Virender Singh, J
1. Petitioners have invoked the extraordinary writ jurisdiction of this Court, by filing the present petition, under Article 226 of the Constitution of India,
seeking the following reliefs:Â
i) The respondents may very kindly be directed to consider the petitioners as members of service in the cadre of Lecturers (School Cadre) and to assign them
seniority as per Rules from the date of their appointment.
ii) That the respondents may kindly be directed to give same pay scale to the petitioners as is being paid to the regular Lecturers (School Cadre) alongwith
increment an admissible under the law on completion of one year of service and arrears thereof be paid to the petitioners alongwith interest.
iii) That the petitioners may kindly be given the leave and other service benefits as is being given to the regular appointed Lecturers (School Cadre). The
petitioner may also be held entitled for all the allowances which are being paid to the regular teachers/ Lecturers (School Cadre) and after allowing the
petitioners the same allowances as is admissible to the regular Lecturers (School Cadre), the respondents may be directed to pay the same alongwith interest to
the petitioners.
iv) That the respondents may kindly be directed to deduct the amount from the salary of the petitioners towards Contributory Provident Fund from the date of
their initial appointment.
v) That the contract which has been signed by the petitioners may be held illegal to the extent it deprives the petitioners from their rights being against the law
and public policy.
vi) That the respondents may kindly be burdened with costs.
2. Brief facts, leading to the filing of the present writ petition, may be summed up, as under:Â
2.1. Respondent No.1 has advertised 86 posts of Lecturers (School Cadre) in the subject of Mathematics, Physics, Chemistry and Biology, on
28.8.2008, vide advertisement No.13 of 2008. Petitioners, considering them to be eligible, for being appointed, against the said posts, have applied, in
response to the said advertisement notice.
2.2. The Himachal Pradesh Subordinate Selection Board Hamirpur, was the recruiting agency. In response to their applications, petitioners were
called for interview. They have qualified the screening test and were called for personal interview, which was held on 21.07.2010.
2.3. Thereafter, Himachal Pradesh Subordinate Selection Board, Hamirpur, vide letter dated 28.8.2010, recommended the petitioners for appointment.
Consequently, those recommendations were accepted by the Government and the petitioners were appointed in their concerned disciplines on contract
basis.
2.4. All the petitioners have joined the services, as Lecturer (School Cadre), on contract basis. As per the appointment letter, they all have been
appointed, as Lecturer (School Cadre), on contract basis, in the pay scale of Rs.10300/Â + Rs.4200/Â Grade pay, total Rs.14500/Â per month.
2.5. In addition to this, the petitioners have been held entitled to annual increase in contractual amount @ 3% of the minimum of pay Band + Grade
Pay, as annual increment. The petitioners, being the contractual appointees, were also held entitled to one day casual leave after putting one month
service and no other leave of any kind was admissible to them.
2.6. It is the further case of the petitioners that they have been appointed, after following the due selection process. Thereafter, as per the notification
dated 11.6.2009, the Recruitment and Promotion Rules, for the post of Lecturers (School Cadre) were formulated, by exercising the powers under
Article 309 of the Constitution of India. The petitioners have relied upon Rules 10, 11 and 15 of the said Recruitment and Promotion Rules.
2.7. It is the further case of the petitioners that Rule 15 of the Recruitment and Promotion Rules, provides that selection for appointment to the post, in
case of direct recruitment, shall be made on the basis of vivaÂvoce test and if the recruitment agency considers necessary or expedient, written test
or practical test may be held.
2.8. According to the petitioners, by inserting Rule 15Â A, the mode of appointment, on contract basis, has been incorporated.
2.9. It is the specific case of the petitioners that they have been appointed, by following the selection process, which has been provided for regular
appointees, but, they have not been paid the salary, at par with the regular employees, nor any service benefits have been given to them. The selection
process was initiated, in the year 2008, and the Recruitment and Promotion Rules were notified on 11.6.2009.
3. On the basis of the above facts, the petitioners have sought the relief, as claimed, in the writ petition.
4. When put to notice, the respondents have filed the reply, by taking the preliminary objections that the writ petition is not maintainable. According to
the respondents, the State of Himachal Pradesh is following the contract policy and contract appointment has also been incorporated in the
Recruitment and Promotion Rules, for all categories, including Post Graduate Teachers, by direct recruitment.
