Himachal Pradesh High Court
Badal Chauhan vs State Of H.P And Others on 14 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN,
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 6315 of 2021 ALONG WITH CONNECTED
MATTER
Between:-
1. BADAL CHAUHAN, S/O ATMA RAM
CHAUHAN, R/O VILLAGE MAJHGAON
P.O. SHAHDHAR TEHSIL RAMPUR,
DISTRICT SHIMLA, HIMACHAL
PRADESH.
2. DHARMENDER KUMAR, S/O AMAR
SINGH, R/O VILLAGE NAURU, P.O.
BHANGROTU, TEHSIL BALH,
DISTRICT MANDI, HIMACHAL
PRADESH-175021
3. GANESH SUTHAR, S/O TOLA RAM
SUTHAR, R/O #496, NAYAK MOHALLA,
VPO- PUNRASAR, DISTRICT BIKANER,
RAJASTHAN-331811
4. MAMRAJ, S/O SANT RAM, R/O
VILLAGE DEVNAL, P.O. JHAKANDO,
TEHSIL SHILLAI DISTRICT SIRMOUR,
HIMACHAL PRADESH-173027
5. RUSHIL BHUSHAN, S/O BHARAT
BHUSHAN, R/O VILLAGE ROPA, P.O.
BAHAL, TEHSIL GALORE, DISTRICT
HAMIRPUR, HIMACHAL PRADESH-
177026
6. VENUS, D/O SUBHASH KAPOOR,
VILLAGE & P.O. LARANKELLO,
TEHSIL KULLU, DISTRICT KULLU,
HIMACHAL PRADESH-175101
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7. KAMAL, S/O JOGINDER SINGH, R/O
VILLAGE CHAKWARI, P.O. LARATH
FATEHPUR, DISTRICT KANGRA,
.
HIMACHAL PRADESH-176051
8. KANWAR ABHISHEK, S/O DUNI
CHAND, R/O VILLAGE PANAHAR, P.O.
BAFFRIN, TEHSIL & DISTRICT
HAMIRPUR, HIMACHAL PRADESH-
177029
9. ANKUSH KUMAR, S/O VINOD
KUMAR, R/O VILLAGE AND P.O.
TIARA, TEHSIL & DISTRICT KANGRA,
HIMACHAL PRADESH
10. MAHESH CHAND, S/O JOGINDER
SINGH, R/O VILLAGEAISAN, P.O.
JASANA, TEHSIL BANGANA, DISTRICT
UNA, HIMACHAL PRADESH-174307
11. DEEPAK, S/O SURINDER SINGH,R/O
VILLAGE RAMPUR, P.O. & DISTRICT
UNA, HIMACHAL PRADESH
12. AJAY KUMAR SHARMA, S/O
NIDHIYA RAM, R/O VILLAGE LOHANI,
P.O. TIKROOSALOONI, DISTRICT
CHAMBA, HIMACHAL PRADESH-
176320
13. KAVITA CHOUDHARY, D/O
KASHMIR SINGH, R/O VILLAGE & P.O.
CHHAINCHHARY, TEHSIL
PALAMPUR, DISTRICT KANGRA,
HIMACHAL PRADESH.
14. DEEPAK, S/O RAM KUMAR, R/O #
638, SECTOR 32A, CHANDIGARH.
15. PRIYESH KUMAR, S/O PREM LAL,
R/O VILLAGE RANDOUL, P.O.
TATTAPANI, TEHSIL KARSOG,
DISTRICT MANDI, HIMACHAL
PRADESH-175009
16. AKSHAY KUMAR, S/O AMAR
SINGH, R/O VILLAGE AND P.O.
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KHODRI-MAJRI, TEHSIL PAONTA
SAHIB, DISTRICT SIRMOUR,
HIMACHAL PRADESH-173025
.
17. RAJESH KUMAR, S/O PAIR SINGH,
R/O VILLAGE DUGHI, P.O.
CHALWARA, TEHSIL JAWALI,
DISTRICT JAWALI, DISTRICT
KANGRA, HIMACHAL PRADESH-
176023
18. SNEH LATA, D/O LEKH RAJ, R/O
NEAR TEHSIL KOTLI, P.O. KOTLI,
TEHSIL KOTLI, DISTRICT MANDI,
HIMACHAL PRADESH-175003.
19. MANISH KUMAR, S/O MADAN LAL,
R.O VILLAGE & P.O. HURLA, TEHSIL
BHUNTAR, DISTRICT
r KULLU,
HIMACHAL PRADESH-175125
20. PANKAJ SEN, S/O ROSHAN LAL, R/O
VILLAGE SHILAKANDHI, P.O. JACHH,
DISTRICT MANDI, HIMACHAL
PRADESH.
21. AKASH CHOUDHARY, S/O PAWAN
KUMAR, R/O VILLAGE AND P.O.
