IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1811 of 2008 alongwith CWP No. 1054, 5554, 5555, 5556, 5557, 5558, 5559, 5597, 5613, 5614, 5616, 5735, 5737, 5738, 5739, 5740, 5763, 5766, 5767, 6190, 6563, 6833, 6893, 6908, 6909, 6910, 7137, 7376, 7440, 7813 and 8336 of 2010, 601 of 2011 and 982 of 2011 Reserved on: 31.10.2011 Date of Decision: 14.11.2011 1. CWP No. 1811 of 2008 Dev Raj vs. State of H.P. and others 2. CWP No. 1054 of 2010 Anil Kumar Vs. State of H.P and another 3. CWP No. 5554 of 2010 Deena Nath vs. State of H.P. and another 4. CWP No. 5555 of 2010 Ranjit Singh vs. State of H.P. and another 5. CWP No. 5556 of 2010 Kamal Kumar vs. State of H.P. and another 6. CWP No. 5557 of 2010 Anjana Kumari vs. State of H.P. and another 7. CWP No. 5558 of 2010 Karam Chand vs. State of H.P. and another 8. CWP No. 5559 of 2010 Vikas Kumar vs. State of H.P. and another 9. CWP No. 5597 of 2010 Rajiv Kaundal vs. State of H.P. and another 10. CWP No. 5613 of 2010 Jagjeet Singh vs. State of H.P. and another 11. CWP No. 5614 of 2010 Ashwani Kumar vs. State of H.P. and another 12. CWP No. 5616 of 2010 Piar Singh vs. State of H.P. and another 13. CWP No. 5735 of 2010 Subhash Chand and others vs. State of H.P. and another 14. CWP No. 5737 of 2010 Akhlesh Rana and others vs. State of H.P. and another 15. CWP No. 5738 of 2010 Rakesh Sharma and others vs. State of H.P. and another 2 16. CWP No. 5739 of 2010 Om Parkash Verma and others vs. State of H.P. and another 17. CWP No. 5740 of 2010 Ravinder Singh and others vs. State of H.P. and another 18. CWP No. 5763 of 2010 Joginder Kumar Sopta and others vs. State of H.P. and others 19. CWP No. 5766 of 2010 Rajiv Kumar vs. State of H.P. and another 20. CWP No. 5767 of 2010 Ajay Kumar vs. State of H.P. and another 21. CWP No. 6190 of 2010 Jyoti Dhiman and others vs. State of H.P. and others. 22. CWP No.6563 of 2010 Manju Kumari vs. State of H.P. and another 23. CWP No. 6833 of 2010 Mahender Pal Sharma & others vs. State of H.P. and another 24. CWP No. 6893 of 2010 Manju Bala vs. State of H.P. and another 25. CWP No. 6908 of 2010 Pawan Kumar Sharma vs. State of H.P. and another 26. CWP No. 6909 of 2010 Alok Singh vs. State of H.P. and another 27. CWP No. 6910 of 2010 Bandana Bhardwaj vs. State of H.P. and another 28. CWP No. 7137 of 2010 Gulshan Kumar and others vs. State of H.P. and others. 29. CWP No. 7376 of 2010 Mahender Pall and others vs. State of H.P. and another 30. CWP No. 7440 of 2010 Sunita Devi and others vs. State of H.P. and others 31. CWP No. 7813 of 2010 Rajesh Kumar and others vs. State of H.P. and another 32. CWP No. 8336 of 2010 Arti Gupta vs. State of H.P. and others. 33. CWP No. 601 of 2011 Ranjit Singh vs. State of H.P. and another 34. CWP No. 982 of 2011 Kamlesh Kumar vs. State of H.P. and another 3 Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. (In CWP No. 1811 of 2008) For the petitioner: Mr. M.A.Khan, Advocate. . For the respondents-State: Mr. Vivek Thakur, Addl. A.G. (In CWP No.1054, 5554, 5555, 5556, 5557, 5558, 5559, 5597, 5613, 5614, 5616, 5766, 5767, 6893, 6908, 6909, 6910 of 2010) For the petitioner(s): Mr. B.C.Negi, Advocate. For the respondents: Mr. Vivek Thakur, Addl. A.G. (In CWP No.5735, 5737, 5738, 5739, 5740, 6833 of 2010, 601 of 2011 & 982 of 2011) For the petitioner(s): Mrs. Ranjana Parmar, Advocate For the respondents-State: Mr. Vivek Thakur, Addl. A.G. (In CWP No. 5763, 6190, 7137, 7440, 8336 of 2010) For the petitioner(s) : Mr. Onkar Jairath, Advocate. For the respondents-State: Mr. Vivek Thakur, Addl. A.G. For the H.P.S.S.B: Mr. Inder Sharma, Advocate. (In CWP No. 7376 and 7813 of 2010) For the petitioners: Mr. Rajiv Rai, Advocate. For the respondents-State: Mr. Vivek Thakur, Addl. A.G. (In CWP No. 6563 of 2010) For the petitioners: Mr. Onkar Jairath vice counsel. For the respondents-State: Mr. Vivek Thakur, Addl. A.G. Deepak Gupta, J: 1. All the aforesaid writ petitions are being disposed of by a common judgement since similar questions of law and facts are involved in these cases. 4 2. The following question arises for decision in all these cases: “Whether the Recruitment and Promotion Rules relating to the posts in question existing on the date when the advertisement was issued are applicable while filling in the posts or the employer has the right to change the Rules after advertisement has been issued and selection can be made on the basis of the amended/new rules? 3. There are three sets of cases before the Court. They relate to the appointment of Steno-typists in the Irrigation and Public Health Department, appointment of TGT (Non Medical) and appointment of TGT (Medical) but the basic issue is almost identical. CWP No. 1811 of 2008: 4. On 10.10.2002 the H.P.Subordinate Services Selection Board, Hamirpur (hereinafter referred to as the Board) issued an advertisement inviting applications for various posts including those of Steno-typists. The petitioner applied for the said post. Though the process started in the year 2002, screening test was held in the year 2007 and thereafter skill test was conducted on 28.08.2007 and the petitioner was found eligible for appointment. He was declared successful on 4.6.2008. Thereafter a letter was issued to him on 1.9.2008 offering him appointment as Steno typist in the Irrigation and Public Health Department. The appointment 5 was, however, offered on contract basis and not on regular basis. The petitioner filed the present writ petition and on 29.9.2008 this Court passed an interim order permitting the petitioner to join service pursuant to the aforesaid letter without prejudice to his rights to claim regularization in the present petition. 