IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 5408 of 2008. Decided on : 07.04.2011 Yashwant Dev Bhardwaj and others. ..…Petitioners. Versus Himachal Pradesh University and others. …. Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioners : Ms. Ranjana Parmar, Advocate For respondents No.1 & 2 : Mr. Vinod Thakur, Advocate For respondents No.3 to 6 : Mr. Surender Sharma, Advocate. None for the remaining respondents. V.K. Sharma, Judge (Oral) The petition has been filed on the following substantive prayers vide para 7 (i) and (ii) : “ i) That the applicants may be held validly and regularly appointed to the posts of Clerks/Typists from the date of their initial from the date of their initial appointments and in the alternate if they were appointed on adhoc basis initially then their Adhoc appointments may be held to be regularized from the date of their adhoc appointments. ii) That the seniority list Annexure P-16 may be quashed and the applicants be also held entitled to seniority, promotions, 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 confirmation and all other service benefits on the basis of their regular appointments from the said dates of their adhoc appointments. The office order regularizing the applicants be quashed and to the extent that they are enforced with immediate effect and directions be issued to treat the applicants regularized from the date of their initial appointments. ” 2. In reply on behalf of respondents No.1 and 2, the following stand has been taken vide para 6 (ii) : “ (ii) The contents of this para, as stated, are incorrect. As a matter of fact, the respondent University was established by virtue of H.P. University Act, 1970 (Act No.17 of 1970) and there were no Recruitment & Promotion Rules for non- teaching employees and the Himachal Pradesh University Ministerial & Administrative Service (Recruitment, Promotion and certain conditions of service) Rules, 1973 came into force w.e.f. 6.2.1973. In order to keep the administrative of the University running, as new service was proposed to be constituted, it was decided by the Executive Council of the University being the Chief Executive authority that the powers to make recruitment to the posts upto Assistants created from time to time by the Executive Council be delegated to the Vice Chancellor who would do the appointments on the recommendations of the Selection Committee, Annexure R-1. Annexure P-1 is only an internal 3 communication between two wings of the University and it did not create or abolish any posts. The policy and procedure adopted for filling the posts of Junior Clerks was to invite applications through advertisement and also from Employment Exchanges and the minimum qualifications initially were laid down as Matriculate or equivalent with typing speed of 30 w.p.m. Such minimum qualifications, however, later on in respect of Junior Clerks were fixed as First Class Matriculate or Second Class Intermediate/Pre-Medical/Pre- Engineering and in case of typists, the minimum qualifications were Matriculation with type speed at 35 w.p.m. The H.P. University Ministerial & Administrative Service (Recruitment, Promotion & certain conditions of service) Rules, 1973 which came into force on 6.2.1973 lays down the following minimum qualifications for the direct appointment of Junior Clerks :- (i) Clerk/Typist/Calligraphist : He has passed the Matriculation Examination of a recognized University/Board of above and, in the case of Clerk/Typist, he possessed a speed of 3 w.p.m. in typewriting, and, in the case of Calligraphist, he possesses good handwriting in English as well as Hindi and possessed preferably two years office experience; Provided that the condition of qualifying in the typewriting test will not apply in the case of physically handicapped persons who are otherwise 4 eligible for appointment to the post of Clerk in the University under these rules, and who are certified as being unable to type by the Medical Officer of the University or by a Civil Surgeon; Further provided that, in special cases, recruitment may be made of a candidate without typing qualifications subject to the condition that he shall not be confirmed till he acquires the necessary typing qualification. The maximum period during which this special provise will be operative, will be three years. That the entity of the Directorate of Correspondence Courses in the University in terms of the decision of the Executive Council vide item No.26 of its meeting held on 30.10-.1972 is treated as a College maintained by the University like the H.P. University Evening College both in respect of post-graduate and under-graduate courses and also to treat the Director of Correspondence Courses as Principal for such functions as are required to be performed by the Principal of an affiliated college. Copy of the decision of the Executive Counci8l dated 30.10.1972 is annexed as Annexure R-2. There is a single cadre of non-teaching staff working in the University as also in the Directorate of Correspondence Courses. The Director of Correspondence Courses in the absence of H.P. University Ministerial & Administrative Service (Recruitment, Promotion and certain conditions of service) Rules, 1973 was vested with no power to make appointments to the posts 5 of Clerks nor were such powers delegated to him by the Executive Council. The petitioners were initially engaged on daily wage basis as Junior Clerks by the Director of Correspondence Courses w.e.f. 28.7.71, 24.10.71, 8.10.71, 28.7.71, 4.11.71, 6.10.71, 1.9.71 and 2.9.71 respectively and subsequently they were appointed by the Director