teachers holding special J.B.T. certificates "
12. The writ respondents, in their reply, have specificallyaverredthatthewritpetitionerinCWPNo.2979of 2012joinedhisdutiesasVolunteerTeacheron05.01.1987and wasregularizedasJBTon06.01.1996,intermsoftheguidelines issuedvideletterdated27.11.1995(supra)andhasbeengiven seniorityfromthedateofhisregularization.
13. Thereafter,anotherconsciousdecisionwastakenby theStateauthoritiesvideletter,dated11.12.1998(AnnexureP4 to [CASE NUMBER]), that the Volunteer Teachers, who havecompletedfiveyearsofcontinuousserviceinGovernment Primary Schools on the date of commencement of the said amendment,i.e.01.08.1998,aretoberegularized.Thisdecision is not applicable to the writ petitioners, whose services have beenregularizedaspertheearlierschemeandthatdecisionwas madeatthatpointoftime.
14. Itisapttoreproduceparas4and5ofthereplyfiled .
bythewritrespondentsinCWPNo.4977of2012herein:
"4. That it is submitted that after amendment in education code, policy amended and volunteer teachers so appointed after 1992 onwards have been regularized after putting 5 years' service as per direction contained in the letter dated11121998and21121998annexed bythepetitionerasannexureP3andP4 withthepresentcivilwritpetition.
5. That the claim of petitioner that annexure P3 dated 11121998 may be r quashedandsetasideasthesamebrings disparityamongsttwosetoffincumbents in as much as under policy dated 11121998,thecriteriawasreducedto5 yearswhichinanneuxreP2was10years.
Therefore, by way of this writ petition petitionersoughtparitytotheincumbents engaged between 1984 to 1991 with incumbents so engaged under second policy and also regularised upon completionof5yearsvolunteerservice.To thisreliefitisrespectfullysubmittedthat as is evident from kind perusal of AnnexureP2,10yearscontinuousservice to the volunteer teachers before regularisation as JBT was fixed by the Government as a mandatory condition takingintoconsiderationthelargenumber of incumbents working in the said category. However, if the Government subsequentlyduringtheyear1998decided toreduceitto5years,thesamedoesnot giveanycauseofactiontothepetitionerat thisbelatedstageafterorethan12to15 years that too without challenging the wiresofpolicy. Boththepolicydecisions havingbeentakenbytheGovernmentat :19: therelevanttimeaftertakingintoaccount various factors prevailing at that time .
whichincludesthenumberofincumbents likely to be benefited and subsequently when it was reduced to 5 years to eliminate the category of volunteer teacherssoastomakealltheincumbents regularwereeligible. Hence,takinglead from [ENTITY] verdict/policy framed by Hon'bleApexCourtduringtheyear1994 when first timer daily wager who were having 10 or more years of continuous serviceweredirectedtoberegularisedthe dailywagerswereevenhaving20ormore yearsdailywageservice.Subsequentlythe r Governmentreduceditto8yearsandnow 6years,suchincumbentssoengagedand regularised during the year 1994 cannot now claim that our juniors have been prescribed in lesser period of daily wage service. Hence,theyarenotentitledfor parity. Taking these fats and circumstancesintoconsiderationtheclaim of the petitioner for providing of 5 years voluntary service instead of 10 years voluntary service before regulrisation as JBTisnotlegallysustainable."
15. It is also apt to reproduce paras 2 & 3 of the preliminarysubmissionsandpara4ofthereplyonmeritfiledby therespondentsStateinCWPNo.[CASE NUMBER]:
"2. That the Govt. of H.P. has taken a policy decision vide letter of dated 27 November, 1995 that the Volunteer Teacherswhohavecompleted10yearsof continuousserviceinGovernmentPrimary Schools be given special Junior Basic Training Certificates. The Volunteer TeacherswhohaveworkedintheLiteracy :20: campaignfortwoyearsbegivenoneyear relaxationingrantofspecialJuniorBasic .
TrainingCertificatesi.e.intheircaseten yearsperiodwouldbereducedto9years.
3. The petitioner was appointed as Volunteer Teacher on 31121986 and joined his duties on 511987 and regularized as JBT on 06011996 after awarding special JBT certificate after completion of 9 years of regular service andoneyearbenefitwasgivenduetohis workinliteracycampaignformorethan2 years and has been given seniority from the date of his regularization. The r seniority to each Volunteer Teacher appointed under this scheme have been givenfromthedateofregularizationafter completionof10yearsofservice.
