IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 10665 of 2008. Reserved on: 20.10.2011. Decided on : 23.12.2011. ____________________________________________________________ 1. Bharat Raj Rawat son of Shri Tej Singh, presently Assistant Director, State Forensic Science Laboratory, Himachal Pradesh, Junga, Shimla. 2. Arun Sharma son of Shri D.R. Sharma, presently Assistant Director, State Forensic Laboratory, Himachal Pradesh, Junga, Shimla. 3. Dr. (Miss) Minakshi Mahajan d/o Shri Madan Lal Mahajan, presently working as the Assistant Director, State Forensic Science Laboratory, HP, Junga, Distt. Shimla, HP. … Petitioners. Versus 1. State of Himachal Pradesh, through its Secretary (Home) to the Govt. of H.P., Shimla-2. 2. The Director General of Police, Himachal Pradesh, Nigam Vihar, Shimla. 3. Dr. Jogi Ram Gaur son of Shri Mam chand, presently working as Director, State Forensic Science Laboratory, Himachal Pradesh, Junga, Shimla. … Respondents. Application under Section 19 of the Administrative Tribunals Act, 1985. __________________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioners : Mr. Ashok Sharma & Mr. Jeevesh Sharma, Advocates. For the respondents: Mr.P.K. Sharma, Addl. A.G. with Mr. Anil Jaswal, Dy. A.G., for respondents No. 1& 2. Mr. K.D. Sood and Mr. H.K.Paul, Advocates, for respondent No.3. _________________________________________________________________ Justice V.K. Sharma, Judge. This writ petition being CWP (T) No. 10665 of 2008 arises out of Original Application (OA) No. 1357 of 2004 filed in the erstwhile H.P. State Administrative Tribunal, which on 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 abolition of the said tribunal has been transferred to this Court and registered as such. The Original Application and the original applicants shall hereinafter be referred to as ‘the petition’ and ‘the petitioners’. 2. In pursuance of notification dated 12.6.1990, Annexure A-2, respondent No.3, Dr. Jogi Ram Gaur (in short ‘Dr. J.R. Gaur’), who at the relevant time was working as Senior Scientific Officer (Serology), Forensic Science Laboratory, Madhuban, Haryana (in short ‘FSL, Haryana’) had joined Forensic Science Laboratory, Himachal Pradesh (in short ‘FSL, Himachal Pradesh’) as Assistant Director on deputation basis for a period of three years with effect from April 2, 1990 in the pay scale of Rs. 3000-4500 per month on usual terms and conditions. 3. As per averments, petitioners No. 1 & 2, Bharat Raj Rawat and Arun Sharma had joined the FSL, Himachal Pradesh as Scientific Officers on 17.12.1990 and 16.8.1991, respectively. Respondent No.3, Dr. (Miss) Minakshi Mahajan, had joined FSL, Himachal Pradesh as Assistant Director in the year 2002, as stated at the bar. 4. At the time of filing of the petition in May, 2004, whereas, the petitioners were working in FSL, Himachal Pradesh as Assistant Directors, respondent No.3 was heading the said Laboratory as Director. Petitioner No.2 has since been promoted as Deputy Director. 5. Thus, whereas, respondent No.3 is a deputationist, the petitioners are direct recruits. 6. As already noticed, pursuant to notification dated 12.6.1990, Annexure A-2, respondent No.3 had joined FSL, 3 Himachal Pradesh, as Assistant Director on deputation for a period of three years with effect from April 2, 1990. Thus, the deputation period was to expire on 1.4.1993, which was extended upto 31.1.1994 vide notification dated 16.10.1993, Annexure R-3/9. However, it appears that the deputation period was never extended thereafter. However, vide notification dated 30.7.1994, Annexure A-5, one post of Assistant Director in FSL, Himachal Pradesh (existing in the pay scale of Rs. 3000-4500) was upgraded to that of Deputy Director in the pay scale of Rs. 3700-5000 with immediate effect and consequently, respondent No.3 was ordered to be deemed to be on deputation on the upgraded post of Deputy Director with immediate effect. Soon thereafter, vide notification dated 1.8.1994, Annexure A-3, respondent No.3 was permanently absorbed in FSL, Himachal Pradesh as Deputy Director in the pay scale of Rs. 3700-5000 with immediate effect, on the terms and conditions to be settled subsequently. 7. The petitioners have challenged notification dated 19.5.2003, Annexure A-1, whereby in supersession of earlier notification dated 1.8.1994, Annexure A-3, respondent No.3 was permanently absorbed in FSL, Himachal Pradesh on the post of Assistant Director on notional basis from the date when he was taken on deputation, i.e., w.e.f. 2.4.1990 mainly on the grounds that his initial appointment as Assistant Director on deputation vide notification dated 12.6.1990, Annexure A-2, is void ab initio as he did not fulfil the requisite educational qualifications and eligibility conditions prescribed vide Annexures-I & II to the letter dated 6.2.1989, Annexure A-4, which is in the nature of an 4 advertisement notice-cum-administrative instructions on the subject, vide which the process for filling up Scientific posts in the newly created