IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No.1171 of 2005 Judgment reserved on:7.8.2008 Date of decision:11.8.2008. State of H.P. and another ....Petitioners -Versus- Narinder Dutt Sharma and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta,Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the Petitioners: M/s.R.M.Bisht & Rajesh Mandhotra, Dy.A.Gs. For the Respondents: Mr.Dalip Sharma, Advocate Deepak Gupta, J. This Writ Petition by the State is directed against the order of the learned H.P. State Administrative Tribunal (For short Tribunal) passed in O.A. No.146 of 1992 decided on 29th December, 2004 whereby the petitioners have been directed to treat the respondents to have been regularly appointed with effect from the date from which they initially started working. Brief facts necessary for decision of the case are that the Director, Health Services invited applications for sponsorship of candidates for undergoing para-medical Ophthalmic apprenticeship training. The applications were invited through the Employment Exchanges also. The names of the respondents along with many 2 others were sponsored by the Employment Exchanges. It is apparent that at that time no Rules had been framed for filling up the posts of Ophthalmic Assistants. It is however apparent from the material on record that a proper procedure of selection was followed and after following this procedure of selection the respondents along with other persons were selected for Para medical Ophthalmic Assistant Training Course. Consequent to their selection the candidates were issued identical letters informing them about their selection. The interviews for selection were held on 10.9.1982 and vide letter dated 13.10.1982 the Director of Medical Education-cum-Principal of the then Himachal Pradesh Medical College, Snowden, Shimla informed the respondents that they have been selected. Relevant portion of the letter reads as follows: “With reference to his/her interview held on 10.9.82, Shri/Smt/Kumari….Ram Lal Chauhan Regn.No.6175/77) is hereby selected for Para Medical Ophthalmic Assistant training course on the following terms and conditions: 1.to 3………………. 4.He/She shall execute a bond to serve the rural medical institutions in Himachal Pradesh for a minimum period of 5 years after completion of the training. In case he/she discontinues the training or does not accept the appointment offered to him/her after the training or leave the service before completion of the bond period he/she shall refund the stipend and pay. Xxxxxxxxxxxxxxxxxxxxxxxxxxxx In case, the above terms and conditions are acceptable to him/her, Shri/Smt./Kumari Ram Lal Chauhan could report to the undersigned by 20-10-82 positively, failing which the offer will be treated as cancelled.” A bare perusal of this letter shoes that one of the conditions of undergoing training course was that the successful applicants were bound to serve for minimum period of 5 years after completion of 3 training. It is not disputed that the respondent successfully completed the training and passed the para-medical Ophthalmic Assistant examination held in October, 1984. Thereafter, as many as 20 persons including the respondents were offered appointment as Optometrists/ Refrectionists vide letter dated 15th January, 1985. The appointment of the respondents and others were stated to be purely on ad hoc basis and could be terminated with one month’s notice on either side. As observed above, at that time, the State Government had not framed any R&P Rules for filling in the posts of Ophthalmic Assistant/Optometrists. Thereafter, on 30th November, 1988 the State of Himachal Pradesh promulgated the R&P Rules for Ophthalmic Assistants laying down the various criteria and qualifications required for appointment as Ophthalmic Assistant. It is not disputed before us that the term Ophthalmic Assistant as well as the term Optometrists have been used by the State in an interchangeable manner. On 13th April, 1989 the Director Health Services issued a communication stating that 24 posts of Ophthalmic Assistants had been created in addition to the 42 already existing posts of Optometrists and the designation of Optometrists was changed to that of Ophthalmic Assistants in the same scale of pay. On 30.1.1992 the State invited applications for filling up 67 posts of Ophthalmic Assistants on the basis of R&P Rules. The persons who had already been appointed on 15th January, 1985 and had been working since than were also asked to apply for the said 4 posts. Some of the said persons applied for selection through the Public Service Commission. However, the respondents approached the Tribunal before the posts were filled up and prayed that since they were working for the last more than 7 years their services should be regularized without asking them to appear in the test. The State contested this O.A. The Tribunal passed an interim order stating that selections, if any, made pursuant to the letter dated 30th January, 1992 would be subject to the result of the O.A. The O.A. was decided in the year 2004. The learned Tribunal relying upon various judgments of the Apex Court including Rattan Lal and others etc.etc. vs. State of Haryana and others, AIR 1987 SC 478, Daily Rates Casual Labourer Employed under PUT Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India and others, AIR 1987 SC 2342, Union of India vs. All India Service Pensioners Association and another, 1988(1) SLR 353, Jacob M.Puthuparambil vs. Kerala Water Authority, 1991(1) SCC 31, Gujrat Agricultural University vs. Rathod Labhu Bachar & Others, (2001) 3 SCC 574 and Bhagwati Prasad vs. Delhi State Mineral Development Corporation, (1990) 1 SCC 361, held that since the applicants fulfilled all the educational qualifications and posts were available with the Department, the applicants were entitled to be regularized and ordered that they be treated to have been appointed on regular service from the initial date of appointment. This order is under challenge in this writ petition. 