IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 7188/2010 Reserved on: 2.8.2011 Decided on:19.8. 2011 _____________________________________________ Naresh Kumar and others. …Petitioners. Versus State of H.P. and another. …Respondents. ______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Ms. Jyotsna Rewal Dua, Advocate. For the Respondents: Mr. R.P. Singh, Asstt. A.G. ___________________________________________________ Justice Rajiv Sharma, Judge. Principal Secretary (Elementary Education) to the Government of Himachal Pradesh sent a communication to the Director, Elementary Education, Himachal Pradesh on 13.6.2008 for initiating process for conducting common entrance test for admission to two years J.B.T. course/session 2008-2010. In sequel thereto, Himachal Pradesh Board of School Education issued advertisement vide Annexure P-4 for holding common entrance test for admission to two years J.B.T. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 course. The last date of receipt of application was 21.7.2008. It will be apt to refer to condition No. 5 incorporated in the advertisement, which reads thus: “5. Neither the appearance in the test shall ipso facto entitle a candidate to get admission in this course nor the JBT training guarantees Govt. service after the completion of training.” 2. Thereafter, written test was held and the petitioners qualified the same and started pursuing two years J.B.T. course. Petitioners have also placed on record admission notice Annexure P-2 issued in the year 2003 whereby condition No.5, as quoted hereinabove from Annexure P-4, was also existing. Petitioners have also placed on record copy of advertisement for the academic session 2010. Conditions No.6 and 7 read thus: “6. Since contractual appointment will be considered after passing of JBT course and subject to permission to filll up vacancies, hence, no bond will be executed to serve in the Education Department. 7. After successful completion of JBT course as above conditions, the candidates are eligible for employment against vacant posts of JBT teacher in Elementary Education Department. Actual appointment will be based on vacancies and necessary approvals to fill the posts. As per present policy fresh appointments are being made on contract.” 3. Ms. Jyotsna Rewal Dua has strenuously argued that the action of respondent-State not to 3 consider the case of the petitioners and similarly situate persons for regular appointment at par with the earlier batches is illegal, arbitrary, discriminatory and thus violative of Articles 14 and 16 of the Constitution of India. She further contended that the condition for considering the candidates for appointment on contract basis has only been incorporated for the admissions, which were made during the year 2010, and the same cannot be applied retrospectively. She further contended that respondents may be directed to give relaxation to appoint the petitioners on regular basis instead on contract basis. She has drawn the attention of the Court to paragraph ‘D’ of Special Leave Petition (page 43 of the paper book) preferred by the respondent-State vide Annexure P-3 before the Hon’ble Supreme Court. 4. Mr. R.P. Singh, learned Assistant Advocate General has vehemently argued that the present petition is not maintainable since the examination is over and the petitioners have no accrued or vested right to be appointed on regular basis. According to him, the posts of J.B.T. teachers are to be filled up as per Recruitment and Promotion Rules and the case of the petitioners can only be considered in accordance with law for contractual appointment on the basis of policy decision taken by the State. He then contended that in the matter of policy 4 decision the scope of judicial review is very limited. He lastly contended that as far as 2008-2010 batch is concerned, no bond was got executed from the students. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. The Court has gone through Annexure P-2 and condition No.5 incorporated therein. Similar condition has been imposed in the advertisement vide Annexure P-4 issued for filling up the seats for two years J.B.T. course for the academic years 2008-2010. It is evident from the plain reading of condition No.5 that neither the appearance in the test shall ipso facto entitle a candidate to get admission in this course nor the J.B.T. training guarantees Government service after the completion of training. Petitioners have been put to caveat. Petitioners had not challenged this condition before hand. The last date of receipt of application was 21.7.2008. Present petition has been filed only on 16.11.2010 after the examination was over. 7. It is for the State Government the manner in which the posts are to be filled up. The appointments to the posts have to be made strictly as per the Recruitment and Promotion Rules. It is not in dispute that the State has already framed Recruitment and Promotion Rules 5 under Article 309 of the Constitution of India for filling up the posts of J.B.T. teachers. 