IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case W.P.No. 89 of 2004 (S/B) and other connected writ petitions Date of decision: 27th October, 2004 For the approval of: Hon’ble Chief Justice V.S. Sirpurkar C.J. Hon’ble Mr. Justice P.C. Verma, J.. - Whether the order/judgment should be sent to the reporters for reporting? ( yes ) - Whether the reporters be allowed to see the judgment? ( yes ) A Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL 1. Writ Petition No. 89 of 2004 (S/B) Dr. Sharad Bhatt & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 2. Writ Petition No. 94 of 2004 (S/B) Renu Khetwal & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 3. Writ Petition No. 96 of 2004 (S/B) Sharad Chandra Mishra & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 4. Writ Petition No. 97 of 2004 (S/B) Kiran Kumar Pant & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 5. Writ Petition No. 98 of 2004 (S/B) Rekha Joshi & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 6. Writ Petition No. 99 of 2004 (S/B) Manbirendra Singh & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 7. Writ Petition No. 100 of 2004 (S/B) Shiv Chand Singh …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 8. Writ Petition No. 103 of 2004 (S/B) Smt. Kamla Fuloria. …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 9. Writ Petition No. 104 of 2004 (S/B) Charu Chand Dhondiyal & others …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 10. Writ Petition No. 106 of 2004 (S/B) Rajendra Prasad Garola & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 11. Writ Petition No. 108 of 2004 (S/B) Daya Prakash Yadav & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 12. Writ Petition No. 113 of 2004 (S/B) Deep Chandra …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 13. Writ Petition No. 114 of 2004 (S/B) Pankaj Kumar Upreti …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 14. Writ Petition No. 119 of 2004 (S/B) Poonam Shah & others. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 15. Writ Petition No. 121 of 2004 (S/B) Lakshmi Dutt …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 16. Writ Petition No. 122 of 2004 (S/B) Akhilesh Bhatt …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 17. Writ Petition No.126 of 2004 (S/B) Anit Rani …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 18. Writ Petition No. 130 of 2004 (S/B) Manoj Kumar Uniyal & another. …….. Petitioners Versus State of Uttaranchal & others. …..… Respondents 19. Writ Petition No. 155 of 2004 (S/B) Adesh Kumar & another. …..… Petitioners Versus State of Uttaranchal & others. …..… Respondents 20. Writ Petition No. 173 of 2004 (S/B) Abinash Kumar …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents 21. Writ Petition No. 293 of 2004 (S/B) Anil Kumar & others. …..… Petitioner Versus State of Uttaranchal & others. …..… Respondents Mr. R.G. Padia, learned Senior Counsel assisted by Mr. Manoj Tiwari, learned counsel for the petitioners. Mr. K.P. Upadhyaya, Brief Holder for the State. Coram: Hon’ble V.S. Sirpurkar, C.J., Hon’ble P.C. Verma, J. Dated: October 27th , 2004 (Per Hon’ble the Chief Justice) 1. This judgment shall dispose of all the writ petitions mentioned above since the controversy involved and the reliefs claimed are identical and also since common arguments were advanc3ed in all these writ petitions. In writ petition No. 89 of 2004 (S/B), the following prayers are made: i. To issue a wit, order or direction in the nature of certiorari for quashing / setting aside the advertisement dated 14.3.2004 (Annexure-15 to the writ petition) issued by the Public Service Commission, Uttaranchal at Haridwar. ii. To issue a writ, order or direction in the nature of mandamus to restrain the respondents from interfering in the functioning of the petitioners as Lectures in their respective subjects in question till such time their case for regularisation is considered in accordance with law. iii. To issue a writ, order or direction in the nature of mandamus declaring the cut off date 30.6.1998 fixed by Rule 4(1) of Uttaranchal Regularisation of Ad-hoc Appointments (On posts within the purview of Public Service commission) Rules, 2002 as arbitrary and illegal. iv. To issue a writ, order or direction in the nature of mandamus directing the respondents to consider the case of the petitioners for regularisation by treating the cut off date as 7.8.2002 i.e. the date of notification of the said Rules and regularise the services of the petitioners in their respective subjects, subject to their fulfilling the eligibility criterion. v. To issue a writ, order or direction in nature of certiorari for quashing the Government orders dated 27.1.2001, 12.7.2002 and 10.7.2003 (Annexure No. 2, 6 and 8 to the writ petition). vi. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay salary in the regular pay scale as prescribed for the regularly selected lecturers in the State along with all consequential benefits including the arrears of salary w.e.f. the date of appointment of the petitioners. vii. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay to all the petitioners their arrears of salary in respect of the period of summer vacation, which has illegally been withheld by the respondents in violation of the judgment of the Apex Court in the State of Haryana Vs Rattan Lal. viii. To issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case, so that justice be done between the parties. ix. To award cost of the writ petition throughout to the petitioners as against the respondents. x. To issue a writ, order or direction in the nature of certiorari for quashing the Government order dated 18.7.2001 (Annexure 12 to the writ petition). 