4.Thatinreplytothisparaitissubmitted thatJBTSpecialCertificatewasgranted to those teachers who have put in continuousservicenotlessthan5yearson thedayofsubmissionofapplicationasper annexure annexed as P4 with the civil writpetition.ThisGovt.decisiondoesnot apply to the petitioner case. The Govt.
decisionwaswastakentothoseVolunteer Teacherswhowereappointedintheyear 1992."
16. ThequestionariseswhethertheWritCourt/learned SingleJudgehasrightlyquashedletterdated30.03.2011,which is a document filed by the writ respondentsState with their replytoCWPNo.2979of2012asAnnexureR1,whichwasnot :21: thesubjectmatterofthewritpetition?
17. It is apt to reproduce para 18 of the impugned judgmentherein:
"18. Accordingly, the writ petitions are allowed.AnnexureR1,dated30.03.2011, [CASE NUMBER] setaside.Thecutoffdate,i.e.01.08.1998 isstruckdownafterapplyingtheprinciple of severability. The petitioners will be deemedtohavebeengrantedSpecialJBT certificatesimmediatelyaftercompletionof five years and would also be deemed to have been regularized after five years of service with all consequential benefits to bringthematparwiththoseteachers,who were appointed under 1991 Volunteer Teachers Scheme. The pending application(s),ifany,alsostandsdisposed of.Nocosts."
18. Intermsofletterdated,30.03.2011 (AnnexureR1 annexedwithCWPNo.2979of2012),therequestforgranting senioritytotheVolunteerTeachersappointedintheyear1986 fromthedateoftheirinitialappointmentwasrejectedonthe groundthattheVolunteerTeachersappointedintheyear1986 havebeenregularizedagainstvacantpostsaftergrantofSpecial JBTCertificatesoncompletionoftenyears'continuousservice intermsoftheguidelinesdated27.11.1995andtheVolunteer Teachersappointedrightfromtheyear1992havebeen :22: regularized after granting Special JBT Certificates with effect .
from 01.08.1998 on completion of minimum five years service and that only after grant of Special JBT Certificates, the VolunteerTeachersareconsideredtobeeligibleforseniorityand financial benefits. It has further been mentioned in the said letterthattheVolunteerTeachersappointedrightfromtheyear 1992 have also been granted seniority and financial benefits witheffectfromthedateoftheirregularizationaftergrantof SpecialJBTCertificatesandnotfromthedateoftheirinitial appointment.
19. Thewritpetitionershavenotsoughtquashmentof AnnexureR1andnopleadingshavebeenmadetothateffectin the writ petitions. We wonder how the Writ Court/learned SingleJudgehasquashedAnnexureR1,whichwasnotsought for.
20. ItisbeatenlawoflandthattheCourtcannottravel beyondthepleadingsandthereliefsought.
21. OurthisviewisfortifiedbythejudgmentoftheApex CourtinthecasetitledasStateofJ.&K&Anr.versusAjay :23: [ENTITY],reportedin2011AIRSCW2605.Itisapttoreproduce .
paras14,15,16,22and23ofthejudgmentherein:
"14.Aperusalofthewritpetitionswould prove and establish that the only prayer madeinthosewritpetitionswastogrant relaxationtothecriteriaandstandardof physical conditions prescribed for and requiredtobefulfilled.Inaforesaidwrit petitions,neitherthevalidityofRule176 with regard to physical conditions were challengednorsuchconditionsprescribed in the advertisement were challenged on thegroundofitsvaliditycontendinginter alia that there is no nexus of the said conditions with the object sought to be achieved. We find that the physical conditionsprescribedintheadvertisement are in consonance with [SECTION] of the PoliceRuleswhicharestatutoryRules.No where in the pleadings, it is stated that such conditions prescribed are illegal or invalid. Constitutional validity of the aforesaid Rule was never challenged in anyofthewritpetitions.
15. The High Court, however, without there being any pleading in that regard wentbeyondthepleadingsandheldthat such physical conditions laid down are bad and arbitrary as what has been prescribedhavenonexuswith theobject soughttobeachieved.
