Himachal Pradesh High Court
Sant Ram And Others vs High Court Of Himachal Pradesh on 6 May, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWP No. 1026 of 2015 a/w CWP No. 745 of 2015 Judgment reserved on: 19.4.2016 Date of Decision : May 6, 2016.
1. CWP No. 1026 of 2015 Sant Ram and others ...Petitioners of Versus High Court of Himachal Pradesh. . ...Respondent. For the petitioners : Mr. M.L.Sharma, Advocate.
For the respondent
rt : Mr. K.D.Sood, Senior Advocate, with
Ms. Sunita Sharma, Advocate.
2. CWP No. 745 of 2015
Himanshu Thakur and others ...Petitioners
Versus
State of Himachal Pradesh and others . ...Respondents.
For the petitioners : Ms. Ranjana Parmar, Senior Advocate,
with Ms. Komal Kumari, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General
with Mr. Anup Rattan, Mr. Romesh
Verma, Additional Advocate Generals
and Mr. Kush Sharma, Deputy
Advocate General, for respondents No.
1 and 2.
Mr. K.D.Sood, Senior Advocate, with
Ms. Sunita Sharma, Advocate, for
respondent No.3.
____________________________________________________________ Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ? 1Yes Tarlok Singh Chauhan, Judge The seminal issue that emanates for consideration is as to whether the employees appointed through out-source basis can claim 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 2regularisation of their services in the department utilizing their services .
or in the alternative claim preferential right of consideration for the post by making necessary amendments in the recruitment rules, that too, only on the sheer strength of their having worked for considerable time in such department.
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2. Since common question of law and facts arise in these writ petitions, therefore, both these petitions were taken up together for
3. rt hearing and are being disposed of by common judgment.
For the sake of convenience and also taking into consideration that the pleadings are more elaborate in CWP No. 745 of 2015, we treated it as the lead case.
4. The petitioners are working as System Officers and System Assistants in the different Courts throughout the State of Himachal Pradesh. They have sought quashing of advertisement issued on 10.12.2014 calling for appointment to the posts of Computer Programmer and Assistant Programmer and have further sought modification of the service Rules for the posts of Computer Programmer and Assistant Programmer seeking incorporation of a provision therein for absorption of the existing incumbents holding the posts of System Officers and System Assistants in consonance with the provisions made in the "National Policy and Action Plan for Implementation of Information Technology in the Indian Judiciary prepared by E-Committee of the Hon'ble Supreme Court of India.
5. The facts, in brief, may be noticed. The Hon'ble Supreme Court with a view to computerize the Indian Judiciary, constituted E-Committee and on its recommendation framed the National Policy on ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 3 1.8.2005. DOEACC (for short 'Society') was made the Nodal Agency.
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As per the policy decision, cadre of Trouble Shooters (technical manpower) for different Courts was to be created and in terms of the National Policy, posts were to be created for the conversion of Courts into E-Courts. The recommendation of the E-Committee was accepted.
of On account of non-availability of Society in the State of Himachal Pradesh, the Department of Information Technology, vide rt communication dated 2.9.2008 empanelled M/s New Horizons India Ltd. as the agency for providing technical manpower for the High Court and District Courts.
6. The Society issued advertisement to fill up 22 vacancies, pursuant to which petitioner No.3 Rohit Singh was appointed as System Assistant on contract basis vide appointment letter dated 27.9.2011. Thereafter, the appointments were made against the posts which were created for the purposes of conversion of the Courts through E-Courts in August, 2013. The National Institute of Electronics and Information Technology (for short 'Institute') advertised three posts of System Officer and one post of System Assistant in August, 2013, pursuant to which, some of the other petitioners were selected by the selection committee.
7. Instructions were thereafter issued by the Hon'ble Judge-
Incharge of the E-Committee to all the High Courts and Subordinate Courts to create their own cadre of technical manpower. In furtherance thereto, the High Court informed the concerned authorities i.e. DOEACC Society and New Horizon India Ltd. that henceforth the services of the technical manpower would be extended upto 31.3.2015 ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 4 and the out source workers would now work under the control of the .
