Himachal Pradesh High Court
Som Dutt And Others vs State Of Himachal Pradesh & Others on 12 September, 2025
[ 2025:HHC:32991 ] IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.2223 of 2019 Reserved on: 06.06.2025 Announced on: 12.09.2025 ____________________________________________________________ .
Som Dutt and others ...Petitioners Versus State of Himachal Pradesh & others ...Respondents Coram:
Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? Yes.
For the petitioners:
For the respondents:
r to Mr. Rajiv Rai, Advocate.
Ms. Priyanka Chauhan, Deputy Advocate General.
Ranjan Sharma, Judge Petitioners, Som Dutt, and eleven others Trained Graduate Teachers, have come up before this Court, seeking the following relief(s):-
"I. That the Rule 4.15-A (II), 15-A(Vii)
(c), 15-A (Vii) (g), 15-A (vii) (h) of the Recruitment and Promotion rule dated 22.10.2009 vide Annexure P/2 framed for the appointment of Trained Graduate Teachers on contract basis may be declared Ultra Virus being the same opposed to the public policy and further being violative of Article 14 of the Constitution of India.
II. That the terms of format contract/ agreements vide Annexure P/1 entered by the respondents with the petitioners 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 26/09/2025 21:28:21 :::CIS-2- [ 2025:HHC:32991 ] under the pressure of circumstances where the petitioners were on weaker footing and had unequal bargaining power may be declared unfair, unreasonable and against the public interest.
.
II(A). That the Hon'ble Court may kindly be pleased to direct the respondents to consider the appointment of the petitioners on regular basis from their initial date of appointment instead of contract appointment along with all consequential benefits with interest."
III. That the Rule 2 (1) of the Himachal Pradesh Civil Services P/2) (Revised Pay) Rules, 2009 may kindly be declared null and void same being the violative of Article 14 of the r Constitution of India.
IV. That the respondents may kindly be directed to remove the disparity in the pay scale of the petitioners who are contract appointees with respect to the regular appointees by applying the principle of Equal Pay for the Equal Work.
V. That the respondents may kindly further be directed to grant the equal Pay and Allowances to the petitioners from the date of their initial appointments along with interest @ 18% per annum as being paid by the respondents to their regular appointed Trained Graduate Teachers.
VI. That the respondents may further be directed to calculate and pay the arrears to the petitioners along with interest @ 18% per annum from the date of their initial appointment by applying the principle of Equal Pay for the Equal Work."
::: Downloaded on - 26/09/2025 21:28:21 :::CIS-3- [ 2025:HHC:32991 ]
2. Learned Counsel for the petitioners at the very outset, submits that so far as Prayer no II (A) is concerned though the State Authorities have stated .
in the Instructions dated 13.09.2024 [Taken on record] that the above benefits stands extended to the petitioners No. 3, 4, 6 and 12 by giving them the benefit deemed appointment from date of initial contractual appointment in terms of the office order dated 16.06.2024, but accruable have not been released to them, as yet. Learned r financial benefits Counsel submits that so far as the petitioners 1, 2, 5, 7 & 11 are concerned they have not been granted the benefits as extended to the petitioners no(s) 3, 4, 6 and 12, despite being similarly placed. Learned Counsel submits that so far as petitioners no(s) 8 to 10 are concerned, they may be granted the liberty to claim relief, by making representation to concerned authority. Prayer being innocuous, is not opposed by Learned State Counsel and therefore, liberty as prayed for, is granted.
2(i). Regarding Prayer No. IV, claiming Equal Pay for Equal Work is concerned, Learned Counsel ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
-4- [ 2025:HHC:32991 ] for petitioner states that he may be permitted to file an appropriate representation before Competent Authority for asserting such claim. Learned State .
Counsel does not oppose the same also. Accordingly, this Court leaves it open to the petitioners to raise a claim regarding Equal Pay for Equal Work, as in Prayer No. IV with the Competent Authority expeditiously and not later than one month from today [Statement taken on Record]. It is made clear that in case, any representation is made, regarding Prayer No. IV, the same shall also be examined by Competent Authority, inaccordance with law within six weeks from date of such representation.
FACTUAL MATRIX:
3. Grievance of the petitioners is that the State Authorities notified Himachal Pradesh Education Department, Class-III (School and Inspection Cadre) Services Rules, 1973 [referred to as Rules of 1973], for various categories of posts, including the post of Trained Graduate Teachers [category of petitioners herein], expressly providing regular nomenclature of the post of Trained Graduate Teacher, carrying a ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
-5- [ 2025:HHC:32991 ] regular pay scale, with benefit of service countable for seniority from the date of initial appointment as regular incumbent and the benefit of such service .
for pension and other retiral benefits as admissible to the regular employees of the State Government.
It is submitted that by acting totally contrary to and dehors the Rules of 1973, the State Authorities sent a requisition to the Recruiting Agency i.e. Himachal Pradesh to Subordinate Service Board at Hamirpur for filling the posts of TGT on r Selection contract basis. In response to aforesaid requisition, Himachal Pradesh State Subordinate Service Selection Board, Hamirpur issued advertisement on 28.08.2008 and subsequent advertisements for filling the post of TGTs on Contract Basis, despite the fact that said action was not in consonance with the Rules of 1973.
3(i). It is submitted that the State Authorities introduced and recognized contractual nomenclature of recruitments in its Service Rules, by issuing the Himachal Pradesh Elementary Education Department, Trained Graduate Techer [Class-III (Non-Gazetted) ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
-6- [ 2025:HHC:32991 ] Recruitment and Promotion Rules, 2009 [referred to as the New Rules of 2009, Annexure P-2], after repealing the Service Rules of 1973. It is the case .
of the petitioners that due to weak bargaining power, they were left with no option than to participate in the recruitment process for post of TGT on contract basis. Pursuant to their participation in the recruitment process, the petitioners no 4, 6 and 7 were appointed as TGTs in November, 2008 and petitioners 1, 2, 3, 5 were appointed as TGT's in August, 2009 whereas the petitioners No. 8 to 10 were appointed as TGT's in August, 2012, which is borne out from the pleadings and the description of incumbency of the petitioners in memo of parties.