16.Theaforesaiddecisionrenderedbythe HighCourtiscontrarytoandinconsistent withthelawlaiddownbythisCourtin thecaseofV.K.Majotrav.UnionofIndia &Ors.,reportedin(2003)8SCC40:(AIR 2003SC3909:2003AIRSCW4504).In thesaiddecisionalsowhatwasurged :24: beforethisCourtwasneitherraisedinthe pleadings nor it was urged before the .
High Court by any of the parties to the writ petition. In the said case, the issue was as to whether a person not having judicialexperiencecouldbeappointedas Vice Chairman of the Central Administrative Tribunal. This Court found that the aforesaid issue was not raisedinthewritpetitionandsimilarly, vires of the section was also not challenged. This Court in the aforesaid context,heldasfollows: "8 Itisalsocorrectthatviresof [SECTION] of the Act were not challenged in the writ petition. The effect of the direction issued by the High Court that henceforth the appointment to the postofViceChairmanbemadeonly from amongst the sitting or retired High Court judge or an advocate qualifiedtobeappointedasajudge of the High Court would be that [SECTION] of the Actprovidingforrecruitmenttothe postofViceChairmanfromamongst theadministrativeserviceshavebeen put to naught/obliterated from the statutebook without striking them down as no appointment from amongstthecategoriesmentionedin clauses(b),(bb)and(c)couldnowbe made. So long as [SECTION] remain on the statute book such a direction could not be issuedbytheHighCourt "
Inparagraph9ofthesaiddecision,this Court has discussed the issues in the followingterms: :25: "9.Wearealsoinagreementwiththe submissionsmadebythecounselfor .
the appellants that the High Court exceeded its jurisdiction in issuing further directions to the Secretary, LawDepartment,UnionofIndia,the Secretary, Personnel and Appointment Department, Union of India, the Cabinet Secretary of the Union of India and to the Chief SecretaryoftheU.P.Governmentas also to the Chairman of CAT and other appropriate authorities that henceforth the appointment to the post of presiding officer of various rother Tribunals such as CEGAT, Board of Revenue, Income Tax Appellate Tribunal etc. should be from amongst the judicial members alone. Such a finding could not be recorded without appropriate pleadings and notifying the concernedandaffectedparties."
17to21
22.Inourconsideredopinion,theratioof the aforesaid decisions of this Court are squarely applicable to the facts of the present case. There was no challenge to theconstitutionalvalidityofRule176of the Police Rules so far as it relates to prescribingphysicalconditionsregarding theheightandthechest.Thestipulations in the advertisement regarding standard of physical condition was also not challengedintheWritPetition.TheHigh Courtwasnotjustifiedingoingintothe validity of the aforesaid criterion in absenceofanysuchchallenge.TheHigh Court also has not specifically declared theRuleprescribingminimumheight :26: standard and chest standard ultra vires and,therefore,solongasthatRuleexists .
in the statute book, nosuch direction as issuedbytheHighCourtcouldbeissued. Consequently,thedirectionsissuedbythe High Court in the present case are requiredtobesetaside.
23. We, therefore, hold that the High Court was not justified to decide the validity of the aforesaid Rule and the advertisement without there being any challengetothesame.Wealsoholdthatit wasnotappropriatefortheHighCourtto set aside the said conditions which are r mandatoryinnature."
22. [PRECEDENT], held that the Court cannot make out a case not pleadedandgrantreliefnotsoughtfor. Itisapttoreproduce para12ofthejudgmentherein:
"12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, containsthenecessaryavermentstomake out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basisthatsuchcasewasatissueandhad led evidence thereon. As the very requirementsindicate,thisshouldbeonly in exceptional cases where the court is fully satisfied that the pleadings andissuesgenerallycoverthecase :27: subsequently put forward and that the parties being conscious of the issue, had .
ledevidenceonsuchissue.Butwherethe courtisnotsatisfiedthatsuchcasewasat issue, the question of resorting to the exceptiontothegeneralruledoesnotarise.
