IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 5228 of 2008. Reserved on: 23.03.2010. Decided on 21.04.2010. _____________________________________________________ Prem Lal Sharma. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the petitioner. : Mr. Dilip Sharma, Advocate. For the respondents. : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was engaged as lecturer in Political Science on contract basis in Government Senior Secondary School, Pahal w.e.f. 11th September, 1998 to 11th May, 2000. His services were terminated on the joining of a regular incumbent w.e.f. 11th May, 2000. He was re-engaged as lecturer Political Science (School Cadre) at Government Senior Secondary School, Bhumti and he joined as such on 31.08.2001. According to petitioner, at the time of his retrenchment, number of vacancies were lying vacant in surrounding Schools. His further case is that as per Annexure S- 1, dated 31.12.2008, lecturers in the subject of Political Science from Sr. Nos. 3, 11 to 13, 16, 19 to 26, 28, 30, 1 Whether the reporters of the local papers may be allowed to see the judgment?. - 2 - 32, 33, 35 to 37 and 39 to 41, who were appointed on contract basis after the appointment of petitioner had been regularized, however, his case was not considered. Similarly, as per Annexure S-2, dated 12.01.2009, the lecturers at Sr. Nos. 7 to 9, 22, 23, 38 and 39 had been regularized w.e.f. 31.12.2008 on completion of eight years of service as on 31.3.2008. These lecturers were junior to the petitioner on the basis of their appointment as lecturer (School Cadre). In total, 30 lecturers, who were junior to the petitioner had been regularized, whereas the petitioner is still continuing as lecturer on contract basis. Mr. Dilip Sharma, learned counsel for the petitioner has vehemently argued that action of the respondents to terminate the services of petitioner on the joining of a regular incumbent at Government Senior Secondary School, Pahal was illegal, arbitrary, unjust and, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, posts of lecturers (Political Science) were lying vacant in 19 Schools and the regular incumbent could be posted against these posts. He further contended that the respondents while terminating the services of his client on 11th May, 2000 have not followed the principle of ‘’last come first go’. He lastly contended that the persons junior to the petitioner have been regularized to the posts of lecturers (School Cadre) as per Annexures S-1 and S-2. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the services of only those incumbents have been regularized as School Cadre lecturers who have completed eight years of regular service and since there was - 3 - break of about one year in the case of petitioner, his case could not be considered. I have heard the learned counsel for the parties and gone through the record carefully. Petitioner’s initial date of engagement as lecturer on contract basis at Government Senior Secondary School, Pahal is 11th September, 1998. He had worked in this capacity up to 11th May, 2000. His services were terminated on the joining of a regular lecturer in the subject of Political Science w.e.f. 11th May, 2000. He was re-engaged as lecturer (Political Science) at Government Senior Secondary School, Bhumpti and joined as such on 31.8.2001. In paragraph No. 4 of the petition, it is stated that 19 vacancies of lecturers in the subject of Political Science were lying vacant in various Schools and the regular hand should have been appointed against one of these vacancies instead of terminating the services of petitioner. Petitioner has also categorically stated in the petition that the persons junior to him were retained while terminating his services on the joining of a regular hand. It is now well settled principle under service jurisprudence that while terminating the services of persons appointed on contract basis, principle of ‘last come first go’ must be followed. A Division Bench of this Court in a recent judgment rendered in Baldev Singh and others versus State of Himachal Pradesh and others, Latest HLJ 2009 (HP) 293, has held as under: “14. There is no other point which has been agitated before us. This point is that the State must follow the principle of ‘first come to last go’ while - 4 - dealing with the persons appointed without following the R&P rules. This Court vide a detailed interim order dated September 19, 2000 had directed the State Government to prepare a seniority list of all such appointees. We have found that in a number of cases, the officials of the State follow very devious and highly unethical method of ousting the employees who have been employed on contract earlier. We may give two examples of law this is done. Supposing a person ‘A” has been appointed as contract teacher and is posted at station ‘S’ for a long duration. The State, on regular selections being made, posts a regular appointee at station ‘S’. Person ‘A’ will be removed but the other person (s) who may have worked for a much shorter period as contract teachers(s) another stations are permitted to continue. Another method used is that after the person “A” has been removed, the regular appointee is transferred to some other station and a contract employee at some other station, who may have a much shorter tenure than “A” is brought to station “S”. Sometimes the second person is also removed and a fresh contract appointee is appointed. This practice cannot be permitted to continue. Therefore, we direct that the State shall follow the principle of ‘first come last go’ even in the case of contract employee(s). Whereby direct that though normally no appointments should be made de hors the rules, in case such appointments are made then the State must follow the principle of ‘last come first go’ while removing the persons not appointed in accordance with R&P rules. The State cannot raise the bogey that the appointments have been made by the school level or at the Tehsil level and therefore, it cannot follow this principle of ‘last come first go’. In case under the R&P rules the cadre to which a person is appointed is a State cadre, the State Government - 5 - must follow the principle of ‘last come first go’ by taking all the employees in the State into consideration. In case of district cadre post, it will follow ‘first come last go’ principle in relation to the employees of the concerned district.” The Court is of the considered view that in view of the settled position of law, petitioner’s services could be terminated only on the principle of ‘last come first go’ and in the alternative, the regular incumbent should have been posted at a place where the vacancy was available. As per averments contained in paragraph-4 of the petition, action of the respondents to terminate the services of petitioner w.e.f. 11th May, 2000 is declared illegal. The effect of terminating the services of petitioner illegally has deprived the petitioner’s right to seek regularization as per the policy framed by the State Government. The State Government has framed a policy, whereby the lecturers who have completed eight years of service on contract basis, are regularized. Petitioner has also filed a supplementary affidavit. He has annexed alongwith this affidavit Annexures S-1, dated 31.12.2008 and S-2, dated 12.01.2009. A bare perusal of Annexure S-1 reveals that persons from Sr. Nos. 3, 11 to 13, 16, 19 to 26, 28, 30, 32, 33, 35 to 37 and 39 to 41, had been regularized as lecturers (School Cadre) in the subject of Political Science, though they were appointed on contract basis after the appointment of petitioner. It is clear from Annexure S-2, dated 12.01.2009, the lecturers at Sr. Nos. 7 to 9, 22, 23, 38 and 39 were appointed on contract basis after the appointment of petitioner, but they had also been regularized. The persons mentioned hereinabove, are admittedly - 6 - junior to the petitioner, however, they stood regularized after completion of eight years of service. In total, 30 lecturers in the subject of Political Science, who were junior to the petitioner, had been regularized, however, the petitioner has been left out and is still working on contract basis. The upshot of the above discussion is that the persons junior to petitioner were retained at the time of his termination and the regular incumbent, who has relieved the petitioner, has not been posted at a place where the vacancies were lying vacant. The respondents were bound to condone the delay of about one year for the purpose of seniority to be taken into consideration at the time of regularization. The persons junior to the petitioner as per Annexures S-1 and S-2 had been regularized and his case has not been considered. Accordingly, in view of the observations, made hereinabove, the petition is allowed. The termination of the petitioner dated 11.05.2000 is declared illegal being violative of the principle of “last come first go”. Respondents are directed to consider the case of petitioner for regularization as lecturer (School Cadre) by taking into consideration his initial engagement w.e.f. 11th September, 1998. The period of break in service between 11th May, 2000 to 31st August, 2001 is condoned. This period shall be counted for all intents and purposes, including seniority. Needful be done within a period of eight weeks from today. No costs. (Rajiv Sharma) Judge April 21, 2010. (bhupender) - 7 - - 8 - `