5. The claim of the petitioner is that the Recruitment and Promotion Rules which were issued on 27.1.1997 did not contain any provision permitting the State Government to make appointment on contractual basis. It was only on 3rd July, 2008 that a fresh set of Recruitment and Promotion Rules was issued, which permitted recruitment to be made on contract basis. It is contended by Shri M.A.Khan, learned counsel for the petitioner, that the Rules of 2008 could not be made applicable in the case of the petitioner wherein the post was advertised in the year 2002, screening and skill test held in the year 2007 and the petitioner selected on 9.6.2008. It is also contended that the other persons selected in the same process as Steno-typist(s) but posted in other departments were given regular appointment whereas the petitioner who happened to be posted in the Irrigation and Public Health Department was offered the appointment on contract basis only. 6. The stand of the State is that the offer is in accordance with the rules as framed on 3rd July, 2008 and the appointment 6 of the petitioner was made thereafter on 1.9.2008 and the petitioner has no right to claim regular appointment. CWP Nos. 5763/10, 6190/10, 7137/10, 7440/10, 7813/10 and 8336 of 2010. 7. The petitioners in the aforesaid petitions are all Trained Graduate Teachers (Medical). On 5.7.2002 the Board issued an advertisement inviting applications for different posts in various departments and 273 posts of TGT (Medical) in the pay scale of Rs.5480-8925 were advertised. The petitioners applied for the said post and they alongwith others appeared in the written test conducted on 15.09.2002. The result of the written test was declared on 4.10.2002 and the petitioners were successful in the screening/written test. The petitioners were thereafter called for interviews on various dates in the months of October and November, 2002 and on 10.12.2002 the Board recommended the names of 267 candidates including the petitioners for appointment to the post of TGT(Medical). 8. In the meantime, the H.P. State Assembly was dissolved and elections were announced and as such model code of conduct came into operation. A fresh Government came into power on February, 2003. The new Government was of the opinion that the selection made earlier was not fair and therefore no offer of appointment was made to the petitioners. Thereafter, the petitioners alongwith other candidates filed original applications before the erstwhile 7 H.P.State Administrative Tribunal praying that the appointments be made in accordance with the merit drawn up by the Board as per the procedure prescribed under the Rules. The matter remained pending in the erstwhile H.P.State Administrative Tribunal for many years. 9. In the meantime, the State Government referred the matter to the Enforcement Department for inquiry/investigation. A detailed inquiry was conducted and nothing illegal was found in the selection of candidates applying to the post of TGT (Medical). The petitioners were, however, denied appointment. In December, 2007 elections were again held and power changed hands again. Thereafter, the matter was re-examined again and it appears that the Government took a decision to offer appointments to those people who had been selected pursuant to the advertisement issued in the year 2002. Letter Annexure P-3 dated 16th June, 2008 shows that the Government decided to offer appointment to the candidates if they withdrew the Court cases filed by them. The petitioners accordingly withdrew the Court cases but they were appointed only on contract basis and not as regular TGT(Medical). Their grievance is that they should have been given regular appointment. 10. The teachers had earlier also filed a petition in representative capacity wherein it was ordered that the petitioners should file writ petitions on individual basis. The 8 petitioners then filed individual writ petitions. In these cases the petitioners were selected in December 2002 but the decision to offer them appointment was taken by the Government on 16th June, 2008. The Rules as they stood earlier did not envisage contract employment as a means of employment. Fresh Rules were promulgated on 12.10.2009 and for the first time these Rules also recognized contract employment as a means of recruitment. CWP Nos. 1054/10, 5554/10, 5555/10, 5556/10, 5557/10, 5558/10, 5559/10, 5597/10, 5613/10, 5614/10, 5616/10, 5735/10, 5737/10, 5738/10, 5739/10, 5740/10, 5766/10, 5767/10, 