The principles laid down in [ENTITY] and [ENTITY] (supra) referred to above and several other decisionsofthisCourtfollowingthesame cannot be construed as diluting the well settled principle that without pleadings andissues,evidencecannotbeconsidered to make out a new case which is not pleaded. Another aspect to be noticed, is r thatthecourtcanconsidersuchacasenot specificallypleaded,onlywhenoneofthe parties raises the same at the stage of arguments by contending that the pleadingsandissuesaresufficienttomake outaparticularcaseandthattheparties proceeded on that basis and had led evidenceonthatcase.Whereneitherparty puts forth such a contention, the court cannotobviouslymakeoutsuchacasenot pleaded,suomotu."
23. [PRECEDENT], reported in (2012) 8 SupremeCourtCases148, heldthattheCourtcannottravel beyondthepleadings.Itisapttoreproduceparas77ad85.6of thejudgmentherein:
"77. This Court while dealing with an issue in [PRECEDENT] :28: placingrelianceonaverylargenumberof itsearlierjudgmentsincludingTrojan& .
Co. v. Nagappa Chettiar, AIR 1953 SC 235; Om Prakash Gupta v. Ranbir B. Goyal,(2002)2SCC256:AIR2002SC 665;IshwarDuttv.Collector(LA),(2005) 7SCC190:AIR2005SC3165;andState of Maharashtra v. M/s. Hindustan ConstructionCo.Ltd.,(2010)4SCC518:
(2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299,heldthatreliefnotfoundedonthe pleadingscannotbegranted.Adecisionof acasecannotbebasedongroundsoutside thepleadingsoftheparties.Noevidenceis permissible to be taken on record in absence of the pleadings in that respect.
Nopartycanhepermittedtotravelbeyond its pleading and that all necessary and material facts should be pleaded by the partyinsupportofthecasesetupbyit.It wasfurtherheldthatwheretheevidence was not in the line of the pleadings, the said evidence cannot be looked into or reliedupon.
85.6. The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence hasbeenadducedorafindingoffacthas beenrecordedbytheCourt,itisjusttobe ignored.Thoughitmaybeadifferentcase where in spite of specific pleadings, a particularissueisnotframedandparties having full knowledge of the issue in controversy lead the evidence and the courtrecordsafindingonit."
24. Learnedcounselforthewritpetitionersrespondents .
herein frankly conceded that the writ petitioners have not prayedforthesaidreliefinthewritpetitionsandwasnotina positiontojustifyhowtheWritCourt/learnedSingleJudgehas grantedthesame.
25. Now, coming to the second limb of the impugned judgment,wherebycutoffdate,i.e.effectivedateofthepolicy, hasbeenstruckdown. Theimpugnedjudgment,onthefaceof it,isnotlegallycorrectforthefollowingreasons:
26. TheGovernmenthasmadetwopolicydecisions. In thepolicydecisionmadeintheyear1995intermsofletterdated 27.11.1995,tenyears'continuousserviceasVolunteerTeachers was prescribed for granting Special JBT Certificates and the servicesoftheVolunteerTeachers,whohadobtainedthesaid SpecialJBTCertificates,weretoberegularized.Thesamewas applicableandgoverningtheVolunteerTeachersappointedfrom 1985 till 1991. It was accepted by the parties, was not questioned and the services of so many Volunteer Teachers, includingthewritpetitioners,wereregularized.
27. Thereafter,theGovernmentmadeanotherconscious .
decision, vide letter, dated 11.12.1998, in terms of which the services of the Volunteer Teachers, who were appointed right from the year 1992 and had completed five years' continuous service, were to be regularized after granting Special JBT Certificates with effect from 01.08.1998. The said decision appears to have been taken while keeping in view the circumstancesprevailingattherelevantpointoftime.
28. Thewritpetitionershavenotpleadedthatthesaid decisionismalafideorisbasedonsomebiasorhasnorationale.
29. In fact, the prayer of the writ petitioners is to re writethepolicyof1995andfixthetimeframeoffiveyearsof continuous service for grant of Special JBT Certificates, as provided in terms of policy decision taken in the year 1998, insteadofthetimeframeoftenyears,asprovidedinthepolicy decisiontakenintheyear1995,whichisnotpermissible.
30. ItisabeatenlawoflandthatGovernment decision andpolicycannotbesubjectmatterofawritpetition,unlessits arbitrarinessisshowninthedecisionmakingprocess.