HATWAS, TEHSIL NAGROTA-
BAGWAN, DISTRICT KANGRA,
HIMACHAL PRADESH-176047
22. DALJEET, S/O RAMESH, R/O
VILLAGE SHAKOLI, P.O.
TRILOKNATH, SUB TEHSIL, UDAIPUR,
DISTRICT LAHAUL AND SPITI,
HIMACHAL PRADESH.
23. TANUJA KUMARI, D/O GOPAL
SINGH, R/O VILLAGE GOHLA, P.O.
KANSAKOTI, TEHSIL ROHRU,
DISTRICT SHIMLA, HIMACHAL
PRADESH-171207
24. ANITA KUMARI, D/O TARA CHAND,
R/O VILLAGE P.O. AND TEHSIL NIHRI,
DISTRICT MANDI, HIMACHAL
PRADESH-175038
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25. DEEPAK PRASAD, S/O DINESH
PRASAD, R/O VILLAGE RAKASIYA,
P.O. LALA BADHASARA, DISTRICT
PATNA, BIHAR 801102
.
26. RAJIT KUMAR, S/O RAKESH
KUMAR, R/O VILLAGE DUGLI, P.O.
BARDHIN, TEHSIL GHUMARWIN,
DISTRICT BILASPUR, HIMACHAL
PRADESH-174003
27. ANKUR KUMAR, S/O KANSHI RAM,
R/O VILLAGE MALTHER, P.O. RATTI,
TEHSIL BALK, DISTRICT MANDI,
HIMACHAL PRADESH-175008
28. KISHAN LAL, S/O KEWAL RAM, R/Q
VILLAGE THANDAL, P.O. PURTHI,
TEHSIL PANGI, DISTRICT CHAMBA,
HIMACHAL PRADESH
29. DHARMENDER KUMAR, S/O
HUKAM SINGH, R.O VILLAGE P.O.
AND TEHSIL NIRMAND, DISTRICT
KULLU, HIMACHAL PRADESH-172023
30. ABHISHEK, S/O JEEVAN CHAND,
R/O VILLAGE P.O. NANDPUR
BHATOLI, TEHSIL DEHRA, DISTRICT
KANGRA, HIMACHAL PRADESH-
176033
31. AMIT KUMAR, S/O MOTI SINGH,
R/O VILLAGE KHAJAIR, P.O. REI,
TEHSIL PANGI, DISTRICT CHAMBA,
HIMACHAL PRADESH-176323
32. SACHIN KUMAR, S/O AJAY KUMAR,
R/O VILLAGE JIANA, P.O. JOL
LAMBRI, TEHSIL SUJANPUR,
DISTRICT HAMIRPUR, HIMACHAL
PRADESH.
33. HIMANSHU KATOCH, S/O RANJEET
KATOCH, R/O VILLAGE. KHENVI, P.O.
DIGERH TEHSIL. ANNI DISTRICT
KULLU, HIMACHAL PRADESH
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34. ROHIT KUMAR S/O KARTAR
CHAND R/O VILLAGE NAGEHRARA,
P.O. GAHLI TEHSIL NADAUN,
DISTRICT HAMIRPUR HIMACHAL
.
PRADESH-174405.
35. MUKUL JOSHI, S/O KAILASH
JOSHI, R/O VILLAGE & P.O. DHAR
GAURA, TEHSIL RAMPUR, DISTRICT
SHIMLA, HIMACHAL PRADESH.
36. VIKRAM SHARMA S/O BHOOP
SINGH R/O KK NIWAS VP.O.-
MALYANA, TEHSIL & DISTRICT
SHIMLA 171006, HP.
37. VIVEK SURYA S/O DURGA SINGH
SURYA R/O VILLAGE SINGHOLI, P.O.-
DEVA MANAL, TEHSIL NOHRADHAR
DISTRICT- SIRMOUR 173104, HP..
38. ANMOL SOOD S/O ANJANI SOOD
R/O V.P.O. BHNAWARNA, TEHSIL-
PALAMPUR, DISTRICT, KANGRA
176083, HP.
39. NEERAJ KUMAR S/O RANBER
SINGH R/O VILLAGE YANGRANG P.O.-
LOTE, TEHSIL, KEYLONG DISTRICT
LAHOUL-SPITI, HP.
40. PANKAJ MAHAJAN S/O SANJAY
MAHAJAN R/O VILLAGE-DEVIDEHRA
P.O.-BATHRI, TEHSIL- DALHOUSIE
DISTRICT CHAMBA, HP.
41. AMIT KUMAR S/O DILER SINGH
R/O VILLAGE BAJURI P.O.& TEHSIL
HAMIRPUR, DISTRICT- HAMIRPUR
177001, HP.
42. SHUBHAM S/O MOHAN LAL R/O
VILLAGE KUTHERA P.O.-BAHAL,
TEHSIL NADAUN DISTRICT
HAMIRPUR 177026, HP.