6563/10, 6833/10, 6893/10, 6908/10, 6909/10, 6910/10, 601/11 and 982/11 11. The petitioners in all these writ petitions are also trained graduate teachers on the non-medical side. The facts in their case are virtually identical to those of Trained Graduate Teachers (Medical). The posts were invited vide the same advertisement issued on 5.7.2002. The written test was conducted in the month of October, 2002 and the result was declared on 4.10.2002. Interviews were held from October, 2002 to 5th December, 2002 and result wherein the petitioners were declared successful was declared on 11.12.2002. The petitioners herein had also filed original applications before the erstwhile Tribunal which were pending but in their cases the decision to offer appointment was not taken earlier. In their cases there was some doubt with regard to the fairness of the selection. Though the results were declared in the year 2002 9 the Government ordered a fresh inquiry in the year 2009 and this inquiry committee found that as far as the present petitioners are concerned, except for one petitioner, the appointment of the others was not tainted and recommended the appointment of all the petitioners except petitioner Shri Kamlesh Kumar. As far as this petitioner (Kamlesh Kumar) is concerned he filed CWP No. 3796 of 2009, which was allowed by this Court and it was held that the petitioner Kamlesh Kumar was also entitled to be offered appointment and therefore, he is also to be treated as a non-tainted candidate. 12. Counsel appearing for the petitioners in all these cases have urged that in view of the fact that the selection was made much earlier the Government had to apply the Rules as they existed on the date of issuance of advertisement and they had to be given regular appointment and could not be given contractual employment. On the other hand Shri Vivek Thakur, learned Additional Advocate General for the State submits that the advertisement and the rules only lay down the eligibility criteria and it was not stated in the advertisement that regular appointment would be offered. According to him it is within the power of the employer to offer employment on regular or contractual basis. He further submits that the select list does not confer any right of appointment upon the selected candidates and therefore they cannot seek regular appointment. It is argued that the Government has taken a policy decision to 10 offer appointments to these persons only on contract basis and this being a policy matter the same cannot be adjudicated upon by this Court. A number of judgements have been cited by both the sides. 13. The Apex Court in Indian Railway Service of Mechanical Engineers Association and others vs. Indian Railway Traffic Service Association and another 1993 Supp (4) SCC 473 held that the employer could amend the rules by specifying the percentage for the feeder categories and this was a matter of policy and no Court or Tribunal can compel the Government to change the policy. In my view this judgement is not at all applicable since the question as to whether such amendment could be made after issuance of the advertisement and after the selection process was virtually complete was not considered by the Apex Court. 14. In Union of India and others vs. K.V.Vijeesh (1996) 3 SCC 139 the selected persons were not offered appointment. According to the Government it had to absorb certain surplus staff and therefore, it took a policy decision to reduce the number of vacancies with a view to adjust the staff which would become surplus. The Apex Court upheld the contention of the Government. This judgement is also not applicable to the facts of the present case because admittedly there is no reduction in the number of posts available. 11 15. Shri Vivek Thakur, learned Addl. A.G has placed reliance on the judgement of the Apex Court in Dr. K.Ramulu and another vs. Dr. S.Suryaprakash Rao and others (1997) 3 SCC 59. In that case panel for promotion was not prepared. The stand of the Government was that it had taken a conscious decision in the year 1988 to amend the Rules of 1977 and therefore, it had decided not to fill up any such vacancy till such amendment was made. A Commission was set up by the Government to examine the anomalies in the Rules of 1977 and thereafter recruitment was made pursuant to the Rules which were promulgated in the year 1996. The petitioners in that case submitted that they should have been appointed as per the Rules of 1977. The Apex Court held as follows:- “13. It is seen that since the Government have taken a conscious, decision not to make any appointment till the amendment of the Rules, Rule 3 of the General Rules is not of any help to the respondent. The ratio in the case of, Ramesh Kumar Choudha v. State of M.P. is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules. xxx… xxxx… xxxx. 15. Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view 12 of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. We hold that the Tribunal was not right and correct in directing the Government to prepare and operate the panel for promotion to the post of Assistant Director of Animal Husbandry Department in accordance with the repealed Rules and to operate the same.” 16. Reliance is also placed on the judgement of the Apex Court in State of A.P. and others vs. D.Dastagiri and others (2003) 5 SCC 373, wherein the Apex Court held as follows:- “4.. ……………………… Be that as it may, even if the selection process was complete and assuming that only select list remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the respondents that there was any mala fides on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents as 13 arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government pleader on behalf of the appellant-State cannot improve the case of the respondents. Similarly, such a submission cannot confer right on the respondents, which they otherwise did not have.” 17. In my opinion this judgement is also not applicable since in that case the policy decision taken by the Government was to enforce the policy of prohibition and therefore, there was no need to appoint any Constables in the Excise Department. In this case there is no policy decision not to make the recruitment. The posts were lying vacant and in fact it is the petitioners who in fact were offered appointment, on the basis of the earlier selection. 18. The Apex Court in P.Mohanan Pillai vs. State of Kerala and others (2007) 9 SCC 497 held as follows:- “9. Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1: 3 to 1: 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery. 10. It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant. 14 11. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as were prevailing on the date of vacancy should ordinarily be followed.” 19. The Apex Court in Arjun Singh Rathore and others vs. B.N.Chaturvedi and others (2007) 11 SCC 605 held that the vacancies occurring prior to the promulgation of the new Rules have to be filled in according to the old rules even though the interviews were held after the promulgation and notification of the new Rules. 20. In Mohd. Raisul Islam and others vs. Gokul Mohan Hazarika and others (2010) 7 SCC 560 the Apex Court dealing with similar questions held as follows:- “37. There can be no dispute that as a matter of policy the Government may take a conscious decision not to fill up vacancies for justifiable reasons, but at the same time, having started a process of selection under the unamended Rules, it cannot take the stand that it still was entitled not to make appointments of persons from amongst the candidates selected in terms of the process initiated under the old Rules. In fact, in the instant case, the recommendation made by the APSC was submitted to the Government on 22nd June, 1986, before the amended Rules came into operation on 21st July, 1986 whereby the quota system was discarded. In such a situation, in our view, the decision in K. Ramulu's case cannot be applied to the facts of this case. 38. We are unable to agree with Mr. Hansaria that the High Court had committed an error in relying on the unamended Rules since the law has been well settled that 15 the process of selection commenced on the basis of the Rules then in existence would continue under the said Rules, even though the Rules may have been amended in the meantime. Accordingly, the seniority of members of the service would, no doubt, be governed under Rule 19, but the selection process has to be completed under Rule 4 in order to attract the provisions of Rule 19. The vacancies for which the advertisement had been published in 1984 were directed to be filled up by the High Court on the basis of the unamended Rule 4 which provided for quota between promotees and direct recruits and, accordingly, placed 45 of the direct recruits immediately below the first 45 promotees out of the list of 129 promotees in keeping with the said quota system for the year 1986. 39. We agree with the view taken by the High Court which has been reiterated by Mr. Goswami in keeping with the well-established principle that once a process of selection is started on the basis of the existing Rules of recruitment, the said Rules will continue to govern the selection process, notwithstanding any amendment which may have been effected to the said Rules in the meantime.” 21. In State of Bihar and others vs. Mithilesh Kumar (2010) 13 SCC 467 the Apex Court held as follows:- “19. Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The Respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms 16 of recruitment were altered to the prejudice of the Respondent. The question is whether those altered norms will apply to the Respondent. 20. The decisions which have been cited on behalf of the Respondent have clearly explained the law with regard to the applicability of the Rules which are amended and/or altered during the selection process. They all say in one voice that the norms or Rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect.” 22. In fact the matter actually stands squarely covered by a judgement of a learned Single Judge of this Court