2. Basic Facts and Challenge: All the petitioners are visiting lectures in various colleges. They were appointed to these posts on various dates from the year 2001. There were 185 posts of lecturers lying vacant in 34 Government Degree Colleges and the post Graduate Colleges in the State of Uttaranchal and, therefore , a policy decision was taken by the State Government that the vacancies would be filled-up vide a Government Order dated 27.01.2001. This decision was taken as the education system was adversely affected because of the paucity of lectures and the possible delay in appointment on these posts and also in public interest. However, this arrangement was to be only till selection and the availability of regularly appointed lecturers on the following conditions: 1. That such visiting lecturers should have the qualifications fixed by the U.G.C. i.e. the University Grants Commission and they were to receive Rs. 100/- per hour to the maximum of Rs. 5,000/-. 2. That the maximum age limit in their case was to be 35 years. 3. That they should be selected by a screening committee consisting of the Joint Director, Higher Education as its Chairman along with the Subject Expert and the Principal of the concerned College. 4. That the contract of appointment of such a selected candidate would come to and end on appointment of a regularly selected candidate. 5. That Such visiting lecturers would be selected and invited only against such posts, which are full-time vacant posts. 6. That the honorarium paid to such lecturers would be out of Head Non-plan relating to accepted posts. T 7. Such selected candidate, prior to commencement of his duty, should give an undertaking that on the basis of the selection he / she would not insist for Regularisation or, as the case may be, the regular selection. In pursuance of this decision, an advertisement was published in the newspapers in the third week of February, 2001 notifying the 185 vacancies. A second advertisement was published on 17.08.2001. In the first advertisement, the age limit was shown as 35 years and perhaps, as the enough number of candidates were not available, in the second advertisements, the age limit was increased to maximum of 40 years as on 31.07.2001. In so far as the qualifications are concerned also, in the second advertisement a slight change was effected suggesting therein that even the candidates, who had obtained their Ph. D. by year 2002, were now declared to be qualified. This was in sharp contradiction to the earlier advertisement, where a candidate had to have the qualifications as fixed by the University Grants Commission i.e. Doctorate / M. Phil. Examination by 1993. As stated earlier, after the selection the petitioners were appointed to work as lectures in various colleges and they all joined their duties. The appointment orders came to be passed in case of practically all the petitioners in the month of August, 2001. Again, on 12th July, 2002, another Government Order No. 624/Higher Education/2002-03 (18)/2002 was issued, whereby such visiting lectures, who were selected and working in the academic session 2001-02 were to be continued for the academic session 2002-03 and they would be nomenclatured as Visiting Lectures. It is to be seen that in their appointment for the year 2001-02, the nomenclature of their post was Visiting Faculty. Their appointments were to be continued for the period of 1.07.2002 to 30.04.2003. They were to be paid Rs. 250/- per hour instead of Rs. 100/-per hour and the maximum pay was to be Rs. 8,000/- instead of Rs. 5,000/- Every visiting lecturer had to remain present on all the working days and they were to get the leave maximum to the extend of 10 days in the contract period. Every visiting lecturer had to deliver minimum 40 lectures a month and had to complete the norms. If, for any reason, the norms were not reached, such norms had to be completed in the next month. All the petitioners were invited and were directed by a letter dated 20.07.2002 to report to the concerned Principal. This arrangement continued till the end of the academic session 2002-03 and the Government, thereafter, came out with another Government Order dated 10.07.2003, whereby such visiting lectures, who were working in the academic session 2002-03 were to be continued for the academic session 2003-04 and their contract period was to be between 1.07.2003 till 30.04.2004. It was provided that if after 30.04.2004, there was any necessity, then they could be continued for the work relatin to examinations, for which they were to be paid at the rat of three lectures for the examination of three hours. All the lectures were to be paid the honorarium of Rs. 8,000/- per month (the condition of Rs. 250/- per lecture was not to be found in this Government Order). All the other conditions were to be identical. It was, however , further provided in the Government Order that fresh candidates would not be appointed as visiting lecturers as against the vacant posts and for such fresh vacancies, retired teachers could be invited . Accordingly, all the petitioners were intimated by a letter dated 22.07.2003 for reporting to their Principals. It was, however, informed that if they fail to report, their appointment would be treated as cancelled. It seems that some of lecturers were transferred from one College to other for the academic session 2003-04. 