FSL, Himachal Pradesh was initiated, inasmuch as the incumbent was required to hold a Master’s Degree in Chemistry/ Physics/ Botany/ Zoology/ Bio-Chemistry/ Forensic Science/Mathematics from a recognized University or equivalent, but respondent No.3, who was holding a degree of M.Sc. Anthropology, was not eligible/qualified for the post and his subsequent permanent absorption against the said post on notional basis from the date when he was taken on deputation, i.e. w.e.f. 2.4.1990 vide notification dated 19.5.2003, Annexure A- 1, is ultra vires of the administrative instructions and also violative of the Recruitment & Promotion Rules (in short ‘R&P Rules’) governing the post of Assistant Director in FSL, Himachal Pradesh inasmuch as neither there was consultation with the H.P. Public Service Commission at any stage, that is, at the time of issuance of notifications dated 30.7.1994, Annexure A-5, 1.8.1994, Annexure A-3 and 19.5.2003, Annexure A-1, nor the requisite approval was obtained from the Departments of Personnel and Finance. 8. Against the above backdrop, the petitioners are seeking the following substantive reliefs vide para 7 (i) to (iii):- “(i) to set aside and quash the Notification dated 19.5.2003, i.e. Annexure A-1; (ii) To issue declaration to the effect that respondent No.3 was ineligible to be appointed on deputation basis as Assistant Director in the respondent department as he was not having educational qualification and required experience as provided in the instructions dated 6.2.1989, i.e. Annexure A-4, and further in consequence thereof 5 Annexures A-2, A-3 and A-5 may kindly be ordered to be set aside and quashed. (iii) That respondent No.3 may kindly be ordered to be reverted/sent back to his parent department i.e State Forensic Science Laboratory, Haryana, Karnal, from where he had come on deputation in the respondent department on the post of Assistant Director.” 9. The petition is contested by the respondents on preliminary objections regarding maintainability, locus-standi, cause of action, estoppel, limitation, delay & laches and non- joinder & mis-joinder of necessary parties. 10. On merits, it is averred that respondent No.3, who was holding Master’s degree in Physical Anthropology and had submitted thesis for Ph.D. to Punjab University, Chandigarh in the year 1999 and was already working in FSL, Haryana as Senior Scientific Officer (Serology), was eligible and duly qualified for appointment as Assistant Director on deputation and his subsequent absorption as such vide notification dated 19.5.2003, Annexure A-1, is also in accordance with rules and stands ratified by the Cabinet. It is further submitted that in the meantime during pendency of the petition, respondent No.3 has already been promoted as Director and since the Cabinet decision and promotion of respondent No.3 as Director have not been challenged by amending the petition, the same deserves dismissal. 11. Rejoinders refuting the above stand on behalf of the respondents and re-iterating the averments set up in the petition, have been filed. 6 12. I have heard the learned counsel/learned Additional Advocate General for the parties and perused the records. 13. It shall be pertinent to observe at the very outset that the process for filling up of Scientific posts including two posts of Assistant Directors on deputation for the newly created FSL, Himachal Pradesh was initiated by the Director General of Police, Himachal Pradesh, vide letter dated 6.2.1989, Annexure A-4. The requisite educational qualifications and eligibility conditions for the post of Assistant Director as per Annexures-I & II to the aforesaid letter dated 6.2.1989, Annexure A-4 were as under:- Educational Qualifications: “1. Two Assistant Directors, F.S.L. ESSENTIAL. Master’s degree in Chemistry/Physics/ Botany/ Zoology/ Bio-Chemistry/ Forensic Science/ Mathematics from a recognized University or equivalent. 2. 10 years research, training and analytical experience in any one of the above subjects (evidence to be furnished). DESIRED: 1. Doctorate Degree. 2. Experience of working in Forensic Science Laboratory. 3. Knowledge of customs, manners and dialects of Himachal Pradesh. SPECIALISATION: One Asstt. Director is required for Chemistry/ Toxicology Division. His basic qualifications, training, experience should relate to the field of Toxicology/Chemistry. 2. One Asstt. Director will be required for Bio- Chemistry/Serology Division. His basic qualifications, training, experience should relate to the field of Bio-Chemistry/Serology.” Eligibility Conditions: 1. Assistant Director. Officers under the Centre/ State Govts./ Universities/ recognized research institutions/ statutory/ semi- Government or autonomous Organisations:- 7 (a) (i) Holding analogous posts in the equivalent scale. or (ii) With 5 years service in the posts in the scale of Rs. 2200-4000 or equivalent and (b) possessing the qualifications & experience prescribed in annexure-I. (c ) The deputationist shall not eligible for consideration for appointment by promotion.” 