High Court. It was also mentioned in the communication that NIC would no longer be the nodal agency. A decision was also taken that it would be the High Court which would now be paying salary of the deployed technical manpower i.e. the petitioners.
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8. On 19.7.2014, an office order was issued by the High Court, wherein it was decided and ordered that after 1.4.2014, the rt control of technical manpower working in the computerized project, would be under the High Court and District and Sessions Judges of the respective Courts. In the meanwhile, the High Court in terms of the directions issued by the Hon'ble Supreme Court, requested the Government to create vacancies for the purpose of computerization of the entire system. After prolonged correspondence, 37 posts of System Officers/System Assistants and one Senior System Officer were proposed to be created and finally the Government agreed to create only one post of Computer Programmer and 12 posts of Assistant Programmers, which were duly advertised on 10.12.2014 and the same has been assailed by the petitioners on number of grounds taken in the writ petitions.
9. The respondents No. 1 and 2 i.e. Principal Secretary (Personnel) and Secretary (Home) in their joint reply have submitted that proposal was received from the High Court for creation of 37 posts of different categories which was examined by the Secretary (Home) in consultation with the I.T. and Finance Departments and after obtaining approval of the competent authority, one post of Computer Programmer was created for High Court Registry and 12 posts of ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 5 Assistant Programmers, were created for the registry of the High Court .
at the rate of one each for District and Sessions Divisions in Himachal Pradesh. It was further averred that instead of the posts of Senior System Officer, System Officer and System Assistants, the posts of Computer Programmer and Assistant Programmers were created for of the reason that the State does not have equivalent posts in Government Departments. It was after consulting the Department of rt Information Technology and Finance Department that the posts of Computer Programmer and Assistant Programmers were created.
10. The respondent No.3 i.e. High Court in its detailed reply has categorically averred that the advertisements on the basis of which the petitioners came to be appointed were never issued by the High Court and the same were either issued by the Society or their successor i.e. Institute. Even the appointments on the basis of these advertisements were never made by respondent No.3. The terms and conditions of the appointments of the petitioners were absolutely clear whereby the petitioners were appointed purely on temporary basis against the assigned project and in case the project was abandoned/dis-continued due to any reason for the said period, the contractual employment was to be terminated at 15 days notice. It was further made clear that the contractual employment would not in any case amount to any employment obligation on regular basis, in future, in the National Institute of Electronics and Information Technology Centre or the department.
11. It was further averred that on 4.4.2011 an e-mail communication was received from Sh. R.K. Kaul, Technical Director, ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 6 N.I.C., New Delhi, whereby he had specifically mentioned that the High .
Court may opt for the following options:
"(i) The High Courts may select a local vendor for providing technical manpower.
(ii) The High Court of Himachal Pradesh may retain the existing vendor empanelled with NIC for providing technical manpower in both the cases.
In both cases, the responsibility of vendor management, execution of and payment would lie with the High Courts."
12. The matter was accordingly placed before the then Hon'ble Judges Committee for computerization and vide orders dated rt 21.6.2011, it was resolved as under:
"Existing employees of New Harizon be continued. Fresh deployment be made by the DOEACC".
13. Insofar as the letters received from Hon'ble Supreme Court are concerned, it is specifically mentioned that since NIC was not to provide manpower assistance in the High Court as well as Subordinate Courts after 1.4.2014, therefore, it was decided to extend the services of technical manpower till 31.3.2015 directly under the control of High Court and not through the NIC empanelled vendors.
This was done with a view to ensure timely payment of remunerations to such deployed technical manpower and both the vendors were informed accordingly. However, comprehensive guidelines were thereafter framed on 6.6.2014 and even in these guidelines, it was made clear in para 7 that the selection of the petitioners was purely on contractual in nature and would not confer any right for regularisation or permanent absorption.
14. Insofar as the qualification prescribed is concerned, it is specifically stated that it is within the domain of the competent authority to fix the requisite qualification, age etc. and, therefore, no exception to ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 7 the advertisement or the eligibility prescribed therein can be taken by .
the petitioners.
We have heard the learned counsel for the parties and gone through the records of the case carefully.