of Correspondence Courses on Adhoc basis w.e.f. 1.11.71, 1.11.71, 1.11.71, 5.8.72, 5.8.72, 5.8.72 and 5.8.72 respectively. It is further relevant to submit that besides the fact that the Director of Correspondence Courses was not competent to make such appointments on adhoc basis, the recruitment of the petitioners as Junior Clerks on adhoc basis were dehors the executive instructions/policy with regard to the minimum qualifications; selection procedure etc; as is evident from the facts enumerated hereinabove. The executive instructions held the field in the absence of the Recruitment & Promotion Rules and were mandatory in nature, to be followed before any appointment to the posts of Junior Clerks could be made on adhoc or regular basis. It is further relevant to submit that the irregular appointment of the applicants by the Director of Correspondence Courses on adhoc basis were not ratified by the Vice Chancellor; rather on a communication in this regard made by the Director of Correspondence Courses in response to his letter number nil dated 4.11.71, it was specifically made 6 clear by the University that such adhoc appointments could only be made in case they face the Selection Committee/procedure vide letter dated 24.12.1071, a copy of which is Annexure R-3. That the selection for the posts of Junior Clerks was held on 27.3.72 wherein the applicants No.1, 4, 7 and 8 along with other candidates appeared in the selection process but could not secure merit. The applicants again were afforded amongst other daily rated/adhoc Junior Clerks opportunity of qualifying the typing test at a speed of 30 w.p.m. on 15.4.73 but all of them failed to qualify the said test except applicant No.2 who was regularly appointed as Jr. Clerk w.e.f. 15.4.1973. The performance shown by the applicants No.1, 2 and 4 to 8 in the said test is shown as per Annexure R-4. That the Executive Council of the University took a decision to constitute a sub-committee to look into the grievance of non-teaching employees particularly of those who were appointed on adhoc/daily wage basis and the following report of the sub-committee was put up before the Executive Council for consideration: “ (iii): The appointment of the employees running on adhoc basis/daily wages for a long time may be regularized immediately. It is understood that the persons who are working on adhoc basis, were originally appointed on daily wages and that the Vice-Chancellor, regarding it as not very dignified to appoint educated persons on daily wages, decided that all those appointed on daily wages be taken to have been appointed on regular salary on adhoc basis. It is further understood that there are in all about 50 persons working on 7 adhoc basis in all the three campuses of the University. Such persons do not have any legal right to regular appointment by virtue merely of their adhoc appointments, but the committee would recommend to the Executive Council that it may take a sympathetic view and all such employees, as have satisfactory record of work and conduct be regularized, and they should be treated to be appointed on probation for the usual period with effect from the date of the regularization of their appointments. Should anyone of them be deficient in the minimum qualifications prescribed by the Rules, such case will be regularized by the Rules, such case will be regularized only subject to the prior approval of the Executive Council. The Committee further categorically recommends that this regularization of adhoc employees this time should not be taken as any precedent for future.” The Executive Council accepted this recommendation on 12.8.73 and pursuant to this decision, the adhoc appointment of the applicants No.1 and 3 to 8 and others were regularized w.e.f. 22.1.74 subject to their qualifying the type test with a speed of 30 w.p.m by July 1974 on a date to be intimated failing which their services will be terminated without any notice. It is further relevant to submit that the applicants No.4, 5, 6 and 7 qualified the requisite typing test in July 1974 whereas the applicants No.1, 3 and 8 failed to qualify the typing test within the stipulated time. They, however, qualified the same on 18.8.83, 26.10.82 and 12.12.85 respectively.” 3. There is no reply on behalf of the remaining respondents. However, at the time of hearing the learned 8 counsel for respondents No.3 to 6 has adopted the reply on behalf of respondents No.1 and 2. 4. The learned counsel for the petitioners submits at the very outset that the case of the petitioners is covered under two judgments by this Court dated November 28, 1978, in CWP No.137 of 1975, titled Shri Ranjit Singh Thakur and others vs. The Himachal Pradesh University and others, Annexure P-9, and July 24, 1985, in CWP No.280 of 1985, titled Rajinder Dev and others vs. Himachal Pradesh University and another, Annexure P-14A. 5. In view of the above, if on facts, the case of the petitioners is covered under the judgments referred to hereinabove, in CWP No.137 of 1975 and CWP No.280 of 1985 and they are similarly situate, they shall also be treated similarly without any discrimination and the benefit of the aforesaid judgments along with consequential benefits, if any, shall be extended to them within three months from the date of production of copy of this judgment by the petitioners after affording an opportunity of being heard to them/their authorized representative and respondents No.3 to 6/their authorized representative, if so, desired. 6. The petition stands disposed of, so also pending CMP (s), if any. Copy dasti. (V.K. Sharma) Judge 7th April, 2011. cs 9