3(ii). In the above backdrop, it is submitted that the contractual nomenclature of recruitment for post of Trained Graduate teachers was recognized and incorporated in Service Rules on 22/26.02.2009 and the selection of the petitioners had commenced in the year 2008 and 2008 i.e. prior to issuance of the New Service Rules and that too under the Service Rules of 1973, which governed the field at ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
-7- [ 2025:HHC:32991 ] the relevant time and therefore, the petitioners are entitled to be treated as Trained Graduate Teachers on regular basis from the date of initial appointment .
on contract basis during the years 2008 and 2009 with regular status, on regular post, in regular pay scales, inaccordance with the Service Rules of 1973. It is averred the that the deprivation of regular status and regular pay scales to petitioner(s) from date of their initial appointment in 2008-2009 [in case of petitioners No. 1 to 7 & 11 and 12] has deprived the petitioners of higher pay scales and higher pay fixation and other service benefits including ACP benefits from an earlier date and the right to receive higher retiral benefits also.
STAND OF STATE AUTHORITIES IN INSTANT PROCEEDINGS:
4. Upon issuance of notice, State Authorities-
Respondents filed a reply to the writ petition. In Para-1 of the Preliminary Submissions admits that the petitioners were appointed as TGTs during the period between 2008-2009 on contract basis, on fixed emoluments. It is admitted in Reply-Affidavit that Recruitment and Promotion Rules were notified ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
-8- [ 2025:HHC:32991 ] on 22/26.10.2009, introducing and recognizing the contractual mode of recruitment in its Service Rules.
In Para-3 of the Reply-Affidavit, the respondents .
have stated that State Government took a policy decision in the year 2004 for filling up all vacancies on contract basis and it is in this backdrop, that the petitioners were appointed as TGT's on contract basis. In this background, the prayer was made petition.
r to by the State Authorities for dismissal of the instant
5. Instant writ petition was transferred to the Learned State Administrative Tribunal but after abolition of Administrative Tribunal, the matter was re-transferred to this Court and was re-numbered as CWPOA No.2223 of 2019. During the pendency of instant petition, an application CMP (T) No 601 of 2024 was filed by petitioners, seeking amendment in prayer clause, which was allowed by this Court on 09.09.2024, with direction to State Authorities to file reply to amended petition. Though no reply was filed to Amended Petition but upon listing of the matter, Learned State Counsel furnished has the Instructions ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
-9- [ 2025:HHC:32991 ] dated 13.09.2024, reads as under:-
"No. EDN-H(18)LC-1603/24-SMR Government of Himachal Pradesh Directorate of Elementary Education. Dated: Shimla-171001, the 13, September, 2024.
.
To Ld. Advocate General, H.P. High Court, Shimla-1.
Subject: CWPOA No. 2223/2019 in CWP No. 2270/2013 titled as Som Dutt & others V/S State of IH.P. Sir, I have the honor to request your good self that the instant petition was listed on 09.09.2024 when the Hon'ble Court passed the following order:
Reply to the amended petition, if any, be filed, within a period of seven days, from today. List on 16.09.2024.
In this regard, it is submitted that r by way of filing present writ petition, the petitioners have claimed the relief to the extent that they may be offered regular appointment from the date of their initial appointment on contract basis. This Hon'ble High Court has already settled the similar issue while deciding LPA No. 21/2013 titled as State of H.P. & others Vs Ravinder Kumar. The case of the petitioners is same and similar to the said LPA. Moreover, it is also pertinent to mention here that the benefit of regularization from initial date of contract appointment has already been extended in favour of the petitioners appearing at Sr. No. 3, 4, 6 & 12 by the respondent department vide order dated, 16.06.2024 (copy enclosed) in compliance to the judgments passed by the Hon'ble Court in CWP No. 223/2024 titled as Ram Pal & others, CWP No. 228/2024 titled as Raj Kumar & others, CWP No. 633/ 2024 titled as Ajay Soni & Others Vs State of H.P. by the respondent department and similar benefits will be extended to the rest of the petitioners very shortly.
It is, therefore requested that the Hon'ble Court may kindly be apprised accordingly.
Yours faithfully, Sd/-::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 10 - [ 2025:HHC:32991 ]
DIRECTOR"
Based on Reply-Affidavit and Instructions, the Respondents have prayed for dismissing the writ petition.
.
6. Heard, Mr. Rajiv Rai, Learned Counsel for the petitioners and Ms. Priyanka Chauhan, Learned Deputy Advocate General, for the respondents.
7. Taking into account entirety of facts and circumstances and the material on record, this Court is of the considered view that claim of the petitioners for giving benefit of deemed regular appointment as Trained Graduate Teachers from the date of their respective initial contractual appointment, with all attending benefits accruing therefrom carries weight for the following reasons:
RECRUITMENT AS PER RULES IN FORCE ON DATE OF COMMENCEMENT OF SELECTION PROCESS:
7(i). An employer can resort to recruitment in accordance with the Service Rules in force on the date of commencement of selection process i.e. the date of issuance advertisement. An eligible candidate who applies for a post has a vested right of ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 11 - [ 2025:HHC:32991 ] being considered for selection in accordance with the Rules which were in force on the date of commencement of selection process i.e. issuance of .
advertisement, in terms of the mandate of the Honble Supreme Court in the case of N.T. Devin Katti and Others versus Karnataka Public Service Commission and others., 1990 (3) SCC 157, in the following terms :-
r to "11. There is yet another aspect of the question.
Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders.
Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalizes on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 12 - [ 2025:HHC:32991 ] pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to .
ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there r be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature."
BENEFITS ACCRUING UNDER SERVICE RULES OF 1973 WHEREUNDER SELECTION PROCESS COMMENCED CANNOT BE NEGATED:
7(ii). Notably, the recruitment-selection is to be regulated in accordance with Statutory Rules inforce ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 13 - [ 2025:HHC:32991 ] on the date of commencement of selection process.
Recruitment to public services must conform to the overarching principles of Articles 14 and 16 of the .
Constitution of India as well as the Statutory Rules notified under proviso to Article 309 of the Constitution of India. An employer, be it the State Government or its instrumentalities are legally bound to initiate and undertake the selection process by adhering to nomenclature of post(s), eligibility and the mode and manner of selection prescribed in the Statutory Service Rules. An employer cannot be permitted to deprive a person of a vested right of consideration for a post, inaccordance with the Statutory Rules. Upon consideration and resultant selection, even legitimate expectation for appointment under the extant statutory service rules cannot be permitted to be defeated or scuttled in an arbitrary and whimsical manner. State action has to be fair and not arbitrary. In the instant case, once Statutory Service Rules of 1973 prescribed that the post of Trained Graduate Teacher was to be filled up on regular basis, in regular pay scale, with annual increment, with seniority from the date of ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 14 - [ 2025:HHC:32991 ] initial appointment, benefit of leaves and counting of entire service from date of regular appointment for pension and other retiral benefits in the same .
manner in which the same was admissible to other regular employees appointed under the Service Rules of 1973, therefore, the State Authorities were bound to adhere to and extend all service legally accruable to the petitioners under the Statutory Service Rules of 1973 for all purposes. The State Authorities were under bounden obligation to commence the selection process, even in case of the petitioners for regular selection under the extant Service Rules of 1973 and not in defiance thereto, by resorting to recruitment of the petitioners on contractual basis. The action of the State in resorting to contract nomenclature of recruitment certainly amounts causing violence to the extant Statutory Service Rules of 1973, which expressly provided for regular nomenclature of the posts of TGT's and which governed the field at the relevant time i.e. on the date of commencement of selection process by issuing the advertisement in case of the petitioners in the year 2008-2009.::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 15 - [ 2025:HHC:32991 ] It is trite that once the Statutory Service Rules of 1973 occupied the field then, the said rules are binding on all concerned and the operation and .
applicability of these Rules can neither be curtailed nor restricted nor can such rules be deviated from in any manner so as to render the statutory rules otiose, ineffective and nugatory, as has been done by the Respondents in the instant case. As a sequel to this backdrop, any government decision or executive order which tends to or which leads to restricting, curtailing the operation, applicability, including nomenclature, mode, manner of recruitment prescribed under the Statutory Service Rules of 1973 cannot withstand the test of rationality, in instant case. The operation and applicability of the extant Service Rules of 1973 cannot be given a complete go-by by the State Authorities merely on the basis of administrative decision/action. An administrative action intending to change the nomenclature, eligibility or other conditions so as to make recruitment on contract basis cannot operate dehors the express stipulation in statutory rules, which ex-facie reveals ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 16 - [ 2025:HHC:32991 ] unreasonableness, unfairness, perversity and the ex-
facie arbitrariness in State action. The Respondents cannot be permitted to deprive the petitioners of .
the fundamental right of consideration and resultant legitimate expectation for being appointed as Trained Graduate Teachers under the Statutory Service Rules of 1973, issued under proviso to Article 309 of the Constitution of India on regular basis, in regular pay scale, with seniority from the date of initial appointment, leaves benefits, ACP benefits, including the benefit of entire service for retiral benefits and all other service benefits from day one ; as was admissible and was also granted to other regularly appointed TTG's in the past under the Service Rules of 1973. The rights acquired under the Service Rules of 1973 cannot be permitted to be deviated or curtailed till the date the extant statutory service rules occupied the field, and such an action has been deprecated by the Honble Supreme Court in N.T. Devin Katti & Ors versus Karnataka Public Service Commission & Ors. (1990) 3 SCC 157.
Once by virtue of the Statutory Rules of 1973 the ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 17 - [ 2025:HHC:32991 ] nomenclature of post(s) of Trained Graduate Teacher was regular, carrying regular pay scale, annual increments, seniority from date of initial appointment, .
leave, pension and other retiral benefits for qualifying service from date of initial-regular appointment and other service benefits as admissible to other regular employees then, the advertisement(s) issued by the State Authorities by resorting to contractual mode of appointment could neither be invoked nor can such mode of recruitment be permitted to be made applicable in case of petitioners so as to defeat the rights of petitioners for regular employment under the Statutory Rules. In addition, once the contractual recruitment-appointment of the petitioners was made after following the due process of law and this contractual appointment continued uninterruptedly and was followed by regular recruitment then, the contractual appointment of petitioners is substantive appointment for all purposes. The action of the State Authorities in making the contractual status as a camouflage so as to deprive the petitioners of regular service benefits which would have been admissible ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 18 - [ 2025:HHC:32991 ] to them as Trained Graduate Teacher from the date of their initial appointment under Statutory Rules of 1973 and such an inaction cannot stand .
the test of judicial scrutiny and the same is hereby declared illegal, arbitrary, and is violative of Articles 14, 16 and proviso to Article 309 of the Constitution of India.