15. Ms. Ranjana Parmar, Senior Advocate assisted by Ms. of Komal Kumari, Advocate and Mr. M.L. Sharma, Advocate, learned counsel for the petitioners have raised the following pleas:
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(i) That the petitioners had legitimate expectation of being absorbed on the posts now advertised by the respondents;
(ii) That the petitioners otherwise have a right of consideration for regularisation having worked in the Subordinate Courts and the High Court for more than five years and;
(iii) That in alternative, the petitioners had preferential right of being appointed and, therefore, the provision to this effect ought to have been made in the Rules and in absence of such provision, the Rules be declared ultra vires.
16. On the other hand, Mr. K.D.Sood, Senior Advocate, assisted by Ms. Sunita Sharma, Advocate, learned counsel for the respondent has vehemently argued that the petitioners being back door entrants cannot claim any right of consideration much less regularisation. The petitioners being back door entries have to leave from the same door and have no locus standi to even assail the advertisement or qualifications prescribed therein.
Legitimate expectation:
17. The doctrine of legitimate expectation has been described in Halsbury's Laws of England, 4th Edition, in the following words:
"81. Legitimate expectations. - A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 8 representation or promise made by the authority, including an implied representation, or from consistent past practice."
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18. The same principle has been followed even by the Courts in India. Reference in this connection may be usefully made to the judgment of the Hon'ble Supreme Court in the case of Navjyoti Housing Cooperative Group Housing Society and others vs. Union of of India, 1992 (4) SCC 477, Supreme Court Advocate-on-Record Association and others vs. Union of India 1993 (4) SCC 441, Food rt Corporation of India vs. Kamdhenu Cattle Feed Industries 1993 (1) SCC 71 and Union Territory of Chandigarh vs. Dilbagh Singh and others 1993 (1) SCC 154.
19. In Madras City Wine Merchants' Association and another vs. State of Tamil Nadu and another (1994) 5 SCC 509 the Hon'ble Supreme Court held that the legitimate expectation may arise:-
"(a) if there is an express promise given by a public authority; or
(b) because of the existence of a regular practice which the claimant can reasonably expect to continue;
(c ) such an expectation must be reasonable.
However, if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise."
20. In Ram Pravesh Singh and others vs. State of Bihar and others (2006) 8 SCC 381, the question as to what is the legitimate expectation was directly in issue before the Hon'ble Supreme Court and it was held as under:
"15. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term 'established practice' refers to a regular, consistent predictable and ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 9 certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and .
valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as of a consequence of the promise made, or practice established. In short, a person can be said to have a 'legitimate expectation' of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent rt past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'. It may only entitle an expectant : (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, courts may grant a direction requiring the Authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bonafide reason given by the decision-maker, may be sufficient to negative the 'legitimate expectation'. The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly."
21. In Secretary, State of Karnataka and other vs. Umadevi (3) and others (2006) 4 SCC 1, a Constitution Bench of the Hon'ble Supreme Court referred to the circumstances in which the doctrine of legitimate expectation can be invoked:
::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 10"The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or .
advantage which either (i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision maker that they will not be withdrawn without giving of him first an opportunity of advancing reasons for contending that they should not be withdrawn."
22. In Confederation of Ex-Servicemen Associations and rt others vs. Union of India and others (2006) 8 SCC 399, another Constitution Bench of the Hon'ble Supreme Court referring to the doctrine of legitimate expectation held as under:
"No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to 'judicial review'. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue."
23. The same reiteration of law is found in a recent judgment of the Hon'ble Supreme in Union of India and another vs. Lt. Col. P. K. Choudhary and others AIR 2016 SC 966 wherein it was held as under:
"42. In Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71: (AIR 1993 SC 1601) one of the earlier cases on the subject this Court considered the question whether Legitimate Expectation of a citizen can by itself create a distinct enforceable right. Rejecting the argument that a mere reasonable and legitimate ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 11 expectation can give rise to a distinct and enforceable right, this Court observed:
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"8.The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is rt reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
(emphasis supplied)
43. To the same effect is the decision of this Court in Union of India v. Hindustan Development Corporation and Ors. (1993) 3 SCC 499, where this Court summed up the legal position as under:
" 28..... For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 12 into a right and therefore it does not amount to a right in the conventional sense."