43. MAHESH KUMAR S/O MEHAR DAS
R/O VILLAGE DURAHA, TEHSIL
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NIRMAND, DISTRICT KULLU, 172033,
HP.
44. R/O VISHESH CHAUDHARY S/O
.
DHARAM SINGH VP.O.-
GHURKARITIKA GUJRERH TEHSIL &
DISTRICT, KANGRA, 176001 HP
45. DEVINDER SINGH S/O KRISHAN
CHAND R/O VP.O. BUINI TEHSIL-
NIRMAND DISTRICT- KULLU 172002,
HP.
46. RAJ KAMAL S/O TILU RAM R/O
VP.O.- TUNAN TEHSIL- NIRMAND,
DISTRICT- KULLU 172001 HP
47. MOHIT S/O DHARAMBIR SINGH
R/O 1022/ A KRISHANA COLONY
JIND,HARYANA 126102, HP
48. AJAY SINGH S/O SATWINDER
SINGH R/O VILLAGE JAKHARA 176021,
HP TEHSIL FATEHSILPUR, DISTRICT-
KANGRA
49. LORIZ CHOUDHARY S/O
RAVINDER KUMAR R/O HOUSENO-
22/1, WARDNO-3, P.O. & TEHSIL
PALAMPUR, DISTRICT KANGRA
176061, HP.
50. PALLVI THAKUR D/O HARISH
KUMAR R/O VILLAGE RUNJH P.O.
KATINDHI TEHSIL. SADAR DISTRICT.
MANDI 175005, HP
51. - NEHA D/O PAWAN KUMAR R/O
VILLAGE AMLEHAR P.O. KHERIAN
TEHSIL.DEHRA DISTRICT. KANGRA,
HP.
52. JEET SINGH S/O MUNSHI RAM R/O
VILLAGE. JACHH P.O.BASSA
WAZIRAN, TEHSIL NURPUR DISTRICT
KANGRA, 176201, HP
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53. ANUJ ARORA S/O AMARJEET
ARORA R/O VP.O. BANIKHET TEHSIL,
DALHOUSIE DISTRICT. CHAMBA, HP
.
54. AKSHAY SANKHYAN S/O AMAR
CHAND R/O VILLAGE-VILLAGE
BHORAN-JBUHLA, P.O.& TEHSIL
BHORANJ DISTRICT, HAMIRPUR 1
76045, HP
55. ABHIMANYU S/O ASHOK KUMAR
R/O PARITYAR MOHALLA, WARD NO-
8 HOUSE NO-1074, NURPUR, P.O.-
NURPUR DISTRICT- KANGRA 176202,
HP
56. AJAY KUMAR S/O VIDHYA DUTT
R/O WARD NO. 6 NEAR TELEPHONE
EXCHANGE NURPUR P.O.-
57. PAWAN KUMAR S/O MADAN
GOPAL R/O VILLAGE PANOG
P.O.HALOG DHAMI TEHSIL DISTRICT.
SHIMLA, HP.
.....PETITIONERS
(BY SH. SHRAWAN DOGRA, SENIOR
ADVOCATE WITH MR. HARSH KALTA
AND MR. DEEPAK SHARMA,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
SECRETARY (PWD) TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-1.
2. ENGINEER IN CHIEF, HPPWD,
NIRMAN BHAWAN NIGAM VIHAR
SHIMLA-2, HIMACHAL PRADESH.
3. HIMACHAL PRADESH STAFF
SELECTION COMMISSION
HAMIRPUR, HP. THROUGH ITS
SECRETARY.
....RESPONDENTS
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(MR. ASHOK SHARMA, A.G. WITH MR.
RAJINDER DOGRA, SR. ADDL. A.G.
WITH MR. VINOD THAKUR, ADDL.
A.G. MR. BHUPIDNER THAKUR,
.
DY.A.G FOR R-1 AND -2 AND MR.
SANJEEV KUMAR MOTTA,
ADVOCATE FOR R-3)
CIVIL WRIT PETITION NO. 4902 OF 2021
Between:-
SHRI ANISH THAKUR
SON OF SHRI KAMLESH THAKUR,
AGED 26 YEARS, R/O HOUSE NO. 34,
VILLAGE AND POST OFFICE GAGGAL
KHAS, TEHSIL PALAMPUR,
SUB TEHSIL DEHRA,
DISTRICT KANGRA, H.P.
....PETITIONER
(BY SH. ONKAR JAIRATH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY (PUBLIC WORKS
DEPARTMENT) TO THE GOVT. OF HIMACHAL
PRADESH, SHIMLA-171002.
2. THE HIMACHAL PRADESH STAFF
SELECTION COMMISSION HAMIRPUR,
DISTRICT HAMIRPUR, HIMAHAL PRADESH
THROUGH ITS SECRETARY.
...RESPONDENTS
(MR. ASHOK SHARMA, A.G. WITH MR.