IN CASE OF VARIANCE AND INCONSISTENCY IN CONDITIONS IN ADVERTISEMENT VIS-À-VIS RULES-THEN RULES TO PREVAIL:
7(iii). The selection process for filling the posts of Trained Graduate Teachers were issued in the year 2008 and 2009 and on the date of issuance of these advertisement, though the Service Rules of 1973 were in force, which provided for regular nomenclature of posts, in the regular pay scale, with benefit of such service for leave, pension and other service benefits but the State Authorities issued the Advertisement(s) for making recruitment on the posts of TGTs on contract basis dehors the Rules of 1973, resulting in violating the rights of the petitioners.
Above contention has merit, for the reason, ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 19 - [ 2025:HHC:32991 ] that once the advertisement(s) was issued for filling posts of TGTs on contract basis and this condition in the advertisement was at total variance or was .
dehors the express stipulation in the Service Rules of 1973, which expressly and exclusively recognized regular mode or nomenclature for the post of TGT's therefore, in these circumstances, the Statutory Rules of 1973 were to prevail and have precedence over an erroneous or inconsistent condition contained in advertisements. The Honble Supreme Court has also that mandated that the recruitment can only be made in accordance with the Statutory Rules and an erroneous or inconsistent condition in the advertisement shall have to give way to Statutory Rules. In these circumstances, the condition in the advertisements issued in the year 2008 and in February 2009 for filling up the posts of TGT's on contract basis, being inconsistent and contrary to Statutory Service Rules of 1973, issued under the proviso to Article 309 of the Constitution of India cannot override the statutory Rules which were to prevail for all purposes, as has been outlined by ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 20 - [ 2025:HHC:32991 ] Honble Supreme Court mandated in Malik Mazhar Sultan and Another vs State of UP Public Service Commission and Others, 2006 (9) SCC 507 ; and .
in Raminder Singh versus State of Punjab and Another, (2016) 16 SCC 95,; and in Ashish Kumar versus State of Uttar Pradesh and Others, 2018 (3) SCC 55, and in Employees State Insurance Corporation vs Union of India & Ors, reported in CA No 152 of 2022=2022 Live Law SC 78, that in the event of a conflict or inconsistency between a statement or a term and condition in advertisement vis-a-vis recruitment rules, then, the statutory rules / regulations shall prevail. Even in case of supremacy of qualifications and other conditions of service in Statutory Service Rules vis-à-vis an advertisement, the Honble Supreme Court has outlined in the case of Union of India vs Uzair Imran and Others 2023 SCC Online SC 1308, that if the qualifications mentioned in advertisement inviting applications are at variance with statutorily prescribed qualifications, it is the latter that would prevail. Accordingly, in these circumstances, this Court has no hesitation ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 21 - [ 2025:HHC:32991 ] to hold that the terms and conditions contained in advertisements dated 28.08.2008 and 17.02.2009, for filling posts of TGT's being totally inconsistent .
and was invariance to the Statutory Rules of 1973, which only provided for the regular nomenclature of the post of TGT's in regular pay scale, annual increments, with seniority from the date of initial appointment, leaves and the benefit of service for service for r to ACP Schemes and for treating the service as qualifying pension and other retiral benefits as granted to other incumbents, who were appointed on regular basis under the 1973 rules. Any inconsistent, erroneous or unconscionable condition contained in the advertisement(s) which is dehors or is deviation or is at variance with the express mandate in the Statutory Service Rules of 1973 cannot restrict or deprive the petitioners of their fundamental right of consideration for a post and cannot defeat the legitimate rights acquired under the extant service rules which governed the field at the relevant time entitling the petitioners for appointment and other service benefits under Statutory Service Rules of ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 22 - [ 2025:HHC:32991 ] 1973. In case of any variance in any of the terms and conditions in advertisement [which provided for contractual appointment in fixed emoluments] then, .
in such an eventuality any such erroneous condition in the advertisement(s) has to succumb to and give way to the Statutory Rules of 1973. The supremacy attached to the statutory rules of 1973 cannot be restricted, curtailed, negated or put on hold merely on the basis of an erroneous or inconsistent condition imposed by the State Authorities in the advertisement. The operation of statutory rules and benefits accruing to petitioners cannot be denied by putting them to a totally disadvantageous position and depriving them of the better status as regular incumbents from the date of their initial appointment /joining under statutory Rules of 1973. Thus, the action of the State Authorities in appointing the petitioners as TGT's on contract basis and in denying them the regular status from the date of their initial appointment/joining to which they are entitled to under the Statutory Service Rules of 1973. Further once contractual nomenclature of recruitment was ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 23 - [ 2025:HHC:32991 ] non-existent in the Service Rules of 1973 and such a provision was neither incorporated nor was it recognized in the existing Service Rules of 1973 on .
the date of the commencement of selection process by issuing the advertisement(s) on 28.08.2008 and 17.2.2009 for the posts of TGT's, but the contractual nomenclature was incorporated by issuing the New Rules on 22.10.2009.
In these
circumstances,
mandate of the Honble Supreme Court in the cases r in view of the of Malik Mazhar Sultan, Raminder Singh, Ashish Kumar, Employees State Insurance Corporation and Umair Imran [supra], an erroneous or inconsistent condition in advertisement for filling up posts of Trained Graduate Teachers on contract basis cannot be permitted to operate dehors the Statutory Service Rules of 1973 and therefore, the erroneous or inconsistent condition in advertisement being dehors the spirit of Article 14, 16 and proviso to Article 309 of the Constitution of India is declared inoperative, illegal, arbitrary and the State Authorities are mandated to treat petitioners to be "deemed ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 24 - [ 2025:HHC:32991 ] regular appointees" from the date of their initial appointment(s) [on contract] with all service benefits.
NEW RULES FOR POSTS OF TGTs ON 22.10.2009 CANNOT APPLY RETROSPECTIVELY:
.