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33. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken.
of The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an rt overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 13 quashed. If that be so then what should be the relief is again a matter which depends on several factors."
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(emphasis supplied)
44. Reference may also be made to the decision of this Court in Punjab Communications Ltd. v. Union of India and Ors. (1999) 4 SCC 727, where this Court held that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness." The choice of policy is for the of decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have rt made. A claim based merely on legitimate expectation without anything more cannot ipso facto give a right. Similarly in Dr.Chanchal Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485, this Court declined relief on the plea of legitimate expectation on the ground that the appellants had not shown as to how any act was done by the authorities which created an impression that the conditions attached to the original appointment order were waived. No legitimate expectation could be, declared this Court, claimed on such unfounded impression especially when it was not clear as to who and what authority had created any such impression. The decisions of this Court in Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381, Sethi Auto Service Station and Anr. v. Delhi Development Authority and Ors. (2009) 1 SCC 180, Confederation of Ex-servicemen Association v. Union of India (2006) 8 SCC 399, and State of Bihar and Ors. v. Kalyanpur Cements Ltd. (2010) 3 SCC 274, reiterate the legal position stated in the decisions earlier mentioned. In Monnet Ispat and Energy Ltd. v. Union of India and Ors. (2012) 11 SCC 1, this Court reviewed the case law on the subject and quoted with approval the following passage in Attorney General for New South Wales (1990) 64 Aus LJR 327:
" To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords law."::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 14
24. It would be evident from the aforesaid exposition of law .
that the doctrine of legitimate expectation cannot be applied in cases of invalid expectation. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical of or invalid cannot be a legitimate expectation. For the application of doctrine of legitimate expectation, representation or promise should be rt made by an authority, a person unconnected with the authority, who had no previous dealing and who has not entered into any transactions or negotiations with the authority cannot invoke doctrine of legitimate expectation. Therefore, a person who bases his claim on the doctrine of legitimate expectation has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. (See: State of Uttar Pradesh and others vs. United Bank of India and others (2016) 2 SCC 757).
25. It can further be discernible from the aforesaid exposition of law that a case of legitimate expectation would arise when a body representation or by past practice aroused expectation which it would be within the power to fulfill. The protection is limited to that extent and judicial review can be within those limits. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 15 policy, even by change of old policy, the Courts cannot interfere with a .
decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. It is more than settled that where there is no promise, the doctrine of legitimate expectation does not apply.
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26. Bearing in mind the aforesaid principles it would be noticed that there is practically no material placed by the petitioners on rt record which may even remotely indicate that any promise was made or any assurance at any point of time was ever held out to them by the High Court for their absorption in the regular cadres. At the cost of repetition, it needs to be emphasized that the petitioners are in service only because of the interim orders passed by the High Court.
27. The appointment of the petitioners was not made by the High Court or any of the Subordinate Court(s) and that apart, their conditions of appointment clearly envisaged cessation of employment at the end of fixed tenure. On the contrary, the appointment of the petitioners was made either by the Society or the Institute or M/s New Horizons India Ltd. and the High Court has simply decided to extend the services of the out sourced technical manpower till 31.3.2015.
28. Moreover, it was in terms of the comprehensive guidelines framed on 6.6.2014 that the petitioners themselves gave undertakings to abide by the guidelines wherein in para 7 it was clearly stipulated that the selection was purely on contractual in nature and would not confer any right or permanent absorption.
Thus, there was no occasion whereby the petitioners could legitimately have expected that their services would be taken over or ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 16 regularized or relaxation of any kind would be extended to them at the .
time when the posts would be filled up on regular basis by the High Court.
Right of regularisation:
29. Adverting to the second submission regarding right of of regularisation of the services of the petitioners, as noticed earlier that the appointment of the petitioners has not been made by the rt Subordinate or the High Court, but has been made by the Society or the Institute or M/s New Horizons India Ltd. Apart from the above, it would also be noticed that the appointments of the petitioners were contrary to the provisions of Articles 14 and 16 of the Constitution. No doubt, the petitioners were appointed pursuant to advertisements issued in the newspaper but that in itself cannot be a sufficient compliance of Articles 14 and 16 of the Constitution of India.