8. It may be true that as far as earlier batches are concerned, taking into consideration the availability of the posts, candidates were appointed on regular basis as J.B.T. teachers. Rather, the bond was also required to be filling up by these candidates that after completion of their courses, they shall make themselves available for the post of J.B.T. teacher. A policy decision has been taken by the State Government to give appointment to the candidates, who have passed J.B.T. course before 2008-2010 batches in contravention of condition No.5, quoted hereinabove. In the instant case, it is evident from letter dated 24.2.2009, i.e. Annexure P-8, issued by the Under Secretary (Elementary Education) to all the Principals, District Institutes of Education and Training, Himachal Pradesh that the Government had already taken a decision in the month of August, 2007 that in future appointments of J.B.T. teachers will be made on contract basis only and while advertising these posts this condition may be made clear right at the beginning so that they knew what they were applying for. It was also brought to the notice of the Principals that the trainees be apprised that they will be considered for job against the available vacancies after they qualify the J.B.T. 6 training course on contract basis only. Thus, it is evident that the petitioners and similarly situate persons through their Principals were put to caveat that in future their cases will be considered for appointment only on contract basis, that too, against the available vacancies. There is no expresse promise held out to them that they will be appointed on regular basis. Though this letter has been written on 24.2.2009 by the Under Secretary (Elementary Education) but there is a reference to the earlier decision taken in the month of August, 2007 belonging to 2008-2010 batch. Respondent-State on the basis of decision taken not to fill up the posts on regular basis from the candidates who qualify their J.B.T. courses now has also incorporated this condition for the academic session 2010. It was made clear that no bond will be got executed from the candidates since case of the candidates was to be considered for appointment on contractual basis subject to permission to fill up the vacancies. It was also clarified that actual appointment will be based on vacancies and necessary approval to fill up the posts. It was also made clear that fresh appointments shall be made on contract basis. The Court is of the considered view that after the policy decision has been taken by the respondent-State in 2007, there is no discrimination between 2008- 2010 and 7 2006-2008 batches. As far as 2006-2008 batch is concerned, the vacancies were available against which the incumbents who had completed their J.B.T. course were appointed and they were asked to fill a bond that they will serve the State. The State has taken a policy decision not to fill up the posts on regular basis from the candidates belonging to 2006-2008 batch. It is open to the State Government to change the policy. The only rider is that it should not be violative of any constitutional or statutory rights. In the case in hand, petitioners have not pointed out any infraction of Articles 14 and 16 of the Constitution of India. Rather, as per condition No.5 incorporated in the advertisement itself, i.e. Annexure P-4, it has been made clear that the successful J.B.T. training does not guarantee Government service. Thus, the plea of the petitioners that decision has been made applicable retrospectively has no merit. The decision had already been taken in the year 2007, as discussed hereinabove, and the advertisement was issued in the year 2008 to appoint the candidates on regular basis who successfully completed the J.B.T course. 9. As far as the plea raised by the petitioners for relaxation is concerned, it is settled that the relaxation can only be strictly as per provisions contained in the 8 Recruitment and Promotion Rules, that too, by assigning cogent and valid reasons. The Court cannot direct the State Government to relax the mandatory conditions of service. Two years J.B.T. course is like any other professional course. There is no guarantee to the candidates who obtain degree/diploma from the professional educational institutions that they will be offered employment after the successful completion of the course. It is for the State Government the manner, mode and the source from which the posts are to be filled up. So far as the plea of filing of Special Leave Petition is concerned, suffice it to say that when it was filed, the State Government had already taken a decision to fill up the posts taking into consideration large number of posts. State is not prevented to change its policy if it does not violate any constitutional or statutory provisions. 10. Ms. Jyotsna Rewal Dua has also placed on record copy of letter dated 29.9.2007. This letter has been issued before the process for filling up the seats for two years J.B.T. course was initiated as per Annexure P-4. Thus, it will not advance the case of the petitioners. 