7(iv). Once the New Rules for the post of Trained Graduate Teacher Graduate Teachers were notified on 22.10.2009 by introducing and recognizing contractual mode of recruitment then, these Rules could not be applied retrospectively, to the selections which had commenced in the case of the petitioners on 28.8.2008 and in February 2009. The amended
-ew rules could only operate prospectively and the new conditions of service recognizing the contractual nomenclature of recruitment by inserting Rules 10(ii) and Rule 15-A in New-Amended Rules cannot operate retrospectively and that too in absence of any express retrospectivity given to it under the Rules. New regime of contractual recruitment was to come into force from the date of publication of new-
amended Rules in Official Gazette w.e.f. 22.10.2009 for Trained Graduate Teachers. The amended rules recognizing and introducing the contractual mode of recruitment cannot take away the vested right of ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 25 - [ 2025:HHC:32991 ] consideration of the petitioners and upon selection for appointment on regular basis as given to TGTs inaccordance with the Statutory Service Rules .
of 1973. Amended or new Rules cannot operate retrospectively so as to affect or impair the vested rights which had accrued under pre-amended rules has been outlined by the Honble Supreme Court in T.R. Kapur & Ors. Versus State of Haryana & Ors. 1986 SCC (Suppl) 584.
settled that an authority competent to prescribe the r It is equally well qualifications for recruitment is competent to change qualifications, but with the rider that the rules defining eligibility, qualifications and suitability cannot be changed retrospectively and accrued/vested and accruable rights under Existing Service Rules cannot be impaired, curtailed, negated or denied in any manner. Even retrospectivity has to pass constitutional safeguards of Arts. 14 and 16 and 311. The Hon'ble Supreme Court, in the case of Assistant Excise Commissioner, Kottayam & Ors versus Esthappan Cherian & Anr., Civil Appeal No. 5815 of 2009, has mandated that a rule or law cannot be construed ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 26 - [ 2025:HHC:32991 ] as retrospective unless it expresses a clear or manifest intention to the contrary. Further, in Sree Sankaracharya University of Sanskrit and .
Others versus Dr. Manu and Another 2023 SCC OnLine SC 640, the Hon'ble Supreme Court held that a new rule or law cannot be given retrospective effect, except in a case, it clarifies vagueness or ambiguity in existing rule. An Amendment cannot law altogether.
r to operate retrospectively so as to change the existing While dealing with a similar situation as to whether appointment could be made on contract basis when the service regulations only provided for regular mode of appointment [though in case of the employees of Himachal Pradesh Road Transport Corporation], has been outlined by this Court in CWPOA No.2343 of 2020, titled as Vikram Singh vs Himachal Road Transport Corporation, decided on 09.11.2023, mandating that since the petitioners are claiming a right to be considered and to be resultantly appointed on regular basis on completion of one year of service whereas, the action of the ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 27 - [ 2025:HHC:32991 ] Corporation in appointing them on contract indicated infraction of fundamental rights of the petitioners guaranteed under Article 14 & 16 of the Constitution .
of India and once the petitioners were not in a position to dictate the terms of appointment, reflects an exploitative tendency on the part of respondent
-Corporation in aforesaid matter.
Based on similar fact-situation, in present case, the action of the State Authorities in resorting to exploitative tendency by resorting to contractual mode of recruitment by giving a complete go-bye to Statutory Service Rules of 1973 which expressly provided for recruitment on regular basis to posts of Trained Graduate Teachers prior to 22.10.2009 i.e. till issuance of the New Service Rules, by starting recruitment process by issuing the advertisement(s) on contract basis, due to its dominant position and no-bargaining power of petitioners-aspirants at relevant time and in terms of the mandate of the Hon'ble Supreme Court in case of Central Inland Water Transport Corporation Ltd. and another vs. Brojo Nath Ganguly and another, 1986 (3) SCC ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 28 - [ 2025:HHC:32991 ] 156, such an action cannot sustain.
Instant case needs to be looked into from another angle, for the reason, that once the State .
Authorities have appointed various persons on the post of Trained Graduate Teachers in the past under the Service Rules of 1973 on regular basis, in the regular pay scale, increments and other service benefits and such rules remained in force till they were repealed on 22.10.2009 then, action of State Authorities in depriving/denying regular appointment to the petitioners on regular basis, in the regular pay scale, with increments and other service benefits on the basis of commencement of selection process, by issuing advertisement(s) on 28.08.2008 and in February 2009, but in appointment the petitioners on contract basis, amounts to carving out a class within one homogenous class of persons, who were appointed as TGTs under the Service Rules of 1973 till the aforesaid Rules were repealed on 22.10.2009 without any rationale, having no nexus sought to be achieved by resorting to the action of appointing petitioners as Trained Graduate Teachers on contract, ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 29 - [ 2025:HHC:32991 ] dehors the Service Rules of 1973 establishes clear infraction of Articles 14 and 16 of the Constitution of India, and as per the mandate of the Hon'ble .
Supreme Court in K. Thimmappa and others vs. Chairman, Central Board of Directors, State Bank of India and another, 2001 (2) SCC 259, conferring a right on the petitioners to avail the benefits as given to others, notwithstanding the delay in seeking these benefits, and moreoso, when, claim is based on a continuing and recurring cause regarding higher pay fixation during service and the resultant benefit of higher retiral benefits upon superannuation.
Given as above, the petitioners are held entitled directed to be treated as Trained Graduate Teachers on regular basis with all service benefits accruable to regular incumbents under the Service Rules of 1973 from the date of their initial contractual appointment; with all service benefits like increments, seniority, eligibility towards Assured Career Progression Scheme etc. 7(v). The State Authorities-Respondents furnished the Instructions dated 13.09.2024 to the effect that ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 30 - [ 2025:HHC:32991 ] benefit of regularization as Trained Graduate Teachers from the date of initial appointment during the years 2008-2009 stands granted to some petitioners .