30. The copy of advertisement issued by the Society (Annexure P-3) reads thus:
"DOEACC Society, Chandigarh Centre Branch Office, Shimla.
INTERVIEW Applications are invited on the prescribed format by the DOEACC Society, Chandigarh Centre, Branch Office, Shimla, for filling up the vacant posts of System Assistants in the High Court of Himachal Pradesh and in District Courts at Bilaspur, Chamba, Hamirpur, Dharamshala, Kullu, Mandi, Nahan, Rampur, Shimla, Solan and Una purely on contract basis for specific period. The criteria for filling up such vacant posts are given hereunder:-
Essential Government recognized diploma from ITI or equivalent Academic after 10th standard.
Qualifications Age limit Not exceeding 30 years of age as on 1st August, 2011. Date of interview 20th August, 2011 at 10.00 a.m. Venue of In the O/o Registrar Vigilance-cum-CPC, High Court of interview Himachal Pradesh, Shimla - 171 001.::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 17
The desirous candidates may either download the application form from our website: http:#doeaccchd.edu.in or collect the same in person from the office .
during office hours i.e. 10.00 a.m. to 5.00 p.m. The interested candidates possessing requisite qualification etc. are required to submit their application duly filled in all respect, accompanied by the attested copies of certificates and a bank draft for Rs.350/- drawn in favour of Director, DOEACC Chandigarh Centre, Branch Office, Shimla and payable at Shimla being registration fee which should reach the office on or before the 16th August, of 2011. The selection of candidates shall strictly be made on the basis of their performance in viva-voce scheduled to be held on 20th August, 2011. The list of short listed candidates for the interview will be displayed on our website on 17.8.2011.
rt For further details please visit our website: http:#doeaccchd.edu.in or contact no. 0177-2650613, 2804216.
Branch Manager."
Whereas, the copy of advertisement dated 2.8.2013 issued by the Institute (Annexure P-7) reads thus:
"National Institute of Electronics and Information Technology, Chandigarh, Extension Centre, Shimla. (An autonomous Scientific Society under Deptt. of Electronics and Information Technology, Govt. of India). Hotel Cedar - Wood Building, Lower Jakhoo, Shimla (H.P.) Website:- http:#/nielitchd.in.
Telephone 0177-2650613.
WALK-IN-INTERVIEW National Institute of Electronics and Information Technology, Chandigarh, Extension Centre, Shimla requires the System Officers and System Assistant on contract basis, for being deployed at the following District Courts in Himachal Pradesh.
1. System Officers each at District Courts, Solan, Kinnaur at Rampur and Kullu.
2. System Assistant at District Courts, Sirmaur at Nahan. Vacant Post(s) 1 post of System Officer at District Courts, Solan.
1 post of System Officer at District Court, Kinnaur at Rampur.
1 post of System Officer at District Court, Kullu. 1 post of System Assistant at District Court, Sirmaur at Nahan.
Date and time of 3rd August, 2013 from 10.30 a.m. to 1.30 p.m. interview Venue Office Chamber of Registrar Vigilance, High Court of Himachal Pradesh, Shimla - 171 001.
Interested candidates may download the application form from our Website:- hppt:#www.nielitchd.in. The candidates should come with duly filled form along with the attested copies of certificates and the ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 18 registration fee of Rs.500/- to be deposited through bank draft in favour of Director, NIELIT, Chandigarh, payable at Shimla. More .
details are available on our website:- http:#www.nielitchd.in.
Ph.No. 0177-2650613 or 0177-2804216 BRANCH MANAGER."
31. It would be evident from the aforesaid advertisement that it was the Society and the Institute and not the Courts which had issued of the advertisements and therefore the appointments that were to be made on contract basis were to be made by and for the authorities rt issuing advertisements themselves and not by or for the Court. It was only the staff appointed on contract basis by these authorities that in turn was to be deployed in the Court.