RAJINDER DOGRA, SR. ADDL. A.G.
WITH MR. VINOD THAKUR, ADDL.
A.G. MR. BHUPIDNER THAKUR,
DY.A.G FOR R-1 AND MR. SANJEEV
KUMAR MOTTA, ADVOCATE FOR R-2)
Reserved on: 07.12.2021
Decided on: 14.12.2021
________________________________________________________________________
These petitions coming on for admission after notice this day, Hon'ble Mr.
Justice Satyen Vaidya, passed the following:
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ORDER
Since common question of law and facts are involved in both these petitions, .
therefore, the same are being decided by a common judgment. The only distinguishing fact in CWP 4902 of 2021 is that the petitioner in said case though had cleared the cut off criteria but had not been offered the appointment. To maintain clarity, facts in CWP 6315 of 2021 are being taken into consideration.
2. The Himachal Pradesh Staff Selection Commission (in short "HPSSC") vide Advertisement No. 34-1/2018 dated 27.06.2018 invited applications from eligible candidates for various posts in different Departments/Boards/Corporations of Government of Himachal Pradesh, including 123 posts of Junior Engineer (Civil) [for short "JE(C)"] in Himachal Pradesh Public Works Department (for short, "HPPWD") against post Code No. 695. The number of declared vacancies were later increased to
125.
3. Government of Himachal Pradesh has framed Recruitment and Promotion Rules for the post of J.E (C), Class-III, Non-Gazetted in HPPWD (for short, "R&P Rules").
The essential qualifications for the post of J.E (C), as per R&P Rules, are as under: -
"Essential Qualifications:
(i) Should have passed matriculation examination or its equivalent from a recognized Board/University.
(ii) Regular full time Diploma in Civil Engineering (three years) or its equivalent from an institution/University duly recognized by the Central or State Government."
Correspondingly, the HPSSC, vide advertisement dated 27.6.2018, prescribed essential qualification for the post of JE(C). Nonetheless, certain candidates with graduation in Civil Engineering (for short, "Graduate Engineers") also submitted their applications.
::: Downloaded on - 31/01/2022 23:25:53 :::CIS 104. HPSSC conducted written objective type test on 18.11.2018. Total 385 candidates qualified the screening test. Evaluation process was undertaken from 09.04.2019 to .
12.04.2019. HPSSC rejected the candidature of all those candidates, who were not possessing regular three years Diploma in Civil Engineering. HPSSC declared result on 27.9.2019 and total 102 candidates including the petitioners qualified.
5. Petitioners and other selected candidates were issued appointment letters in the months of January and February, 2020. Petitioners joined their respective places of posting. 23 posts of J.E(C) still remained vacant.
6. The graduate engineers whose candidature was rejected by the HPSSC, for not possessing three years regular Diploma in Civil Engineering, had approached this Court by way of various Civil Writ Petitions, detail of which is as under: -
"CWP No. 2801/2019, CWP No. 2788/2019, CWP No. 2940/2019, CWP No. 2946/2019, CWP No. 3093/2021, CWP No. 3415/2019 and CWP No. 2141/2020."
The main grievance of Graduate Engineers was that they held higher qualification and therefore, were also eligible for the post of JE (C).
7. This court in a bunch of writ petitions with the lead case being CWP No. 138 of 2020 titled Robin Kumar and others Vs State of H.P and others, while dealing with an identical issue pertaining to recruitment of Junior Engineers (Electrical) in Himachal Pradesh State Electricity Board, had negated the claim of Graduate Engineers. The judgment of this court was set aside by Hon'ble Supreme Court vide judgment passed in Puneet Sharma Vs Himachal Pradesh State Electricity Board and others reported in AIR 2021 SC 2221 and the Graduate Engineers were held eligible for the post of Junior Engineer along with Diploma Engineers.
::: Downloaded on - 31/01/2022 23:25:53 :::CIS 118. Accordingly, all the above noted petitions filed by graduate engineers were decided by this Court by a common judgment dated 05.07.2021 in the following terms: -
.
"The parties are at ad - idem that the issue in question is squarely covered by the judgment rendered by the Hon'ble Supreme Court in Puneet Sharma & Ors. vs. Himachal Pradesh State Electricity Board Limited & Ors., AIR 2021 SC 2221.
2. Accordingly, all these petitions are disposed of in terms of the aforesaid judgment, the ratio whereof shall apply mutatis mutandis to all these cases. The respondent State is directed to implement the aforesaid judgment in its letter and spirit. Pending application(s), if any, also stands disposed of, leaving the parties to bear their own costs.
3. For compliance list on 2.8.2021.
9. On 20.09.2021, this Court passed another order, which reads as under: -
"No ground whatsoever is made out for not complying with the order of this Court. In such circumstances, the application for extension of time is clearly misconceived and is disposed of accordingly. The candidates who have now been found to be eligible in terms of the judgment passed by this Court will have to be offered appointment and the mere fact that candidates who stand appointed and would be adversely affected by the appointment, is no ground for not implementing the order of this Court.