3. It is to be noted that the State Government has framed rules called Uttaranchal Higher Education (Group A) Service Rules, 2003 [Uttaranchal Uchchattar Shiksha (Samuh ‘Ka’) Sewa Niyamawali, 2003] under the proviso to Article 309 of the Constitution of India vide notification No. 703/HE/2003-3(14) 2001 dated 25.08.2003. These were the rules providing for the cadre posts as also providing for the modality for recruitment to the cadre along with the qualifications and the procedure for selection, appointments, pay etc. In short, these were the service rules. Under these rules, the term of ‘visiting lecturer’ has been defined vide Rule 3(n) as under: “Visiting Lecturer means the invite candidates for teaching in Government Degree Colleges since academic session 2001-02 on contract under G.O. 457/H.R.D./2001-3(6) 2000 dated 27.01.2001.” Vide Rule 4, the cadre strength is fixed and it provides 883 posts for the Lecturer / Lecturer, Senior Scale / Lecturer, Selection Grade. Rule 5 provides for the modality of recruitment and in Category IV(b), it is provided that lecturer shall be recruited by direct recruitment through Public Service Commission, Uttaranchal. Rule 8 provides the academic qualifications for the post of lecturer as the qualifications prescribed by the University Grants Commission and approved by the Government of Uttaranchal. Rule 9 is, however, extremely important. It is under the heading ‘preferential qualification’. We are not concerned with Rule 9(a),(b) and (c). Rule 9 (d), (e) and (f) are, however, quoted below in view of their relevance: “9(d)Candidates working as Visiting Lecturers in Government Colleges of the State shall get maximum five percent bonus marks of the total marks obtained in the Examination / Interview provided the candidates working as Visiting Lecturer possesses the minimum qualifications prescribed by the Government for the post of Lecturer; (e) Candidates working as part-time Lecturer in Govt. College of the State, if eligible, shall get maximum five percent bonus marks of the total marks obtained in the Examination / Interview provided the Part-time Lecturer possesses the minimum qualifications prescribed by the Government for the post of Lecturer; (f) Only those Visiting lecturers & Part-time Lecturers shall be given preference in case of selection for the post of Lecturer in Government Colleges, who are working as above on or before the date of notification of Service Rules. This is not a permanent provision.” Rule 10 provides for the maximum and minimum age for the direct recruitment of lectures, which is 21 years minimum and 35 years maximum on January 1 of the year in which the recruitment is to be made. Rule 10(b) is, again, relevant because it concerns the working Visiting Lecturers like the petitioners and it runs as under: “10(b) The working Visiting Lecturers and Part-time Lecturers in Government College of the State who possess prescribed qualifications will be given relaxation in the maximum age limit to the extent needed for the post provided the Visiting Lecturer and Part-time Lecturer were under the prescribed age limit at the time of initial appointment as Visiting Lecturers / Part-time Lecturers.” In short, these rules recognize the class of visiting Lecturers and also provide preferential treatment to them in the matter of their regular selection as against the post of Lecturer. 4. Even before these Rules came into existence, the State Government on 07.08.2002 has passed the Uttaranchal Regularisation of Ad-hoc Appointments (on posts within the purview of the public Service Commission) Rules, 2002 (to be called as Regularisation rules for short ). These Regularisation rules are in exercise of the power under Article 309 of the Constitution of India. Rule 4 of the Regularisation rules runs as under: “4. Regularisation on ad-hoc appointments. – Any person who- (i) was directly appointed on ad-hoc basis before June 30, 1998 and is continuing in service as such on the date of commencement of these rules; (ii) possessed requisite qualification prescribed for regular appointment at the time of ad-hoc appointment; and (iii) has competed or as the case may be, after he has completed three years service as such, shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis of the record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules or orders. (2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee. (4) The appointing authority shall prepare an eligibility as determined from the date of order of appointment and if two or more persons are appointed together from the order in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee alongwith the character rolls and such other records of the candidates as may be considered necessary to assess their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4). (6) The Selection Committee shall prepare a list of the selected candidates, the names in the list being arranged in order of seniority, and forward it to the appointing authority.” It is needless to mention here that the post of a Lecturer in the Government Colleges is under the Public Service Commission. Under the above-mentioned regularisation rules, as would be clear from the language of Rule 4, which we have quoted above, the person who was directly appointed on ad-hoc basis prior to 30.06.1998 and who was continuing in service on the date on 7.08.2002 possessing the requisite qualifications for regular appointment at the time of his ad-hoc appointment and had completed there years of service or after he completes three years of service, was made entitled to be considered for regular appointment in available permanent or temporary vacancy Such consideration was to be on the basis of his record and suitability, for which purpose, an eligibility list was to be prepared in the order of seniority, in keeping with Rule 4(4) of the regularisation rules, by a Selection Committee made for that purpose. 