32. Further, the terms and conditions as stipulated in the advertisement whereby appointments that too on contract basis for being deployed in various Courts obviously dissociated the best talent from coming forward and applying for the post in question because the posts never pertained to the Courts but were for and on behalf of the Society or the Institute. In such circumstances, the mere continuance in service or extending the period of appointment of the petitioners, that too, by the service provider cannot in itself confer any right upon them for regularisation or else this would amount to perpetuating an illegality.
33. Though, there is plethora of law available on the subject of regularisation, however, we would only like to refer to certain recent judgments of the Hon'ble Supreme Court.
34. The principles to be adopted in the matter of public appointments have been formulated by the Hon'ble Supreme Court in ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 19 M.P. State Coop. Bank Ltd., Bhopal vs. Nanuram Yadav & Ors., .
(2007) 8 SCC 264 as under: ( SCC pp. 274-75, para 24) "(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
of (2) Regularisation cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. rt Such illegality cannot be cured by taking recourse to regularisation. (4) Those who come by back-door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
35. In State of Bihar versus Upendra Narayan Singh and others (2009) 5 SCC 65, the Hon'ble Supreme Court took serious note of the mode and manner in which the appointments to the lowest strata of the civil services were being made by largely misusing, abusing and violating the relevant rules. The Hon'ble Court also took notice of favouritism and nepotism in matters of appointment negating of the equality clause enshrined in Article 16 of the Constitution. It is apt to reproduce the following observations:
::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 20"44. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the .
power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution.
of
45. Thousands of cases have been filed in the Courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the rt 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by the virus of spoil system in different dimensions and selections have been made for considerations other than merit.
46. Unfortunately, some orders passed by the Courts have also contributed to the spread of spoil system in this country. The judgments of 1980s and early 1990s show that this Court gave expanded meaning to the equality clause enshrined in Articles 14 and 16 and issued directions for treating temporary/ad hoc/daily wage employees at par with regular employees in the matter of payment of salaries etc. The schemes framed by the Governments and public bodies for regularization of illegally appointed temporary/ad hoc/daily wage/casual employees got approval of the Courts. In some cases, the Courts also directed the State and its instrumentalities/agencies to frame schemes for regularization of the services of such employees."
36. In State of Rajasthan and others vs. Daya Lal and others (2011) 2 SCC 429, the Hon'ble Supreme Court after considering the scope of regularisation of irregular or part-time appointments in all possible eventualities laid down the following principles in para 12 of the judgment, which reads thus:
::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 21"12. We may at the outset refer to the following well settled principles .
relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular of recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and rt courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While 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, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post.
Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 22 government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek .
parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
(See : Secretary, State of Karnataka vs. Uma Devi (3) 2006 (4) SCC 1, M. Raja vs. CEERI Educational Society, Pilani - 2006 (12) SCC 636, S.C. Chandra vs. State of Jharkhand - 2007 (8) SCC 279, Kurukshetra Central of Co-operative Bank Ltd vs. Mehar Chand - 2007 (15) SCC 680, and Official Liquidator vs. Dayanand - 2008 (10 SCC 1) ."
37. It is evident from the aforesaid exposition of law that this rt Court while exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance of the petitioners, unless their appointments are in pursuance of a regular recruitment in an open competitive process, that too, against sanctioned vacant posts.
38. The equality clause contained in Articles 14 and 16 has to be scrupulously followed especially when one of the elements in the process of selection is illegal and goes to the root of the process and in such circumstances, the services cannot be ordered to be regularized since these appointments itself are contrary to the constitutional scheme.
39. Therefore, the mere fact that the petitioners may have continued that too in service of the agency which appointed them and have been simply deployed in the various Courts by these agencies and are still further continuing under cover of interim orders of this Court would not confer upon them any right to be absorbed into service, as such service would be 'litigious employment'. The contractual appointment rendered for number of years in such circumstances would not entitle the petitioners to claim regularisation.
::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 23Even sympathy and sentiments cannot be a ground for passing an .
order of regularisation in the absence of a legal right.
40. Apart from the above, insofar as the appointments in judicial institutions are concerned, the same must be made on the touchstone of equality of opportunity enshrined in Article 14 read with of Article 16 of the Constitution of India and under no circumstance any appointment which is illegal should be saved for the reason that the rt grievance of the people at large is that complete darkness in the light house has to be removed. The judiciary which raises a finger towards actions of every other wing of the society cannot afford to have this kind of accusations against itself.
