IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 415 of 2000 along with CWP Nos. 144,520, 728, 729, 730, 731, 732, 769, 883 of 2000, 50/2001, 1153 & 960 of 2006. Judgment reserved on: 5.8.2008 Date of Decision: September 1, 2008 1. CWP No. 415 of 2000. Baldev Singh & others … Petitioners. Versus. State of H.P. & others ..Respondents For the Petitioner(s): Mr. Dalip Sharma, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents 1 & 2. Mr. Shrawan Dogra, Advocate, for respondent No.4. None for respondent No.3. 2. CWP No. 144 of 2000. State of HP & others … Petitioners. Versus. Vijay Singh ..Respondent For the Petitioner(s): Mr. R.M.Bisht, Deputy Advocate General. For the Respondent(s): Ms. Salochana Kaundan, Advocate, vice Mr. O.P. Thakur, Advocate. Mr. Bhuvnesh Sharma, Advocate, for the interveners. 3 CWP No. 520 of 2000. Sanjay Kumar & others … Petitioners. Versus. State of H.P. & others ..Respondents - 2 - For the Petitioner(s): Mr. Sanjay Dutt Vasudeva, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents 1 to 3. Mr. Shrawan Dogra, Advocate, for respondent No.4. None for respondent No.3. 4 CWP No. 728 of 2000. Hari Dass Verma … Petitioner. Versus. State of H.P. & others ..Respondents For the Petitioner(s): Mr. Hem Raj Bhardwaj, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents. 5 CWP No. 729 of 2000. Hem Raj … Petitioner. Versus. State of H.P. & anr ..Respondents For the Petitioner(s): Mr. Hem Raj Bhardwaj, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents 6 CWP No. 730 of 2000. Tek Singh … Petitioner. Versus. State of H.P. & anr ..Respondents For the Petitioner(s): Mr. Hem Raj Bhardwaj, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents. - 3 - 7 CWP No. 731 of 2000. Mohinder Kumar … Petitioner. Versus. State of H.P. & others ..Respondents For the Petitioner(s): Mr. Hem Raj Bhardwaj, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents. 8 CWP No. 732 of 2000. Jai Kumar … Petitioner. Versus. State of H.P. & anr ..Respondents For the Petitioner(s): Mr. Hem Raj Bhardwaj, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents 9 CWP No. 769of 2000. Swayam Prakash … Petitioner. Versus. State of H.P. & anr ..Respondents For the Petitioner(s): Mr. Hem Raj Bhardwaj, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents . 10 CWP No. 883 of 2000. Sanjay Thakur … Petitioner. Versus. State of H.P. & others ..Respondents For the Petitioner(s): Mr. Onkar Jairath, Advocate. For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents. - 4 - 11 CWP No. 50 of 2001. Nisha Rani … Petitioner. Versus. State of H.P. & others ..Respondents For the Petitioner(s): Mr. Sanjay Dutt Vasudeva, Advocate For the Respondent(s): Mr.R.M.Bisht, Deputy Advocate General, for respondents 12 CWP No. 1153 of 2006. State of H.P. & others … Petitioners. Versus. Mukta Sharma .. Respondent For the Petitioner(s): Mr. R.M.Bisht, Deputy Advocate General. . For the Respondent(s): Mr.Bipin Chander Negi, Advocate. 13 CWP No. 960 of 2006. State of H.P. & others … Petitioners. Versus. Lalit Goel ..Respondent For the Petitioner(s): Mr. R.M.Bisht, Deputy Advocate General. For the Respondent(s): None for the respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja,, Judge. Whether approved for Reporting? For the Petitioner (s): ( see above ) For the Respondent (s): “ - 5 - Deepak Gupta, J. The aforesaid writ petitions are being disposed of by a common judgment since identical questions of law and fact are involved in these cases. The whole problem has arisen because the Government in spite of repeated judicial pronouncements continues to make appointments to certain posts in violation of the rules. Persons are appointed to various posts without following the recruitment and promotion rules. After serving for a few years, these persons who are appointed without following the prescribed procedure clamour that they should be regularized. This problem can be best avoided if the Government strictly follows the rules. In the last 15 years, various governments have framed Schemes for appointments of teachers. Some of these Schemes are Voluntary Teacher Scheme, Vidya Upasak Scheme, Para Teacher Scheme, PTA teachers scheme etc. etc. The entire purpose of framing these schemes is to avoid making recruitments to the post of teachers by following the procedure prescribed by law. Under normal Recruitment and Promotion Rules, the appointment of teachers is made through the H.P. Public Service Commission. Under the schemes, which have - 6 - been framed in violation of the rules and are against the very ethos of Article 311 of the Constitution of India, appointments are made at a very lower level some times at the school level. The Selection Committees consist of people who can be easily manipulated. At the time when the schemes are framed, the Government promises that regular appointments shall be made in accordance with rules. However, once the persons appointed against the schemes have continued for a few years, they start raising protests that their services should not be dispensed