5. As a sequel to the Uttaranchal Higher Education (Group A) Service Rules, 2003, an advertisement came to be issued on 14.03.2004 for 200 posts of Lecturers. Out of these 200 posts, 45 posts are reserved for the Scheduled Castes, 1 post for the Scheduled Tribes, 23 posts for the Other Backward Classed and 131 posts are meant for open category. It is specifically provided in clause (4) of Preferential Qualification that the working visiting lecturers would be awarded 5% of the total marks earned by them as bonus provided such visiting lecturers are qualified and working as visiting lecturers. Significantly enough, it is after this advertisement is issued that the petitioners have come out to file the present writ petitions challenging the afore-mentioned regularisation rules and more particularly, Rule 4 therein, which provides for the consideration of the ad-hoc appointments made for to 30.06.1998 for the purpose of regularisation. 6. Challenge of the petitioners and the rival claims of the respondents: i. The petitioners say that the fixation of cut off date as 30.6.1998 is arbitrary as firstly, there was no rhyme or reason and also there was complete absence of material as to why this date was fixed and thus, it offends Article 14 of the Constitution of India. Shortly stated, their strategy appears to be that if this date is found to be arbitrary, then the date on which the regularisation rules came into existence, namely, 7.08.2002 would be the cut off date and thereby, all of them would get a right to be considered against the permanent or temporary vacancies on the basis of their record and suitability before any regular appointment is made in such vacancies. ii. The second leg of the challenge is that these rules have been passed by the State of Uttaranchal, which, itself, came into being on 9.11.2000 in pursuance of the U.P. Reorganisation Act. If on 30.6.1998, the State of Uttaranchal, itself, was not there, then it could not have fixed a date prior to its creation as a cut off date. iii. It is also the challenge that in providing the service conditions of the employees, who were the employees of the erstwhile State of U.P., the rules have an extra-territorial legislation and are bad for that reason. 7. With this challenge to the regularisation rules, the petitioners have also challenged the afore-mentioned advertisement dated 14.3.2004 on the ground that it is in complete derogation to the percentage of reservation in as much as it is not in keeping with the percentage provided by the U.P. Reservation act, 1994 nor is it in conformity with the reservation policy fixed by the State of Uttaranchal. It is pleaded in this behalf that there is a Government Order passed on 18.7.2001, whereby the State of Uttaranchal had fixed the following quota for the different categories, that was: Scheduled Castes - 19% Scheduled Tribes - 4% Other Backward Classes - 14% Total - 37% The contention of the petitioners is that before the reorganisation of the State of Uttar Pradesh, the provisions of U.P. Reservation Act, 1994 were applicable in the territories now comprised within the State of Uttaranchal and by virtue of U.P. Reorganisation Act, 2000, the said Act was still applicable so long as it is not repealed by the successor State of Uttaranchal. They, therefore, contend that, firstly, the State of Uttaranchal could not have passed the Government Order dated 18.7.2001 without passing the Legislation on the subject. It is pointed out that the different percentages, than the once covered under the U.P. Reservation Act, 1994, could not have been effected by merely issuing a Government Order under Article 162 of the Constitution of India without passing a proper Legislation. In support of their contention, the petitioners heavily rely on Section 86 of the U.P. Reorganisation Act and suggest that a change in the reservation policy could have been effected only be legislature and not by an executive order. Thus, as if this is not sufficient, the petitioners, further, argued that even if the Government Order dated 18.7.2001 was valid, the advertisement was not in keeping with the percentages therein in respect of the reservations. In short, the petitioners want to thwart the efforts on the part of the Government to fill-up the posts by regularly selecting and appointing the lecturers and instead, claimed a writ for their own regularisation on the basis of the regularisation rules. 8. The petitioners do not stop here and claimed that though they had agreed to work on lesser salary by applying the principle of equal work equal pay, they should have been paid the salary of a lecturer in the regular scale and should have also been paid the salary for the summer vacations. It is contended that merely because the petitioners were not in a position to bargain with the Government owing to their unemployedness, they could not be coerced into working as lecturers and doing the identical job of the lecturers on much inferior service conditions. The petitioners, therefore, prayed for the direction to the Government for payment of their salary at the rate of regular scale made applicable to the petitioners along with the summer salary etc. on the basis of the principle of Equal Work Equal Pay. This, in short, is the scope of the writ petitions as they are field. It is at the fag end of the arguments that the petitioners also prayed for quashing the Government Order dated 18.7.2001 relating to the reservation policy applicable to the State of Uttaranchal. This was necessitated because during the arguments, it was pointed out that there was no challenge to the validity of that Government Order. Shortly stated, the petitioners have the following prayers: 1. To quash clause (4) of the aforementioned regularisation rules and consequently regularise the services of the petitioners as lecturers. 2. To quash the Advertisement dated 14.03.2004. 3. To quash the Government Order dated 18.7.2001. 4. To direct the Government to pay their arrears of salary to be calculated on the basis of the regular pay scale of the lecturers. 9.i. As against this, the respondents very vehemently contend that the petitioners, who