Therefore, the State is directed to comply with the order forthwith and report compliance on or before the next date of hearing, failing which, this Court shall be constrained to initiate contempt proceedings against the erring officer/officials."
10. Consequently, HPSSC issued revised select list in compliance to judgment dated 05.07.2021. As a sequel, respondent Nos. 1 and 2 vide communication dated 25.09.2021 and 27.09.2021 terminated the services of 83 Diploma Engineers, including petitioners ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 12 herein, as per re-determined merit list. Out of said 83 persons a few are stated to have been appointed again as JEs (C) in HPPWD having found their names in the waiting list.
.
11. Aggrieved, against the aforesaid actions of respondents, the petitioners have approached this Court by way of instant petitions seeking following substantive reliefs: -
i) The termination of the petitioners vide office order dated 25.09.2021 (ANNEXURE P-11) and 27.09.2021 (ANNEXURE P-11/1) may be quashed and set aside.
ii) That the petitioners may be declared to constitute a class separate, and law declared by Hon'ble Apex Court in Puneet Sharma's case (ANNEXURE P-9) and consequently directed to be implemented through judgment dated 05.07.2021 (ANNEXURE P-10) by this Hon'ble Court, may be declared as not applicable in the peculiar facts and circumstances to the present petitioners.
iii) That based on the recommendations of Respondent No.3 dated 27.09.2019 (ANNEXURE P-6) the appointments of the petitioners made by Respondents No. 1 and 2 vide office order dated 17.01.2020 (ANNEXURE P-7) may be declared to be valid and legal and the petitioners may be allowed to continue working as JE (Civil) with Respondents No. 1 and 2 against available vacancies of JE (Civil) for all intents and purposes.
iv) That the period between the date of termination and re-engagement by the Respondents No. 1 and 2 as JE (Civil) in consequence to the orders that may be passed by this Hon'ble Court in the present writ petition, may be taken as period on duty for all intents and purposes.
12. The grounds on which the petitioners have based their claim can be summarized as under:
(i) After acceptance of offer of appointment by petitioners, they had acquired the status, which could be put to an end only by application of known Rules of service jurisprudence. Their service conditions were governed by ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 13 the R&P Rules framed under Article 309 of the Constitution and were denied protection of Article 311;
.
(ii) the case of petitioners is required to be considered in a sympathetic manner as their appointments were not result of any fraud or misrepresentation on their part. They had opted to join the post of J.E(C) after successfully qualifying the selection process by ignoring the lucrative jobs/offers. They had worked for about 20 months without any complaint and were possessing the essential qualifications as per R&P Rules. Their careers would be ruined. The petitioners in support of their contentions have relied upon the following judgments of Supreme Court as precedents:
Vikas Pratap Singh Vs State of Chhattisgarh and others: 2013(14) SCC 494;
Union of India Vs Kuldeep Kumar and others: 2014 SCC online Del 3873; and Anmol Kumar Tiwari and others Vs State of Jharkhand and others: 2021 (5) SCC 424.
(iii) ratio in Puneet Sharma' case could not be applied retrospectively as on the date of decision in Puneet Sharma's case i.e. 07.04.2021, the petitioners stood already appointed and had been working for more than a year.
Distinction has also sought to be drawn by the petitioners from the case of Puneet Sharma on the ground that in said case, the selection process was still under way and the appointments were not made, whereas in the case of petitioners they were already appointed and hence the ratio of Puneet Sharma's case was not applicable to their case;
(iv) this Court vide its judgment dated 05.07.2021 had not specifically directed respondent No.3 to revise the merit list and said respondent being only ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 14 recruiting agency had become functus officio after completion of selection process. In Puneet Sharma's case, there was a specific direction to re-do .
the selection process, whereas the same was lacking in judgment dated 05.07.2021;
(v) they were prejudiced by their non-impleadment in petitions by Graduate Engineers;
(vi) principles of natural justice were violated;
(vii) respondents No. 1 and 2 still have 75 vacancies of J.E(C) to be filed by direct recruitment and their cases for appointment may be considered against such vacancies.
13. In response, respondents have categorically stated that the judgment in Puneet Sharma's case passed by the Hon'ble Apex Court was pari materia applicable to the facts in the petitions of Graduate Engineers. Respondents had complied with the judgment passed by this Court on 05.07.2021 in letter and spirit. It has been specifically contended that the petitioner No. 57 in CWP No. 6315 of 2021 had got himself impleaded as intervener in the petitions of Graduate Engineers and hence was estopped from filing the instant petition. Even other petitioners were aware about the proceedings of Graduate Engineers' petitions, but they chose to remain as mere observers. Judgment dated 05.07.2021 passed by this Court had attained finality and thus the efficacy thereof cannot be undone by way of instant petitions.