14. According to the petitioners, respondent No.3, who was holding a Master’s degree in Anthropology, was not qualified for the post of Assistant Director, in terms of the laid down qualifications and eligibility criteria. 15. Per contra, according to the respondents, respondent No.3, who was holding a Master’s degree in Physical Anthropology and was already working in FSL, Haryana as Senior Scientific Officer (Serology) fulfilled the requisite educational qualification and eligibility criteria. 16. It shall be pertinent to observe at this stage that though according to the respondents, respondent No.3 was holding a Master’s degree in Physical Anthropology, yet a perusal of the copies of degree, result-cum-detailed marks card and certificate of Master of Science brought on record by respondent No.3, which are at pages 479 to 481 of the Paper Book would go to show that in fact he holds a Master’s degree in Anthropology and not Physical Anthropology. It appears that such pleadings have been set up on behalf of the respondents, particularly respondent No.3 with a view to bring his qualification within the purview of the R&P Rules for the post of Assistant Director (Biology & Serology), which were not in existence at the relevant time and instead came into existence much later vide notification dated 30.8.2007, Annexure R-3/12. 8 Be it stated that the respondents have neither claimed that Master’s degree in Anthropology is equivalent to the qualification provided for the post of Assistant Director or that the requisite qualification was ever relaxed in favour of respondent No.3. 17. It shall be appropriate at this stage to notice the legal position with regard to educational qualifications/eligibility conditions and relaxation thereof. 18. In Mohd. Sohrab Khan versus Aligarh Muslim University and others (2009) 4 SCC-555, the Hon’ble Supreme Court has held as under vide para 26 of the report at page 561:- “The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Master’s degree-holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post.” 19. The Hon’ble Apex Court has further held as under in Veer Kunwar Singh University Ad hoc Teachers Association and others versus Bihar State University (C.C.) Service Commission and others, (2009) 17 SCC 184, vide para 19 of the judgment:- “It is now a well settled principle of law that any appointment made in violation of the constitutional 9 scheme of equality as adumbrated under Article 14 of the Constitution of India as also in violation of the provisions of the Act and the subordinate legislations framed thereunder would be wholly illegal and without jurisdiction. It has been so held by a Constitution Bench of this Court in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753. The ratio of the said decision has since been followed in a large number of cases e.g. R.S. Garg v. State of U.P., (2006) 6 SCC 430 : 2006 SCC (L&S) 1388, Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad, (2006) 7 SCC 684 : 2006 SCC (L&S) 1745, State of M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575 : (2007)1 SCC (L&S) 405, Indian Drugs & a Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 : (2007)1 SCC (L&S) 270, Municipal Corpn., Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373 : (2007) 1 SCC (L&S) 256, A.P. SRTC v. K.V. Ramana, (2007) 2 SCC 324 : (2007) 1 SCC (L&S) 641, Punjab Water Supply & Sewerage Board v. Ranjodh Singh, (2007) 2 SCC 491 : (2007) 1 SCC (L&S) 713, State of Punjab v. Lakhwinder Singh, (2007) 2 SCC 502: (2007)1 SCC (L&S) 723, Yamuna Shankar Sharma v. State of Rajasthan, (2007) 2 SCC 611 : (2007) 1 SCC (L&S) 709 and Post Master General, Kolkata v. Tutu Das (Dutta), (2007) 5 SCC 317 : (2007) 2 SCC (L&S) 179.” 20. It has been held as under by the Hon’ble Supreme Court in Nagendra Chandra and others versus State of Jharkhand and others, (2008) 1 SCC 798 vide para 9 of the judgment:- “In view of the foregoing discussion, we have no option but to hold that if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled. In the present case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction of Rule 10 663(d) of the Bihar Police Manual but also violative of Articles 14 and 16 of the Constitution, which rendered the appointments of the appellants as illegal; as such the competent authority was quite justified in terminating their services and the High Court, by the impugned order, was quite justified in upholding the same.” 21. In Union of India and another versus Narendra Singh, (2008) 2 SCC 750, the Hon’ble Apex Court has held as under vide para 25 of the judgment:- “We are unable to persuade ourselves as to how the Authorities did not carry out the order in letter and spirit as contended by the learned counsel for the respondent. We are also unable to agree with the Tribunal that the reasons recorded for rejection of the case of the respondent were not valid. On the contrary, in our judgment, the Deputy Accountant General was right in keeping in view relevant considerations, such as, the power should be exercised with respect to any class or category of persons, normally there should not be any relaxation in Recruitment Rules unless the eligible and qualified candidates are not available; relaxation should not be exercised to perpetuate mistake; a large number of Accountants who are eligible and qualified but they could not be appointed only because of non-availability of sufficient vacancies.” 