5 The main contention raised on behalf of the State is that no Rules had been framed prior to 1989 and after the Rules were framed the posts were advertised. It is contended on the basis of the judgment delivered by the Apex Court in Secretary, State of Karnataka and others vs. Uma Devi and others, (206) 4 SCC 1, that neither the Tribunal nor this Court had any jurisdiction to order regularization of the respondents. It is also contended that since all the other ad hoc employees applied for the posts and were selected by the Public Service Commission, the respondents cannot be granted regularization from a date earlier to those candidates who appeared in the test. At the outset, we may note that some undisputed facts are that the names of the respondents were duly sponsored by the Employment Exchanges after applications were invited by the Director of Medical Education. Once they were selected their names were struck off from the Employment Exchanges. It is also not disputed that the respondents were selected after following a proper procedure of selection. It is true, that since there were no Rules, the procedure is not prescribed under the Rules. The law is well settled that in the absence of Rules even executive instructions can have statutory force of law. Reference may be made to Km.Manju and another vs. State, AIR 1972 HP 37. The State had not framed Rules at the relevant time but wanted to make appointments to the posts of Ophthalmic Assistants. The selections were not made in an under-hand manner. Advertisements were issued and interview was 6 conducted and on the basis of the said interviews, selections were made for undergoing training to the course of Ophthalmic Assistants. It is also not disputed that the sanctioned posts of Ophthalmic Assistants were lying vacant. The persons who had duly qualified the Ophthalmic Assistant training were offered the said posts. Their selection cannot be said to be a back door entry. In Uma Devi’s case (supra) the Apex Court has clearly held that the Court cannot order regularization of a person who has been initially appointed in contravention of the Rules or by not following the Rules or by making a back door entry. None of these conditions apply in the present case. The respondents were appointed after inviting applications and following a due process of selection. On successful completion of the training they were offered employment in terms of the appointment letters. It would be apt to note that in para 43 of the judgment the Apex Court has clearly held as follows: “43……..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…..” In the present case, as we have already held above, the original appointments were made by following a due process of selection as fixed by the employer in the absence of the Rules. Therefore, the initial appointments of the respondents cannot be said to be illegal or 7 against the law. The Apex Court in the aforesaid case in para 53 held as follows: “53.One aspect need to be clarified. There maybe cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment…..” The case of the respondents fall squarely under this portion of the judgment rendered in Uma Devi’s case (supra). We may also add that in fact the services of the respondents have already been regularized by the State and the only dispute is with regard to their seniority vis-à-vis the fresh employees who were appointed pursuant to the selections made in the year 1992. The respondents did not set up any claim for wages etc. In view of the facts narrated above we feel that the respondents who had served for a long period of time i.e. almost 10 years, if the period of in-service training is taken into consideration and more than 7 years even if the period of training is excluded, were entitled to be given precedence over fresh recruits especially when they were duly qualified and appointed against vacant posts and there is no complaint that their work was in any way un-satisfactory. However, there is one inequity which has crept in by the order of the learned Tribunal. In terms of the order the persons initially appointed along with the respondents but who opted to appear in the 8 test in the year 1992 will get seniority only from 1992 whereas the respondents shall get seniority from the year 1985. This cannot be permitted. We therefore allow the writ petition of the State only to the limited extent that the seniority of the respondents vis-à-vis the other persons appointed along with them vide letter dated 15th January, 1985 shall be drawn up on the basis of the merit in the training Course. However, the respondents must rank senior to the other persons appointed thereafter on the basis of the test conducted in the year 1992. The petition is allowed to the limited extent as aforesaid with no order as to costs. ( Deepak Gupta ), Judge August 11, 2008. ( V.K. Ahuja ), PV Judge