11. Ms. Jyotsna Rewal Dua has also relied upon the judgment rendered by the learned Single Judge, i.e. Annexure P-6 dated 3.6.2010 in CWP No. 2083/2009. 9 The facts of this case were entirely different and this judgment is distinguishable on law as well as facts. The ratio of this judgment is not applicable in the present case as the issues involved in the present petition are not same and similar. The petitioners have no inherent right to be appointed on regular basis after the completion of J.B.T. course. State Government has already taken a policy decision to consider the case of the petitioners and similar situate persons on contract basis as per Recruitment and Promotion Rules. There is no discrimination between 2006-2008 and 2008-2010 batches. Petitioners have already been put to caveat as per condition No.5 of Annexure P-4. The Court cannot direct the respondents to relax the Recruitment and Promotion Rules. 12. Their Lordships of the Hon’ble Supreme Court in Ekta Shakti Foundation versus Government of NCT of Delhi, (2006) 10 SCC 337 have held that the correctness of the reasons for adopting certain policy by the executive is beyond judicial review, unless breach of fundamental rights is shown. Their Lordships have held as under: 11. “5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of 10 policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. 8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (1912) 57 L Ed 730. "The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and 11 unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. [See: State of Orissa and others v. Gopinath Dash and Others (2005) 13 SCC 495]. 13. Their Lordships of the Hon’ble Supreme Court in Directorate of Film Festivals and others versus Gaurav Ashwin Jain and others, (2007) SCC 737 have held that scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Their Lordships have further held that legality of the policy and not the wisdom or soundness of the policy is the subject of judicial review. Their Lordships have held as under: “16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or 12 soundness of the policy, is the subject of judicial review [vide : Asif Hameed v. State of J&K - 1989 Supp (2) SCC 364; Shri Sitaram Sugar Co. Ltd., v. Union of India - 1990 (3) SCC 223; Khoday Distilleries v. State of Karnataka - 1996 (10) SCC 304, Balco Employees Union v. Union of India - 2002 (2) SCC 333), State of Orissa vs. Gopinath Dash - 2005 (13) SCC 495 and Akhil Bharat Goseva Sangh vs. State of Andhra Pradesh - 2006 (4) SCC 162].” 14. Their Lordships of the Hon’ble Supreme Court in Delhi Development Authority and another versus Joint Action Committee Allottee of SFS Flats and others, (2008) 2 SCC 672 have held that broadly, a policy decision is subject to judicial review on the following grounds : (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the Regulations; (c) if the delegatee has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy. 15. Their Lordships of the Hon’ble Supreme Court in Shimnit Utsch India Private Limited and another versus West Bengal Transport Infrastructure Development Corporation Limited and others, (2010) 6 SCC 303 have held that Government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. Their Lordships have further held that the Government has a 13 discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Their Lordships have further held that the change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice. Their Lordships have held as under: “52. We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The courts have repeatedly held that government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice. 53. In Association of Registration Plates1, this Court while dealing with the challenge to the conditions with regard to experience in foreign countries and prescribed minimum turnover from that business observed that these conditions have been framed in the NIT to ensure that the manufacturer selected would be technically and financially competent to fulfill the contractual obligations and to eliminate fly-by-night operators and that the insistence of the State to search for an experienced manufacturer with sound financial and technical capacity cannot be misunderstood. While maintaining the State Government's right to get the right and most competent person, it was held that in the 14 matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of HSRP, greater latitude is required to be conceded to the State authorities and unless the action of tendering authority is found to be malicious and a misuse of statutory powers, tender conditions are unassailable. 