[i.e. petitioner Nos. 3, 4, 6 and 12] and in these circumstances, this Court sees no reason, as to why similar benefit of regularization as TGTs from the date of initial contractual appointment, be not extended to the remaining petitioners also.
7(vi).
placed
Learned
reliance
r on to
Counsel
the
for
mandate
the petitioners
of the
has
Division
Bench of this Court, in LPA No.21 of 2013, State of H.P. and others versus Ravinder Kumar along with connected matters, decided on 04.10.2019.
Even a perusal of the Instructions dated 13.09.2024 indicates that based on the judgment in LPA No. 21 of 2013 in the case of Ravinder Kumar (supra), benefit of deemed regularization as Trained Graduate Teachers from date of initial contract appointment has been extended to the petitioners No. 3, 4, 6 & 12 by treating them to be regular TGTs from the date of initial appointment. Once the benefit of judgment in the case of Ravinder Kumar (supra) ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 31 - [ 2025:HHC:32991 ] has been extended to some, therefore, the remaining petitioners [i.e. Petitioners No. 1, 2, 5, 7, 11 and 12] being similarly placed are entitled to similar benefits.
.
In these circumstances, in order to ensure parity in treatment and also to avoid the charge of hostile discrimination, the action of the State Authorities in treating "equals as unequal" cannot sustain.
Further an identical issue stands adjudicated by
Anju Bala
r vs to
this Court in CWP No. 5271 of 2023 titled as State of Himachal Pradesh and others, decided on 25.10.2024, granting the benefit of deemed regular appointment from date of initial contractual appointment as TGT's. In this backdrop, the petitioners herein, being similarly placed are entitled for same treatment and the prayer in the instant petition, carries weight and the same is accordingly allowed.
CONTENTIONS OF STATE COUNSEL:
8. Learned State Counsel contends that State Authorities have taken a policy decision on 12.12.2003 for making recruitment on contract basis. Based on the Reply-Affidavit he further contends that the ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 32 - [ 2025:HHC:32991 ] Finance Department took a decision on 17.12.2004 directing all the Departments to fill vacancies on contract basis and therefore, the petitioners were .
recruited/appointed on contract basis during 2008 to 2010.
This contention is not tenable, for the reason, that once the posts of TGTs falling under 1973 Rules were to be filled on regular basis, in r to regular pay scale for which seniority, leave, pension etc. was admissible and therefore, a mere policy decision of 12.12.2003 or like decision as in the letter issued by Finance Department on 17.12.2004 to introduce contractual nomenclature in recruitment was recognized and incorporated in the R & P Rules only on 22/26.10.2009.
POLICY DECISION CANNOT TINKER WITH OR WHITTLE DOWN OR AMEND OR SUPERSEDE STATUTORY RULES OF 1973 8(ii). Once the Statutory Recruitment Service Rules of 1973 occupied the field and remained in force till the repeal of these Rules till issuance of New Rules on 22/26.10.2009 then, a policy decision taken on 12.12.2003 or on 17.12.2004 {as per reply ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 33 - [ 2025:HHC:32991 ]
-affidavit} cannot be permitted to override, amend or supersede or tinker with statutory Service Rules of 1973 notified under the provision to Article 309 .
of the Constitution in view of the mandate of the Honble Supreme Court in Partha Dass versus State of Tripura, 2025 SCC Online SC 1844, that the policy decision dated 05.06.2018 seeking to introduce a New Recruitment Policy (NRP) so as to State rissued to bringing about a change in recruitment process in the under Article 166 (1) did not have a statutory and legislative backing but was a decision taken solely on the basis of exercise of the power vested in the executive and subsequent orders issued to keep in abeyance and then to disband recruitment process was quashed with the direction to take the recruitment process to logical end in terms of the Tripura State Rifle Act and Rules, after taking into account the declaration of law in the cases of State of Rajasthan vs State of Rajasthan 1967 SCC Online SC 16-Para 7); and in A B Krishna vs State of Karnataka (1998) 3 SCC 495 & Para 8 thereof; and in R Ranjith Singh vs State ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 34 - [ 2025:HHC:32991 ] of Tamil Nadu 2025 SCC Online SC 1009 & Para 19 thereof.
In the backdrop, the right of consideration .
and legitimate expectation based on statutory rules of 1973 cannot be either whittled down or tinkered nor could the policy decision dated 12.12.2003 or 17.12.2014 amend, supersede or restrict or curtail the scope, applicability and operation of Statutory Service Rules. Accordingly, the petitioners, who have undergone the selection process and based on above policy decision were appointed on contract incumbents deserve to be appointed as Trained Graduate Teachers on regular basis under the Service Rules of 1973 with all service benefits, as are admissible to regular incumbents under said Rules.
9. Learned State Counsel further contends that the State Legislature enacted the Himachal Pradesh Recruitment and Conditions of Service of Government Employees Act, 2024 {Taken on record} which came into force from the date of its publication in Rajpatra on 20.02.2025 providing that the employees shall be entitled to the "service ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 35 - [ 2025:HHC:32991 ] benefits" from date of regularization only and "service benefits" like seniority, increment, promotion, etc. shall be applicable only to employees appointed on .
regular basis and therefore, no service benefits could be claimed by the petitioners for contractual service rendered by them.
9(i). The above contention of the Learned State Counsel, is at the very outset vitiated by total non-application of mind, for the petitioners, are seeking declaration that they deserve r reason that the to be appointed as Trained Graduate Teachers on regular basis, with all service benefits as admissible to the regular incumbents-TGT's under the Statutory Service Rules of 1973 for all intents and purposes, instead of appointing them on contract basis, merely on the basis of policy decision dated 12.12.2003 or 17.12.2014 {as in reply}, when, any such policy decision cannot tinker with, whittle down or amend or supersede the Rules nor can such a decision restrict the operation, applicability and scope of the statutory rules of 1973 in any manner.