31. TheApexCourtinaseriesofjudgmentsheldasto .
howpolicydecisionsoftheGovernmentcanbequestionedand whethertheWritCourtshavepowerstoquashthesaidpolicy decisions,thattoo,onwhatcounts.
32. The Apex Court in a case titled as [PRECEDENT], has laid down the guidelines and held that Courts should not interfere in policy decisionoftheGovernment,unlessthereisarbitrarinessonthe faceofit.
33. [PRECEDENT]
34. The Apex Court in the case titled as [PRECEDENT] hasheldthatpolicydecision cannotbequashed onthegroundthatanotherdecisionwould havebeenmorefair,wise,scientificorlogicalandintheinterest ofsociety.Itisapttoreproducepara10ofthejudgmentherein:
:32: "10. The Government is entitled to make pragmatic adjustments and policy .
decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logic. The principle of reasonableness and nonarbitrariness in governmental action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstancesofagivencase.Referencein r [PRECEDENT]]."
35. Itappearsthatthewritrespondentshaveexamined allaspectsandmadethedecision.Thus,itcannotbesaidthat thedecisionmakingprocessisbad. TheCourtcannotsitin appealandexaminecorrectnessofpolicydecision.
36. [PRECEDENT] same principle. It is apt to reproduce para 19 of the judgmentherein:
"19. We are of the view that the High Courtwasnotjustifiedinsittinginappeal overthedecisiontakenbythestatutory :33: authority under [SECTION] of the [ACT] .
thepowerofjudicialreviewunder[SECTION] of the [ACT] is not directed against the decision but is confined to the decision making process.
Thejudicialreviewisnotanappealfrom adecision,butareviewofthemannerin whichthedecisionismadeandtheCourt sitsinjudgmentonlyonthecorrectnessof the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority r exceededitspower,committedanerrorof law, committed a breach of the rules of natural justice, reached an unreasonable decisionorabuseditspowers."
37. The Apex Court in a case titled as Centre for PublicInterestLitigationandOrs.versusUnionofIndia andOrs.withDr.[ENTITY].,reportedin2012AIRSCW3569,heldthatthe Court cannot substitute its opinion for the one formed by the expertsintheparticularfield. Itisapttoreproducerelevant portionofpara79ofthejudgmentherein:
"79.Inmajorityofjudgmentsreliedupon bylearnedAttorneyGeneralandlearned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspectionandtheCourtshouldnot :34: ordinarily interfere with the policy decisions of the Government in financial .
matters.Therecannotbeanyquarrelwith the proposition that the Court cannot substitute its opinion for the one formed bytheexpertsintheparticularfieldand duerespectshouldbegiventothewisdom ofthosewhoareentrustedwiththetaskof framingthepolicies.Wearealsoconscious of the fact that the Court should not interfere with the fiscal policies of the State "
38. The Apex Court in a case titled as [PRECEDENT], held that the Court cannot sit injudgment over wisdom ofpolicy of legislature or executive. It is apt to reproduce paras 22, 42 and 44 of the judgmentherein:
"22.Itissettledlawthatintheareasof economics and commerce, there is far greaterlatitudeavailabletotheexecutive than in other matters. The Court cannot sit in judgment over the wisdom of the policyofthelegislatureortheexecutive.
23to41
42. Weshouldnotbeunderstoodtohave meant that the judiciary should never interfere with administrative decisions. However,suchinterferenceshouldbeonly within narrow limits e.g. when thereisclearviolationofthestatuteora :35: constitutional provision, or there is arbitrarinessintheWednesburysense.It .
istheadministratorsandlegislatorswho are entitled to frame policies and take such administrative decisions as they thinknecessaryinthepublicinterest.The Courtshouldnotordinarilyinterferewith policydecisions,unlessclearlyillegal.
44. The power to lay policy by executive decisionsorbylegislationincludespower towithdrawthesameunlessitisbymala fide exercise of power, or the decision or r action taken is in abuse of power. The doctrineoflegitimateexpectationplaysno role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leavestheauthoritytodecideitsfullrange ofchoicewithintheexecutiveorlegislative power.Inmattersofeconomicpolicy,itis settled law that the court gives a large leewaytotheexecutiveandthelegislature. Granting licences for import or export is an executive or legislative policy. The Governmentwouldtakediversefactorsfor formulatingthepolicyintheoveralllarger interest of the economy of the country.