14. We have heard learned counsel for the parties and also gone through the record of the case.
15. Admittedly, the advertisement issued by the HPSSC against post code 695 invited applications for the posts of JE (C) to be filled on contract basis. All persons selected to ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 15 the post of JE(C), in pursuance to selection made by the HPSSC, were given appointments by respondents No. 1 and 2 purely on contract basis. The petitioners had .
participated in the selection process and also had accepted the appointments to the post of J.E (C) on contract basis with eyes wide open. In this context, it will be relevant to notice the following few conditions of office order whereby the appointments were offered to the petitioners and similarly situated persons.
Terms and conditions: -
"1. On contractual basis initially for a period of one year from the date of joining the post but the contract can be renewed thereafter on yearly basis which will stand terminated automatically at the end of contractual period without notice.
2. On consolidated monthly emoluments in the pay scale Rs.10300+3800 =14100/- P.M. of the category concerned and Dearness allowances as admissible. No other allowance whatsoever admissible to the employees of the State Govt. from time to time shall be payable He/she will be entitled to TA/DA if required to go on tour in connection with his/her official duties at the same rate as applicable to regular staff members.
3. He/she will be titled for 12 casual leave in a year and no other leave will be admissible other than Gazetted Holiday and Sunday.
4. He/she will be governed under the CCS & CCA Conduct Rules and his continuation on Contract on year to year basis will be based on his performance and conduct. His/her services can be terminated prematurely without assigning any reasons with one month notice or with one-month wages.
5. Subject to execution of draft agreement and surety bond for Rs.10,000/- on Non-Judicial paper of Rs.5/- and Rs.15/- respectively which are to be executed before the Executive Magistrate before acceptance of joining report, Draft Agreement and surety bond are to be sent to the candidate with the appointment orders.
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22. The above appointment are subject to review due to any consequential administrative reason that may arise later on."
.
16. The process of selection and consequent appointments of petitioners as JEs (C) on contract basis had backing of R&P Rules. As per Rule 10 method of recruitment to the post of JE(C) is 75% through direct appointment and 25% by promotion. Out of quota to be filled by direct recruitment, 45% has been prescribed to be filled either on regular or contract basis as the case may be.
17. Further Rule 15-A of the R & P Rules specifically provides for concept and terms and conditions of contract employment. Relevant extracts of said rule are reproduced as under:
"15-A. Selection for appointment to the post by contract recruitment. -
Notwithstanding anything contained in these rules, contract appointments to the post will be made subject to the terms and conditions given below: -
(I) CONCEPT. -(a) Under this policy the Junior Engineer (Civil) in Department of Public Works, H.P. will be engaged on contract basis initially for one year, which may be extendable on year-to-year basis:
Provided that for extension/renewal of contract period on year-to-
year basis the concerned HOD shall issue a certificate that the service and conduct of the contract appointee is satisfactory during the years and only then his period of contract is to be renewed/extended.
(b) POST FALLS WITHIN THE PURVIEW OF HPSSSB.- The Engineer-in-Chief, after obtaining the approval of the Government to fill up the vacant posts on contract basis will place the requisition with the concerned recruiting agency i.e. H.P. Subordinate Services Selection Board, Hamirpur.
(c) ...........
(d) The selection will be made in accordance with the eligibility conditions prescribed in these Rules.::: Downloaded on - 31/01/2022 23:25:53 :::CIS 17
(II) CONTRACTUAL EMOLUMENTS. -The Junior Engineer (Civil) appointed on contract basis will be paid consolidated fixed contractual amount @ Rs.14,100/- P.M. (which shall be equal to minimum of the pay .
band + grade pay of the post). An amount of Rs.430/-, (equal to 3% minimum of pay band + Grade Pay of the post) as annual increase in contractual emoluments for the subsequent year(s) will be allowed, if contract is extended beyond one year.
(III) .............
(IV) SELECTION PROCESS : (a) FOR THE POSTS FALLING WITHIN THE PURVIEW OF HPSSSB.-Selection for appointment to the post in the case of contract appointment will be made on the basis of viva-voce test or it consider necessary or expedient by a written test or practical test, the standard/syllabus etc. of which will be determined by the concerned recruiting agency i.e. H.P. Subordinate Services Selection Board, Hamirpur.
(b) ..............
(V) ..............
(b) ..............
(VI) AGREEMENT.- After selection of a candidate, he/she shall sign an agreement as per Annexure-B appended to these Rules.
(VII) TERMS AND CONDITIONS. (a) The contractual appointee will be paid fixed contractual amount of Rs.14100/- (which shall be equal to minimum of the pay band + grade pay of the post). The contract appointee will be entitled for increase in contractual amount of Rs.430/-, {3% minimum of the Pay band + Grade Pay of the post} as annual increase for further extended years and no other allied benefits such as senior/selection scales etc. will be given.