9(ii). Besides the above, the discussion on
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- 36 - [ 2025:HHC:32991 ]
this issue in split up in two parts i.e. Offending Part of the Enactment of 2024 and Supporting Part of the Enactment herein.
.
So far as the offending part of the Act of 2024 (supra) is concerned same cannot sustain, for the reason, firstly, the Enactment of 2024 could not be applied retrospectively w.e.f. 12.12.2003 so as to negate the service benefits which became due under Service Rules of 1973 ; and secondly, the aforesaid Act of 2024 carves out a class within one homogenous class of persons appointed on contract basis prior to enforcement of the Act on 20.02.2025 into two classes i.e. first set of persons consists of persons appointed on contract between 12.12.2003 to 20.02.2025 and covers those who have been denied the "service benefits" for contractual service i.e. increment, promotion, seniority and other service benefits whereas second set of persons consists of persons appointed prior to 12.12.2003 and covers those who have been granted "all service benefits" i.e. promotion, seniority and other service benefits and thus, the exclusion of the petitioners ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 37 - [ 2025:HHC:32991 ] {falling in first set of incumbents} from receiving the service benefits for contractual service on the same analogy as granted to other contractual appointees .
is not based on any valid classification and such an artificial classification has no nexus with object sought to be achieved by excluding the petitioners from service benefits as granted to others, despite being eligible, being appointed against sanctioned posts after due process of law uninterrupted service was followed by regularization r and when, such prospectively smacks of patent discrimination and arbitrariness in State action, being violative of Article 14 and 16 of the Constitution of India; and thirdly, the Act which tends to nullify, negate or render the mandate contained in the judgement passed by the Division Bench of this Court in CWP No. 2004 of 2017, titled as Taj Mohammad and others versus State of Himachal Pradesh and others decided on 03.08.2023, which stands affirmed by the Hon'ble Supreme Court as nugatory and otiose and therefore, such an action cannot be permitted to sustain;
and fourthly, even the enactment of 2024 made ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 38 - [ 2025:HHC:32991 ] with the sole intent to overreach and scuttle the mandate in the judgement in the case of Taj Mohammad, which was based on the judgements .
passed by the Honble Supreme Court in the cases of Direct Recruit Class II Engineering Officers Association versus State of Maharashtra (1990) 2 SCC 715 and State of West Bengal vs Aghore Nath Dey (1993) 3 SCC 371 and moreover, when, in Bench of r Court to pursuance of the judgment passed by the Division in the case of Oma Wati vs State of HP {CWPOA No 5507/2020 & Paras 7-8 thereof), against which SLP © 46343 of 2024, preferred by State Authorities also stands dismissed on 09.05.2025.
So far as supporting part of Act of 2024 (supra) is concerned, the petitioners are entitled for regular appointment as Trained Graduate Teachers from the date of initial appointment for the reason, that firstly, a perusal of the Statement of Object and Reasons reveals that the Legislative intent of the Act of 2024 is to "exclude contractual appointments" which were "included in recruitment ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 39 - [ 2025:HHC:32991 ] and promotion rules notified under the proviso to Article 309" of the Constitution of India. In backdrop of this legislative intent, once contractual .
nomenclature of appointment was incorporated in the Recruitment and Promotion Rules notified under the proviso to Article 309 of the Constitution of India for the posts of Trained Graduate Teachers on 22/26.10.2009 [Annexure P-2], which is now, sought to be excluded by virtue 2024 therefore, the only logical conclusion is that r of the Act of the selection process for recruitment as Trained Graduate Teachers which had commenced by the issuance of advertisements on 28.08.2008 and on 17.02.2009 under the extant Service Rules of 1973 notified under the provisio to Article 309 cannot be denied to the petitioners herein, so as to give effect to the legislative intent of the Act of 2024; and secondly, in terms of the Act of 2024, upon exclusion-withdrawal of contractual service for service benefits from 12.12.2003 due to exclusion of contractual mode or nomenclature of recruitment / appointment then, the petitioners are entitled to ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 40 - [ 2025:HHC:32991 ] be treated as regular employees-TGTs from date of initial appointment in 2008 & 2009 for all purposes; and thirdly, even in terms of Section 8 .
of the Act of 2024, once the Legislature in its wisdom substituted the words "on contract basis or such similar words conveying same meaning"
occurring in Column No 10 of Service Rules notified under the provisio to Article 309 of the Constitution of India between to12.12.2003 of this Act on 20.02.2025 by the expression "by r till commencement regularization" and therefore, by virtue of statutory substitution "the persons who were appointed on contract between the period from 12.12.2003 to 20.02.2025 by legal fiction deserve to be treated as regular appointees, on posts of Trained Graduate Teachers from the date of their initial appointments;
and fourthly, as per Section 12 of the Act of 2024, the appointments made under the Rules of 1973 notified under proviso to Article 309 expressly and exclusively provides for regular nomenclature-
mode of appointment, which is in consonance with the legislative intent and object of the Act of ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 41 - [ 2025:HHC:32991 ] 2024; and lastly, once the State Authorities had appointed petitioners as Trained Graduate Teachers on contract basis in the year 2008-2009 merely on .
account of a mere policy decision dated 12.12.2003 and/or dated 17.12.2004, but by giving a complete go-bye to the Statutory Service Rules notified for post of Trained Graduate Teachers on 28.12.1973.