When the Government is satisfied that changeinthepolicywasnecessaryinthe public interest it would be entitled to revise the policy and lay down a new policy."
39. In another case titled as [ENTITY] & Ors.
versusChaudhariRanBeerSingh&Anr.,reportedin2008 AIRSCW2296,theApexCourtheldthattheCourtshouldnot :36: substituteitsownjudgmentforthejudgmentoftheexecutive.It .
isapttoreproducepara12ofthejudgmentherein:
"12. Cabinet's decision was taken nearly eight years back and appears to be operative.Thatbeingsothereisnoscope fordirectingreconsiderationaswasdone in [ENTITY]'s case, though learned counsel for the respondents prayed that such a direction should be given. As rightly contended by learned counsel for the State, in matters of policy decisions, the scope of interference is extremely limited.Thepolicydecisionmustbeleftto r the Government as it alone can decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Governmentsolongastheinfringementof fundamental right is not shown. Courts willhavenooccasiontointerfereandthe Court will not and should not substitute itsownjudgmentforthejudgmentofthe executiveinsuchmatters.Inassessingthe proprietyofadecisionofthe government theCourtcannotinterfereevenifasecond view is possible from that of the Government."
40. [PRECEDENT]reportedin2014(2)HimL.R. (DB)982,afterdiscussingthejudgmentsoftheApexCourtheld that it is for the writ petitioners to show that the decision makingprocesswasbadortherewassomearbitrariness.
41. The writ petitioners have not pleaded that the .
decisionmakingprocessisbadorthereisarbitrarinessonthe face of it and have not been able to carve out a case for its quashment.
42. ThisCourt in [CASE NUMBER], titled as [PRECEDENT], decided on 15.07.2014andabatchoftwowritpetitions,CWPNo.9480of 2014, titled as [PRECEDENT] beingtheleadcase,decidedon 09.01.2015,haslaiddownthesameprinciple.
43. Thewritpetitionershavenotquestionedthepolicy decision,dated27.11.1995totheeffectthatthetimeframe,i.e. prescribingtenyears'service,wasbad.Whattheyhavesought isthatthetimeframeoffiveyearsprescribedinAnnexureP4 be also prescribed in Annexure P2 read with letter dated 27.11.1995,iswithoutanylawfulcause. Howthetimeframe fixedinalaterpolicydecisioncanbemadeapplicabletoaearlier policydecision.
44. Applyingtheprincipletotheinstantcase,nocasefor :38: interference/quashment is made out by the writ petitioners.
Theyaregovernedbytheconsciousdecisionmadeintheyear 1995andtheVolunteerTeachersappointedrightfromtheyear 1992aregovernedbytheconsciousdecisionmadeintheyear 1998. Onlyonthiscount,theimpugnedjudgmentneedstobe setaside.
45. Further,thewritpetitionershadnotimpleadedthe affected parties as partyrespondents in the memo of writ petitions. Thus,thewritpetitions,onthefaceofit,werenot maintainable, were to be dismissed for nonjoinder and mis joinderofnecessaryparties. Unfortunately,thisissuehasnot been discussed by theWrit Court/learned SingleJudge in the impugnedjudgment.
46. The appellants have stated that the seniority list stands published and the impugned judgment has effect of dislodgingtheseniority,whichhasattainedfinalityintheyear 2002. Theappellantshavegiventhedetailsintheirrespective appeals as to how the impugned judgment has effect of dislodgingthesettledseniority,whichhasattainedfinality.The :39: appellants have also pleaded as to how they are adversely .
affectedbytheimpugnedjudgment.
47. Thewritpetitionershavefiledwritpetitionsinthe year2012andafterthelapseoffourteenyears,havequestioned thepolicydecision(AnnexureP4),ishighlybelatedandthewrit petitioners are caught by law of laches, estoppel, waiver and acquiescence.Theyhavenotevenexplaineddelayandlaches.