(b) The service of the Contract Appointee will be purely on temporary basis.
The appointment is liable to be terminated in case the performance/conduct of the contract appointee is not found satisfactory.
::: Downloaded on - 31/01/2022 23:25:53 :::CIS 18(c) Contract Appointee will be entitled for one-day casual leave after putting one month service. This leave can be accumulated up to one year. No leave of any other kind is admissible to the contract appointee. He/She .
shall not be entitled for Medical Re-imbursement and LTC etc. only maternity leave will be given as per rules.
(d) Unauthorized absence from the duty without the approval of the Controlling Officer shall automatically lead to the termination of the contract. Contract Appointee shall not be entitled for contractual amount for the period of absence from duty.
(e) An official appointed on contract basis who have completed five years tenure at on place of posting will be eligible for transfer on need based basis, wherever required on administrative grounds.
(f) Selected candidate will have to submit a certificate of his/her fitness from a Government/Registered Medical Practitioner. Women candidate pregnant beyond 12 weeks will temporarily unfit till the confinement is over. The women candidate will be re-examined for the fitness from an authorized Medical Officer/Practitioner.
(g) Contract appointee will be entitled to TA/DA, if required to go on tour in connection with his /her official duty at the same rate as applicable to regular official at the minimum of the pay scale.
(h) Provisions of service Rules like FR, SR, Leave Rules, GPF Rules, Pension Rules and Conduct Rules etc. as are applicable in case of regular employees will not be applicable in case of contract appointees. They will be entitled for emoluments etc. as detailed in this column."
18. The above quoted rules are not fortuitous. Thus, petitioners having been appointed on contract basis cannot claim any right over and above the conditions on which they have accepted appointments. Though the petitioners have specifically contended that under service jurisprudence, they, after appointments, have attained the status, yet no factual or legal foundation has been made out. Even otherwise, the petitioners cannot have any right of permanency to be attached to their contract ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 19 employment, which was for the limited period and subject to termination at any time at the option of employer on happening of administrative exigencies and this condition was .
expressly contained in the appointment letters issued to the petitioners vide condition No. 22 as noticed above. In the given facts of the case, the claim of petitioners to protection of Article 311 is untenable. We find it apt to reproduce the observations made in paragraph 43 of Secretary, State of Karnataka and others vs. Uma Devi (3), and others (2006) 4 SCC 1:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 20 no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do .
not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
19. Next contention of the petitioners is that a new concept has emerged in service jurisprudence which entitles them to be considered sympathetically. In support of their contention, the petitioners have laid stress on the facts that their appointments were not result of any fraud or misrepresentation and they at least were not accessory to any such immorality. It has been contended that in almost identical circumstances, the Hon'ble Apex Court has protected the rights of the similarly situated persons by taking a sympathetic view in their favour. Reliance in this behalf has been placed on Vikas Pratap Singh Vs State of Chhattisgarh and others: 2013(14) SCC 494, Union of India Vs Kuldeep Kumar and others: 2014 SCC online Del 3873 and Anmol Kumar Tiwari and others Vs State of Jharkhand and others: 2021 (5) SCC 424.
20. In our considered view, the reliance placed by the petitioners on aforesaid judgments is misplaced for the reasons that petitioners are merely contract employees which fact was not before their Lordship's while delivering the judgments in above noticed cases and also with due deference to the aforesaid judgments, the same cannot be used as precedents. Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
This empowers Supreme Court to declare the law. The statements of the Court on matter other than law may have no binding force as the facts of two cases may not be similar.
Thus, what is binding is the ratio of decision and not any finding of fact. Reference in this behalf can be made to paragraph 21 of the judgment passed by the Hon'ble Supreme ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 21 Court in Fida Hussain and others vs. Moradabad Development Authority and another (2011) 12 SCC 615, wherein it has held as under:
.
"21. It is now well settled that a decision of this Court based on specific facts does not operate as a precedent for future cases. Only the principles of law that emanate from a judgment of this Court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Article 141. However, it the question of law before the Court is the same as in the previous case, the judgment of the Court in the former is binding on the latter, for the reason that the question of law before the Court is already settled. In other words, if the Court determines a certain issue for a certain set of facts, then, that issue stands determined for any other matter on the same set of facts."
21. In none of the above referred cases, the action of the authorities/respondents have been set aside on any ground whatsoever. The reliefs have been granted in peculiar circumstances of the cases on sympathetic grounds. To determine whether a decision has declared law, it cannot be said to be a law when a point is disposed of on concession and what is binding only is the principle underlying the decision. To support this view, reference can be made to the judgment of three Judge Bench of Hon'ble Supreme Court in the case of Jigya Yadav vs. CBSE, reported in (2021) 7 SCC 535, in which it has been held that where the Court notices that applicable law (including rules etc.) does not permit the ground for a particular relief, but still grants reliefs on sympathetic grounds, such decision cannot be treated as precedence.