Thus, once the erroneous action of State Authorities has now been rectified/remedied Legislature by enacting the Act of 2024, entitling all r by the State persons who were appointed between 12.12.2003 till the enactment of the Act on 20.02.2025 to be regular appointees, in order to give effect to the legislative intent and the object of the enactment, [in view of Section 8 and 12 of the Act] and to restore the legal rights and entitlement of regular appointment and all service benefits admissible to the petitioners as Trained Graduate Teachers under the Service Rules of 1973 will all benefits.
PLEA OF ESTOPPEL CANNOT DEFEAT RIGHTS & BENEFITS UNDER STATUTORY SERVICE RULES OF 1973:
10. Learned State Counsel contends that the ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 42 - [ 2025:HHC:32991 ] petitioners had participated for appointment as contractual appointees and therefore, they have no right to seek appointment on regular basis from .
the date of initial contractual in view of the principle of estoppel.
The above contention of the Learned State Counsel is misconceived for the reason that firstly, petitioners being eligible under the Law i.e. Service Rules of 1973 had to a right to accordance with law; and secondly, such law can r be considered in neither be abridged or negated or whittled down by a mere policy decision and thirdly, the plea of estoppel and acquiescence raised by the State Authorities cannot operate against law i.e. Statutory Rules of 1973 as applicable in the instant cases;
and fourthly, any unconscionable term and condition in advertisement which was contrary to the extant rules, occupying the field was certainly opposed to public policy and was ex-facie violative of Articles 14, 16 and 309 proviso; and lastly, even after accepting the terms-conditions an employee still has a right to challenge the arbitrary conditions ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 43 - [ 2025:HHC:32991 ] and to seek rightful claims, legal entitlements and service benefits accountable inconformity with the statutory Rules of 1973 in this case. Mere acceptance .
of the terms and conditions imposed by employer due to its dominating position and the no bargaining power of an aspirant/employee, who is at a receiving end cannot be the basis of oust the petitioner, who is seeking benefits in terms of Service Rules of 1973 issued under Article 309 of the Constitution of India. Bar of estoppel and acquiescence cannot operate against the law and mere acceptance of the terms and conditions cannot be a ground to challenge such conditions and/or to claim remedy for benefits inconformity with law, in terms of the mandate of the Honble Supreme Court in Somesh Thapliyal versus HNB Garhwal University, (2021) 10 SCC 116. Moreover, in Krishna Rai versus Banaras Hindu University & Ors, (2022) 8 SCC 713, that if the law requires an act to be done in a particular manner and if the same is not done in that manner then, the bar of estoppel-
acquiescence will not apply so as to seek the
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- 44 - [ 2025:HHC:32991 ]
enforcement of rights under the statutory rules,
which have supremacy.
11. Further contention of the Learned State
.
Counsel that the Act of 2024 has not been assailed by the petitioners and therefore, no relief can be granted.
The above plea is misplaced for the reason, that since the Act of 2024 and the legislative intent and the provision of including Section 8 and 12 of the Act strengthens and supports the case of the petitioners herein, then, the aforesaid enactment is not required to be assailed. Moreover, enactment has to be harmoniously construed, so as to give effect to its legislative intent and to ensure that the erroneous state action in applying the policy decision {so as to make contractual recruitments} by giving a complete go-bye to the extant Service Rules for the post of TGTs issued under the provisio to Article 309 of the Constitution of India, which expressly and exclusively provided for regular appointments. Thus, once the Act of 2024, remedied the erroneous action and restored the legal rights ::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 45 - [ 2025:HHC:32991 ] and entitlements flowing to the petitioners as per the Statutory Service Rules off 1973 therefore, the petitioners herein, have a lawfully enforceable right .
to be treated as regular incumbents-TGT's under the Statutory Service Rules of 1973 from the date of their initial contractual appointment(s), with all the service benefits, as are accruable to the regular employees. In these circumstances, the contention of Learned State Counsel is turned down and the claim of the petitioners is accepted, as discussed above.
DIRECTIONS:
12. In view of above discussion and for the reasons recorded hereinabove, the instant petition, is partly allowed, in the following terms:
(i). State Authorities are directed treat the petitioners as regular Trained Graduate Teachers from date of their respective initial contractual appointment from due date with regular status, pay in regular pay scales, increments and all other service benefits, including retiral benefits ; by modifying the orders of contractual appointment or otherwise with all consequential benefits ;::: Downloaded on - 26/09/2025 21:28:21 :::CIS
- 46 - [ 2025:HHC:32991 ]
(ii). Needless to say, that actual monetary
benefits shall accrue for a period of three years preceding the date of filing of CWP No 2270 of 2013 [CWPOA No 2223 of 2019 on 18.04.2013]; in terms .
of the mandate of law in Union of India versus Tarsem Singh (2008) 8 SCC 648; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274;
State of Madhya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 and Asger Ibrahim Amin versus Life Insurance Corporation of India (2016) 13 SCC 797, followed in Rushibhai Jagdish chandra Pathak r versus Bhavnagar Municipal Corporation CA No. 4134 of 2022 [2022 SCC Online S C 641] ;
(iii). Respondents are directed to ensure the implementation of this judgement within six weeks from today;
(iv). Liberty is granted to the petitioners to make appropriate representation regarding Prayer No. IV [equal pay for equal work] to Competent Authority within one month from today; with further directions to the aforesaid authority to examine/decide the same in accordance with law by a speaking order, within six weeks, from the date of receipt of such representation;
(v). Parties to bear their respective costs.
::: Downloaded on - 26/09/2025 21:28:21 :::CIS- 47 - [ 2025:HHC:32991 ] In aforesaid terms, the instant petition stands disposed of along with pending miscellaneous application(s), if any.
.
(Ranjan Sharma)
Judge
September 12, 2025
[tm]
r to
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