48. It is beaten law of land that the seniority fixed [ENTITY],whoisafencer,thattoo,after considerabledelay.
49. [PRECEDENT], laid down the same principle.Itisapttoreproducepara7ofthejudgmentherein:
"7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the DivisionBenchhavebothtobesetaside. Theundisputed factsappearingfromthe record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by [ENTITY] :40: whichwaslongaftertheyhadenteredthe departmentin197172.Duringthisentire .
periodofmorethanadecadetheywereall along treated as junior to the other aforesaid persons and the rights inter se hadcrystallised which oughtnottohave been reopened after the lapse of such a longperiod.Ateverystagetheotherswere promoted before [ENTITY] and [ENTITY] S.BajwaandB.D.Kapoorrightfromthe beginningasfoundbytheDivisionBench itself. It is well settled that in service matters the question of seniority should not be reopened in such situations after r the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case formakingsuchagrievance. Thisalone wassufficienttodeclineinterferenceunder Article226andtorejectthewritpetition."
50. Itwould alsobeprofitabletoreproducepara25of thejudgmentrenderedbytheApexCourtinacasetitledasH.S. Vankani&Ors.versusStateofGujarat&Ors.,reportedin 2010AIRSCW2116,herein:
"[ENTITY] important and vital role to play in one's service career. Future promotion of a Government servant depends either on strictseniorityoronthebasisofseniority cummerit or meritcumseniority etc. Seniority once settled is decisive in the upward march in one's chosen work or callingandgivescertaintyandassurance andbooststhemoraletodoqualitywork.
:41: It instills confidence, spreads harmony and commands respect among colleagues .
whichisaparamountfactorforgoodand sound administration. If the settled seniorityattheinstanceofone'sjuniorin service is unsettled, it may generate bitterness,resentment,hostilityamongthe Governmentservantsandtheenthusiasm todoqualityworkmightbelost.Sucha situation may drive the parties to approachtheadministrationforresolution of that acrimonious and poignant situation,whichmayconsumelotoftime andenergy.Thedecisioneitherwaymay drivethepartiestolitigativewildernessto the advantage of legal professionals both private and Government, driving the parties toacute penury.Itiswell known thatsalarytheyearn,maynotmatchthe litigation expenses and professional fees andmayattimesdrivethepartiestoother sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwiseuntenablestand.Furtheritalso consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest. Courts are repeating the ratiothattheseniorityoncesettled,shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmentalaction.Legalprincipleshave beenreiteratedbythisCourtinUnionof India and Another. v. S.K. Goel and Others(2007)14SCC641:(AIR2007SC 1199:2007AIRSCW1235),T.R.Kapoor v. State of Haryana, (1989) 4 SCC 71 :
(AIR1989SC2082),Bimlesh [PRECEDENT] .
by the appellants in [ENTITY]'s case ([PRECEDENT]) (supra), [ENTITY] andOtherscase,(AIR1976SC1093),G. Deendayalan, [ENTITY] are not applicabletothefactsofthecase."
51. TheApexCourtinthecasetitledas VijayKumar KaulandOrs.versusUnionofIndiaandOrs., reportedin r to 2012AIRSCW3277, heldthatbelatedclaimforseniorityso madecannotbeallowed,moreso,whentheemployees/affected parties/appellantswerenotimpleaded asparties. It isapt to reproduceparas21and22ofthejudgmentherein:
"21.Fromtheaforesaidpronouncementof law, it is manifest that a litigant who invokes the jurisdiction of a court for claimingseniority,itisobligatoryonhis parttocometothecourtattheearliestor atleastwithinareasonablespanoftime. Thebelatedapproachisimpermissibleas in the meantime interest of third parties getsripenedandfurtherinterferenceafter enormousdelayislikelytousherinastate ofanarchy.
22.Theactsdoneduringtheinterregnum aretobekeptinmindandshouldnotbe lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertainingthepetitionordecliningiton the ground of delay and laches. It is a matter of great significance that at one pointoftimeequitythatexistedinfavour :43: ofonemeltsintototalinsignificanceand paves the path of extinction with the .
passageoftime."
52. TheApexCourtinthecasetitledasStateofUttar PradeshandothersversusArvindKumarSrivastavaand others,reportedin2014AIRSCW6519,heldthatreliefcannot beextendedtothepersonswhohaveapproachedtheCourtafter longdelay,thattoo,whoarefencesitters.Itisapttoreproduce para24ofthejudgmentherein:
"24. Viewed from this angle, in the presentcase,wefindthattheselection process took place in the year 1986.