22. In Pramod Kumar versus U.P. Secondary Education Services Commission and others, (2008) 7 Supreme Court Cases 153, the Hon’ble Supreme Court has laid down as under vide para 18 of the report:- “If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an 11 irregularity can be (See Secretary, State of Karnataka and others v. Umadevi (3) and others, ((2006) 4 SCC 1) National Fertilizers Ltd. and Ors. v. Somvir Singh, ((2006) 5 SCC 493) and Post Master General, Kolkata and Ors. v. Tutu Das (Dutta), ((2007)5 SCC 317)).” 23. It has been held as under by the Hon’ble Supreme Court in Rajasthan Public Service Commission versus Kaila Kumar Paliwal and another, (2007) 10 Supreme Court Cases 260 vide paras 20 & 21 of the judgment:- “20. A person in order to be considered for promotion to a higher post must possess the essential qualification. If he does not do so, he cannot be considered therefore. Even the selection committee in absence of any express power conferred upon it cannot relax such essential qualification. See J.C. Yadav and Others v State of Haryana and Others [(1990) 2 SCC 189] and Dr. Bhanu Prasad Panda v Chancellor, Sambalpur University and Others [(2001) 8 SCC 532] 21. Recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. See Ashok Kumar Sharma and Others v Chander Shekhar and Another [(1997) 4 SCC 18], U.P. Public Service Commission U.P., Allahabad and Another v Alpana [(1994) 2 SCC 723] and Harpal Kaur Chahal (Smt.) v Director, Punjab Instructions, Punjab and Another [1995 Supp (4) SCC 706]. 24. In State of U.P. versus Neeraj Awasthi and others, (2006) 1 Supreme Court Cases 667, the Hon’ble Apex Court has laid down as under vide para 75 of the judgment:- 12 “The fact that all appointments have been made without following the procedure or services of some persons appointed have been regularised in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetrate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well-settled. [See State of A.P. v. S.B.P.V. Chalapathi Rao and Others, (1995) 1 SCC 724, para 8, Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 SCC 494, para 13 and State of Bihar and Others v. Kameshwar Prasad Singh and Another (2000) 9 SCC 94, para 30].” 25. In M.P. State Agro Industries Development Corpn. Ltd. and another versus S.C. Pandey, (2006) 2 Supreme Court Cases 716, it has been held by the Hon’ble Supreme Court as under vide paras 17 & 21:- “17. The question raised in this appeal is now covered by a decision of this Court in M.P. Housing Board & Anr. v. Manoj Srivastava [ Civil Appeal arising out of SLP (Civil) No. 27360/04 disposed of this date] wherein this Court clearly opined that: (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) Only because an employee had been 13 working for more than 240 days that by itself would not confer any legal right upon him to be regularized in service; (4) If an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof. 21. In Dwarika Prasad Tiwari (supra), whereupon Mr. Mathur placed reliance, a Division Bench of this Court accepted the views of the Full Bench in Narayan Singh Rathor (supra). However, it was held that the Standing Order categorizes the nature of employment and it does not classify individual employees in different posts according to the hierarchy created in a department and thus the proviso to Rule 2 does not apply to promotions or regularizations in higher grade.” 26. The following principle of law has been laid down by the Hon’ble Supreme Court in Secretary, A.P. Public Service Commission versus B. Swapna and others, (2005) 4 SCC 154, vide para 14 of the judgment:- “ The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective 14 unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka and Gopal Krushna Rath v. M.A.A. Baig.)” 27. The three Judges’ Bench of the Hon’ble Apex Court has laid down as under in A. Umarani versus Registrar, Cooperative Societies and others, (2004) 7 SCC 112, vide paras 39 to 42:- “39. Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma.) 40. It is equally well settled that those who come by back door should go through that door. (See State of U.P. v. U.P. State Law Officers Assn.) 41. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature. 42. The question came up for consideration before this Court as far back in 1967 in State of Mysore v. S. V. Narayanappa wherein this Court observed: (SCR p. 132 C-D)” 15 ‘Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence’." 28. In P.K. Ramachandra Iyer and others versus Union of India and others with Dr. Y.P. Gupta versus Union of India and others, (1984)