IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2076 of 2010. Date of decision: May 13, 2010 ________________________________________________________ Ravinder Kumar ….. Petitioner Versus State of H.P. & ors. ….. Respondents Coram: The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr.Justice Deepak Gupta, Judge Whether approved for reporting?1 Yes For the petitioner: Mr.P.P.Chauhan, Advocate. For the respondents: Mr.R.K.Sharma, Sr.Addl.Advocate General for the respondents. _____________________________________________________ Justice Kurian Joseph, C.J.(Oral) CMP No.3124/2010 Allowed. The application is disposed of. CWP No.2076 of 2010 The issue raised in this writ petition pertains to the claim made by the petitioners for appointment on regular basis as Trained Graduate Teacher (Medical). The selection process started in the year 2002 when Subordinate Service Selection Board invited applications 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 on 5.7.2002 for appointment as regular teachers. Pursuant to the said applications, the petitioner was called for written test. Having come out successful in the written test, he was called for interview in the month of September, 2002. On the basis of the merit in the written test and in the interview, a select list was prepared and the names were dully recommended to the Government for appointment as regular TGT (Medical/Non medical). That recommendation was made by the Subordinate Service Selection Board on 10.12.2002. 2. Along with the selection to the posts of TGT (Medical/non Medical), there were simultaneous recruitment process for appointment to other posts like TGT (Arts, Crafts) and Shastri etc. It is not in dispute that in the case of all such teachers, the candidates selected and recommended by the Subordinate Service Selection Board were appointed on regular basis. 3. According to the petitioner, to his great misfortunes, a vigilance enquiry was initiated against the Subordinate Service Selection Board and hence no action was taken by the Government on the recommendation made by 3 the Board. We are informed that subsequently the enquiry was concluded and there was no incriminating material as far as the selection is concerned. 4. Be that as it may. For one reason or the other, the Government had not taken any action on the recommendation thus made by the Board for appointment of the petitioner as regular teacher. It appears that some of the candidates had approached the erstwhile Tribunal for compelling the Government to make appointments against the available vacancies. It was their case that having undergone a selection process and having been duly recommended, they had a right to have legitimate expectation for regular appointment and that expectation cannot prolong indefinitely. In the meanwhile, there appears to be change of mind of the Government and the petitioner was appointed but only on contract basis. Such appointment on contract basis was made during the years 2008-2009. It is pertinent to note in this context that the Recruitment and Promotion Rules at the time of such engagement on contract basis did not contemplate any appointment on contract basis. 4 The required amendment for appointment on contract basis in the R&P Rules was made only on 22.10.2009. The petitioner,, it is not disputed, had been appointed prior to the said amendment permitting the Government to make the appointments on contract basis. 5. Learned Senior Addl. Advocate General contends that the petitioner having been offered appointment on contract basis and the petitioner having accepted the appointment on contract basis he cannot lateron turn around and contend that he is otherwise entitled to regular appointment. It is also submitted that unless there are vitiating factors like fraud, misrepresentation etc. a contract duly entered between the parties cannot be set at naught or varied. 6. Learned counsel for the petitioner on the other hand contends that the petitioner having been waiting for more than seven years legitimately expecting appointment on the basis of his place in the duly prepared select list and the same having been recommended to the Government for appointment and his compeers in other disciplines having been appointed as teachers, the 5 teacher thought it fit to accept the offer at the first instance and then take up the legitimate grievance thereafter. It is also submitted that the petitioner has been subjected to the hostile discrimination in the sense that all those who competed along with the petitioner in various other disciplines in the very same selection process have been appointed on regular basis. Yet another contention is that the R&P Rules at the relevant time did not permit the appointment of teachers on contract basis and Rules were amended in that regard only on 22.10.2009 before which all these appointments/offers for appointments had already been made (in some of the cases the candidates have not accepted the offer of appointment on contract basis and in those cases, this Court had already issued interim direction not to fill up such vacancies). 7. Learned counsel for the petitioners has invited reference to the decisions reported in K.Manjusree vs. State of Andhra Pradesh and another, (2008) 3 SCC 512 and S.S. Balu and another vs. State of Kerala and others, (2009) 2 SCC 479 for canvassing the proposition that (i) the vacancies that existed prior to the amendment of the 6 Rules should be filled up on the basis of the unamended Rules and (ii) there cannot be any discrimination among the teachers who participated in the same selection process, as regular and contract teachers. In Maharashtra State Road Transport Corpn. and others Vs. Rajendera Bhimrao Mandve and Others, (2001) 10 SCC 51, the Supreme Court has held that …….. the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. In K.Manjusree’s case (supra), the Apex Court has made it clear that changing the criteria after completion of the selection process is illegal. In S.S.Balu’s case (supra) it is held by the Apex Court that it is open to the State to choose not to fill up all the posts, the State cannot make it a discretionary stand in the matter of appointment of candidates from a select list. 8. Having regard to the facts and circumstances and some of the legal issues emerging from the factual matrix as above, we are of the view that the matter should be considered by the Government adverting to the various 7 contentions taken by the petitioner. Therefore, we dispose of this writ petition with the following directions: 9. There will be a direction to the first respondent to consider afresh the issue of appointment of the petitioner in the light of the contentions, as referred to above and pass orders in the matter in accordance with law and justice within a period of two months from the date of production of a copy of this judgment. We make it clear that it will be open to the petitioner to make appropriate representation(s) in case he intends to make supplementary submissions other than what we referred to above. We also make it clear that it will be open to the petitioner if he has not yet joined duty, to join duty based on the offer of appointment on contract basis, subject to the outcome of the decision thus taken by the Government and needless to say, without prejudice to his contentions. 8 The writ petition is disposed of, so also the pending applications, if any. Dasti copy. (Justice Kurian Joseph), Chief Justice May 13, 2010 (Justice Deepak Gupta), (m) Judge