Appointmentorderswereissuedinthe year1987,butwerealsocancelledvide orders dated June 22, 1987. The respondentsbeforeusdidnotchallenge 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 years had passed. The earlier judgmenthadgrantedtherelieftothe partiesbeforetheCourt. Itwouldalso be pertinent to highlight that these respondentshavenotjoinedtheservice nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellationorders.Therefore,notonly :44: therewasunexplaineddelayandlaches infilingtheclaimpetitionafterperiod .
of9years,itwouldbetotallyunjustto directtheappointmenttogivethemthe appointment as of today, i.e. after a periodof27yearswhen mostofthese respondents would bealmost50 years ofageorabove."
53. The Apex Court in the case titled as [ENTITY]., [ENTITY]& Ors., reported in 2006 [CASE NUMBER], held that dislodging seniorityafterlonggapcreateschaoticsituation,isagainstthe principleofservicejurisprudence.Itisapttoreproduceparas18 and20ofthejudgmentherein:
"18. Having carefully considered the submissions made on behalf of the respective parties, we are unable to agree with the submissions advanced by Mr. [ENTITY] since in our view, after havingheldtheimpugnedGovernment OrdertobeviolativeofArts.14and16 oftheConstitutionofIndia,itwasthe intentionofthisCourttomaintainthe statusquoasitexistedwithregardto the appointments already made where certain candidates had already been given the benefit of weightage. We are inclined to agree with Mr. [ENTITY] that the Court intended to protect not only the appointment ofsuchcandidatesbutalsoalltheir :45: serviceconditions,whichincludedtheir right to seniority as had accrued to .
them at the time of their initial appointment. In our view, the said intentionofthisCourtwasquiteclear from the language used. If this Court hadintendedthattheweightagegiven totheconcernedcandidateswasnotto count towards their position in the merit list, it would have said so explicitly. On the other hand, while mentioning the fact of their appointment on the strength of such weightage this Court went on to say that such candidates would not be r adversely affected by the judgment. In other words, the decision rendered in thejudgmentwouldnotadverselyaffect theirexistingserviceconditions.
20. Apart from the above, the other submission of Mr. [ENTITY] regarding the difficulty of unsettling thesettledpositionafteralltheseyears cannotalsobelightlybrushedaside."
54. Applying the test to the instant case, the writ petitionsweretobedismissedalsoonthecountthatthewrit petitionershavecometotheCourtafteralongdelay,whichhas notbeenexplainedbythemandwhichhaseffectofdislodging thestatusandpositionoftheappellantsherein,whowerenot partiesbeforetheWritCourt/learnedSingleJudge.
55. Some of the appellants came to be appointed by .
direct recruitment as teachers after passing the competitive examination.Thewritpetitionershavenocontestwiththem and cannot claim for the benefit which affects the appellants adversely.
56. The decision contained in letter, dated 27.11.1995, readwithletter,dated 15.12.1995 (Annexure P2inCWP No. 2979of2012)wasmadeapplicabletothoseVolunteerTeachers who were appointed under the 1985 Scheme up to the year 1991andthewritpetitionerinCWPNo.2979of2012stands regularizedasJBTTeacheron06.01.1996,aspleadedinpara3 of the preliminary submissions of the reply filed by the writ respondentsState in [CASE NUMBER]. The decision/ schememadeintermsofletterdated11.12.1998(AnnexureP4 in [CASE NUMBER]) was made applicable to those Volunteer Teachers, who were appointed right from the year 1992. Thewritpetitionersalsoobtainedreliefintermsofthe earlier policy and cannot claim relief in terms of the second policy.Thus,itcanbesafelyheldthattheyhavebeentreatedas :47: twodifferentclasses.
57. Therepliesandtheappealsalsocontainthedetails howtheimpugnedjudgmentisencroachinguponthepowersof theState,whichhaspowerstomakeconsciouspolicydecisions.
TheCourtshavenopowertointerferewiththepolicydecisions madebytheStateGovernment,asdiscussedhereinabove.
58. Viewed thus, all the four questions framed hereinabovearerepliedaccordingly.
59. Having said so, all the appeals are allowed, theimpugnedjudgmentissetasideandthewritpetitionsare dismissed.
60. Pending applications, if any, are also disposed of accordingly.
([ENTITY] ChiefJustice ([ENTITY]) Judge July15,2015 (rajni)