with in accordance with the terms of the scheme but they should be regularized. In the present cases, we are concerned with teachers employed on contract basis in various schools in Himachal Pradesh. The teachers were appointed on contract basis as College lecturers, School lecturers, JBT teachers, C & V teachers and Lab attendants. When the contractual period of appointment of these teachers had ended or was coming to an end, a large number of cases were filed against their termination or proposed termination before the learned H.P State Administrative Tribunal. A full bench of the learned Tribunal was constituted to decide the following important questions:- - 7 - (i) “Whether tenure/contract employment in Education Department of the State is in substance the same as ad hoc appointment? (ii) In case point No.1 is decided in the affirmative, whether they are entitled to continue till the time they are replaced by regularly appointed employee? (iii) Whether such employees are entitled to the benefit of regularization at part with the ad hoc teacher? (iv) Whether the policy to engage the teachers on contract/tenure/ad hoc basis, despite the existence of Recruitment & Promotion Rules for appointment of persons on regular basis is, legal, valid and in consonance with the constitutional mandate. (v) Whether the cut off date of March 31, 1994 mentioned in the policy for regularization is arbitrary and whether it meets the test of objectivity?” The learned Tribunal answered question No.1 by holding that the employees hired on contract basis would have the same status as ad hoc or tenure teachers. Question No.2 was decided by holding that the petitioners were entitled to continue till they were replaced by regularly appointed persons in accordance with the recruitment and promotion rules. Question No.3 was answered by holding that in terms of the - 8 - policy of the Government only those teachers who had completed three years service on 31.3.1994 or who were already in employment on 31.3.1994 and had completed three years service thereafter would be regularized in the Department of Education. Question No. 4 was answered by holding that though the State was only entitled to make stop gap arrangements and to that extent, the appointments may be valid but the continuation of such appointments for a long period of time is definitely not desirable and definitely illegal. Question No.5 was answered by holding that the fixation of the date as 31.3.1994 could not be said to be arbitrary or illegal. It was consequently held that the benefit of regularization could not be extended to persons appointed after 31.3.1994. On the basis of the orders of the full bench of the learned Tribunal, a large number of matters were disposed of and a large number of contract employees have approached us in these writ petitions. The State has also challenged the findings of the learned Tribunal on question No.1. The State is basically aggrieved by the fact that by holding the contract teachers equal to ad hoc teachers, the contract teachers would be entitled to salary during the period of vacations also. We have heard Shri Dalip Sharma who had led arguments on behalf of the petitioners -teachers and Shri Ram - 9 - Murti Bisht, learned Deputy Advocate General for the respondents. At the outset, we may mention that most of questions raised in these writ petitions do not survive in view of the judgment rendered by the Apex Court in (2006) 4 SCC 1, Secretary, State of Karnataka and others versus Uma Devi (3) and others. It would be pertinent to refer to certain observations made by the Apex Court which are relevant to the present case:- 6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedures which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various - 10 - departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed. 11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and - 11 - Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein. 12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. 16. In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no - 12 - regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. 26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent. 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the - 13 - Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the - 14 - economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post - 15 - cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India. 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. The aforesaid erudite and absolutely relevant observations of the Apex Court can only lead to one conclusion that when the Recruitment & Promotion Rules ( for short R& P Rules) have been framed, the State should not make any - 16 - appointment without following the said rules except when the same becomes absolutely necessary. In the present case, the teachers in normal course should have been appointed through the Public Service Commission. The contract teachers were appointed directly by the Principals of the