41. In Renu and others versus District and Sessions Judge, Tis Hazari Courts, Delhi and another (2014) 14 SCC 50, the Hon'ble Supreme Court held that the appointments of the employees in the Court including Class IV employees should be made on touchstone of equality of opportunity which is cornerstone of Constitution as would be clear from the following observations:-
"4. In view of the aforesaid submissions, we do not think it necessary to peruse the record in order to gauge the amount of irregularities or illegalities. Our basic concern is that the appointments in judicial institutions must be made on the touchstone of equality of opportunity enshrined in Article 14 read with Article 16 of the Constitution of India and under no circumstance any appointment which is illegal should be saved for the reason that the grievance of the people at large is that complete darkness in the light house has to be removed. The judiciary which raises a finger towards actions of every other wing of the society cannot afford to have this kind of accusations against itself.
6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution.
8. As Article 14 is an integral part of our system, each and every state action is to be tested on the touchstone of equality. Any ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 24 appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be .
sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors. etc.etc., AIR 1992 SC 2130; Prabhat Kumar Sharma & Ors. v. State of U.P. & Ors., AIR 1996 SC 2638; J.A.S. Inter College, Khurja, U.P. & Ors. v. State of U.P. & Ors., AIR 1996 SC 3420; M.P. of Housing Board & Anr. v. Manoj Shrivastava, AIR 2006 SC 3499; M.P. State Agro Industries Development Corporation Ltd. & Anr. v. S.C. Pandey, (2006) 2 SCC 716; and State of Madhya Pradesh & Ors. v. Ku. Sandhya Tomar & Anr., JT 2013 (9) SC 139.
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42. It is amply clear from the aforesaid enunciation of law that the appointments made without following proper procedure would amount to breach of Articles 14 and 16 of the Constitution of India. It is more than settled that regularisation cannot be a mode of appointment and this Court while exercising jurisdiction under Article 226 of the Constitution, cannot exercise its jurisdiction on misplaced sympathy.
43. Since the appointments of the petitioners is not consistent with Articles 14 and 16 of the Constitution of India and further that the petitioners were in fact never appointed by this Court and further in view of the aforesaid detailed discussion the petitioners therefore cannot claim regularisation of their services.
44. The matter can be looked into from a different angle. It is more than settled that for entitlement for regularisation, master and servant relationship is a pre-requisite which is conspicuously absent in the instant case.
Preferential right of appointment and modification of rules:
45. It is vehemently argued by the petitioners that they have long standing experience and thus have preferential right of being ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 25 considered for appointment and, therefore, there should have been .
suitable modification in the Rules akin to the Rules framed by the certain other Courts giving preference to their claim in matters of appointment.
46. Even this submission is equally without merit for the of simple reason that firstly the petitioners were never appointed by this Court and secondly the creation and abolition of posts, formation and rt structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer. Although, the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review. However, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides. (Refer: Official Liquidator vs. Dayanand and others (2008) 10 SCC 1, para 59).
47. It is otherwise more than settled that the question relating to constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service pertain to the field of policy and within the exclusive discretion ::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 26 and jurisdiction of the State, though obviously subject to certain .
limitations or restrictions envisaged in the Constitution and, therefore, it is not for the statutory tribunals or the Courts at any rate to direct the Government to have a particular method of recruitment or eligibility criteria for further promotion as held by the Hon'ble Supreme Court in of P.U.Joshi and others vs. Accountant General, Ahmedabad and others (2003) 2 SCC 632 as under:
rt "10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate , to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate.
Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
Accordingly, all three points raised in these petitions are answered against the petitioners.
::: Downloaded on - 15/04/2017 20:17:22 :::HCHP 2748. Consequently, there is no merit in these petitions and the .
same are accordingly dismissed, so also the pending application(s), leaving the parties to bear their own costs.
( Mansoor Ahmad Mir )
Chief Justice
of
May 6, 2016 ( Tarlok Singh Chauhan ),
(GR) Judge.
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