54. On the contentions advanced, this Court examined the impugned conditions and did not find any fault and overruled all objections raised by the petitioners therein in challenge to these conditions. This Court has neither laid down as an absolute proposition that manufacturer of HSRP must have the foreign experience and a particular financial capacity to fulfill the contractual obligations nor it has been held that these conditions must necessarily be insisted upon in the NIT. 55. The judgment of this Court in Association of Registration Plates1 cannot be read as prescribing the conditions in NIT for manufacture and supply of HSRP. Rather this Court examined legality and justification of the impugned conditions within the permissible parameters of judicial review and recognized the right of the States in formulating tender conditions. In our opinion, there is no justification in denying the State authorities latitude for departure from the conditions of the NIT that came up for consideration before this Court in larger public interest to broaden the base of competitive bidding due to lapse of time and substantial increase in the number of persons having TAC from the approved institutes without compromising on the quality and specifications of HSRP as set out in Rule 50, Order 2001 and Amendment Order, 2001. 66. As regards the State of Orissa, it is an admitted position that it issued NIT for the first time on April 11, 2007 inviting bids for the manufacture and supply of HSRP in respect of the existing motor vehicles and vehicles to be registered in the State of Orissa. The said NIT was not taken to logical conclusion and a fresh 15 NIT was issued on July 6, 2009 on BOO basis. In that NIT, inter alia, eligibility criteria has been provided that bidder should have experience of working in the field of HSRP having used the security features as mentioned in Rule 50 of 1989 Rules. However, NIT does not insist on conditions like experience in the foreign countries and minimum prescribed turnover from the said business. In what we have already discussed above, no case for judicial review or intervention in the said NIT is made out.” 16. Their Lordships of the Hon’ble Supreme Court in a recent judgment in State of Himachal Pradesh and others versus Himachal Pradesh Nizi Vyasayik Prishikshan Kendra Sangh, (2011) 6 SCC 597 have held that it is the pervasive power and authority vested in the Government to frame policy and guidelines for progressive and legitimate growth of the society and create balances in the arena inclusive of imparting technical education from time to time. Their Lordships have further held that ultimately it is the responsibility of the State to provide good education, training and employment, it is best suited to frame a policy or either modify/alter a decision depending on the circumstances based on relevant and acceptable material. Their Lordships have further held that legitimate expectation is not applicable to policy matter. Their Lordships have held as under: 16 “10) It is seen that the Cabinet considered the proposal of the State Council for Vocational Training and after deliberation, the decision has been taken to continue various courses under SCVT except for the courses at Sl. No. 1 (Art and Craft), Sl. No. 4 (Library Science) and Sl. No. 7 (PTI). Though in the supplementary affidavit, the State has not highlighted the reason for discontinuing the three courses in the State of Himachal Pradesh, the High Court presumed that the State is precluded from taking fresh/revised policy in the matter of imparting technical education. In fact, in the said decision, the State has not barred all the institutions from continuing the courses already notified under SCVT. The Cabinet decided to discontinue only three courses. Inasmuch as the said Cabinet decision dated 18.07.2009 not being the subject matter or issue of the writ petition, the State was not in a position to highlight all the details before the Court. Accordingly, we are satisfied that the High Court was not justified in interfering with the Cabinet decision dated 18.07.2009 which was not the issue or challenge in the writ petition. We are also unable to accept the conclusion of the High Court that the petitioner’s association (respondent herein) is entitled to run all the courses under the principle of ‘legitimate expectation’. 11) The High Court has lost sight of the fact that education is a dynamic system and courses/subjects have to keep changing with regard to market demand, employability potential, availability of infrastructure, etc. No institute can have a legitimate right or expectation to run a particular course forever and it is the pervasive power and authority vested in the Government to frame policy and guidelines for progressive and legitimate growth of the society and create balances in the arena inclusive of imparting technical education from time to time. Inasmuch as the institutions found fit were allowed to run other courses except the three mentioned above, the doctrine of legitimate expectation was not disregarded by the State. Inasmuch as ultimately it is the responsibility of the State to provide good education, training and employment, it is best suited to frame a policy or either modify/alter a decision depending on the circumstance based on relevant and acceptable materials. The Courts do not substitute its views in 17 the decision of the State Government with regard to policy matters. In fact, the Court must refuse to sit as appellate authority or super legislature to weigh