22. Another contention of petitioners that the judgment in Puneet Sharma's case could not be applied retrospectively is wholly misconceived. The Supreme Court only interprets and declares law, therefore, such interpretations unless specifically declare "prospective overruling", always have retrospective effect. Moreover, judgment in Puneet Sharma came to be passed when the challenge made by Graduate Engineers to rejection of their candidature, in the same process which selected the petitioners, was still pending adjudication.
::: Downloaded on - 31/01/2022 23:25:53 :::CIS 2223. As regards objection of petitioners that this Court vide its judgment dated 05.07.2021 had not specifically directed respondent No.3 to revise the merit list and said .
respondent being only recruiting agency had become functus officio after completion of selection process and also that In Puneet Sharma's case, there was a specific direction to re-do the selection process, whereas the same was lacking in judgment dated 05.07.2021, we again find no merit. Noticeably, the common judgment dated 05.07.2021 of this Court in petitions of Graduate Engineers as also the order dated 20.09.2021 passed in CMP No. 9543 of 2021 have attained finality. It being so, respondents were under clear mandate to implement the judgment in Puneet Sharma's case. The ratio of which was declared to apply mutatis mutandis to all the cases decided through common judgment dated 05.07.2021. This fiat was issued after specifically holding that the parties were at ad idem on the issue in question in the petitions by the Graduate Engineers being squarely covered by the judgment rendered by the Hon'ble Apex Court in Puneet Sharma's case supra. In view of this position, the contention of petitioners, as noticed above becomes meaningless and cannot be accepted especially in light of the following specific averments made by petitioners in paragraph 18 of the petition:
"18. That at this stage it may be pointed out that the present petitioners do not intend to challenge the appointments being offered vide office order dated 25.09.2021 (ANNEXURE P-13) as per the revised recommendation made by respondent No.3 in consequence to common judgment dated 05.07.2021 (ANNEXURE P-10), which is claimed to be based on the Apex Court decision dated 07.04.2021 (ANNEXURE P-9) in Puneet Sharma's case, for the reason that the petitioners herein form a distinct class."
24. The contention of the petitioners that they were not made parties in the petitions of Graduate Engineers and thus could not be divested of their employment also deserves ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 23 to be rejected for the reason, firstly that one of the petitioners was an intervener in Graduate Engineers petitions and secondly, it is no-where the case of the petitioners that .
they were not aware about the rejection of candidature of Graduate Engineers by the HPSSC and consequent filing and continuance of petitions against such rejection by the Graduate Engineers. Even otherwise, when the judgment dated 05.07.2021 of this Court has attained finality and has remained unchallenged even by the petitioners, it does not lie in their mouth to plead any prejudice on account of their non-impleadment in aforesaid petitions.
25. Petitioners have contended that the judgment in Graduate Engineers cases did not ipso facto bind the Government and thus respondents No. 1 and 2 were to apply their independent mind with respect to its implementation. It has further been argued that before taking a decision to implement the judgment of this Court, respondents did not afford any opportunity to the petitioners of being heard. We are not in agreement with this contention of the petitioners. As already held by us, there was a clear mandate of this Court that ratio of Puneet Sharma's case clearly applied to the facts of the cases of Graduate Engineers and the said judgment was to be applied mutatis mutandis to such cases as decided by this Court. Further, the order dated 20.09.2021 in CMP No. 9543 of 2021 had left no doubt in any one's mind about the import of the judgment dated 05.07.2021 passed by this Court. In our considered opinion, in view of the clear directive of this Court, the respondents had only two options either to assail the verdict or to implement it in letter and spirit. Respondents having chosen the latter, had no occasion to have any further deliberation than to implement the judgment as it is. As regards the grievance of the petitioners having been denied the right of hearing, we find that in the given facts and circumstances especially the contractual nature of their appointments, ::: Downloaded on - 31/01/2022 23:25:53 :::CIS 24 neither such exercise was required nor has caused any prejudice to the petitioners. In any case, the petitioners have been afforded sufficient opportunity by this Court to address .
their grievances, but they have not been able to persuade us as to the prejudice, if any, caused to them by denying them opportunity of hearing by respondents No. 1 and 2.
26. Lastly, the petitioners would contend that they could be considered against existing 75 vacancies of JE (C). Admittedly, the vacancies advertised vide post code 695 by HPSSC have been filled. Other subsequent vacancies, if any, can neither be made part of this adjudication nor do we hold such jurisdiction in exercise of our restrictive powers of judicial review. To do so will mean foreclosure of rights of unknown number of eligible persons.
27. In view of the discussion made hereinabove, we find no merit in these petitions and the same are accordingly dismissed with no order as to costs. Pending application(s), if any, also stand disposed of.
(Tarlok Singh Chauhan)
Judge
December 14, 2021 (Satyen Vaidya)
(naveen) Judge
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