5. Reasserting the fact that Rule 15ÂA has been inserted, in the Recruitment and Promotion Rules, it is the stand of the respondents that the service
benefits are being given to all the lecturers, in accordance with the provisions, made in the Recruitment and Promotion Rules.
6. Asserting the fact that seniority can only be assigned to the petitioners, when their services will be regularized, the case of the respondents is that
the claim of the petitioners for seniority, granting financial benefits and leave, at par with the regular counter part, is not legally sustainable.
7. On merits, the factual position, with regard to issuance of the notification and appointment of the petitioners, has not been disputed, but, according to
respondent No.1, petitioners were appointed, on contract basis and contract is being renewed on year to year basis. The benefits, as per the contract,
are stated to have been given to them.
8. On all these submissions, the respondents have prayed that the writ petition, may kindly be dismissed.
9. By moving CMPÂT No.465 of 2024, the petitioners have placed on record the regularization order issued by the respondentÂdepartment, during
the pendency of the present writ petition, regarding the similarly situated persons.
10. Advertisement No.13/2008 (Annexure PÂ1), against which the petitioners had applied, was issued on 28.08.2008. Although, in this advertisement
notice, it has clearly been stipulated that the said recruitment is on contract basis, however, in the Himachal Pradesh, Higher Education Department,
Lecturer (School Cadre) ClassÂIII (nonÂGazetted) Recruitment and Promotion Rules, 2009, (hereinafter referred to as ‘the R & P Rules’),
there was no provision for appointment on contract basis.
11. The R & P Rules were amended only on 11.6.2009 and for the first time, in Rule 10 of the R & P Rules, the provisions regarding the appointment
on contract basis has been introduced. Rule 10 of the R & P Rules, is reproduced, as under:Â
“10. Method of recruitment whether by direct recruitment or by promotion, deputation, transfer and the percentage of posts to be filled in by various
methods. (i) 50% by promotion (ii) 50% by direct recruitment on regular basis or on contract basis.â€
12. The respondents, in the reply, have taken a very strange stand, by taking the benefit of Rule 15ÂA of the R & P Rules, whereas the R & P Rules
were amended on 11.6.2009 and the advertisement was issued on 28.8.2008. There is nothing on the record to justify that on the date of issuance of
advertisement notice on 28.8.2008, there was any provision in the R & P Rules, under which, a person could be appointed on contract basis.
13. Reply to the writ petition has not been filed by a layman, but, by the Director Higher Education, who has simply asserted the fact that since, the
posts were advertised on contract basis, as such, their appointments have rightly been made on contract basis.
14. In reply to para 7, it has been admitted that the requisite amendment, enabling the State Government to recruit the employees, was incorporated in
the R & P Rules, only on 11.6.2009. Relevant para 7 of the reply is reproduced as under:Â
“7. That in reply to this para it is respectfully submitted that at present State is following Contract policy and Recruitment and Promotion Rules of all
categories are also in line with the contract policy and recruitments are being made on contract basis. The necessary provisions in Recruitment and Promotion
Rules were made on 11Â6Â2009. The annual increase of Rs. 200 was admissible initially which has been raised to Rs. 440 after revision of pay scale. While
offering appointment to the petitioners all the conditions of contract appointment were mentioned in their appointment offer. Accordingly, the petitioners have
signed contract agreements accepting the terms and conditions without any reservation. Hence, any claim at par with regular appointees is neither justified nor
sustainable. Contents of preliminary submission are also re iterated and not being reproduced to avoid repetition.â€
(self emphasis supplied)
15. At the time of issuance of advertisement, in the R & P Rules, which were in force, there was no provision for appointment on contract basis, as
such, the act of the respondents, to appoint the petitioners on contract basis, is not sustainable in the eyes of law.
16. A Division Bench of the Court, while deciding LPA No.21 of 2013, titled as State of H.P. & Others versus Ravinder Kumar, has observed, as
under:Â
4. Observations:
4(i) It is not in dispute that even though the State Government on 12.12.2003 had requested all the Heads of Departments to amend ClauseÂ10 of R&P Rules, for
including contractual appointment as one of the mode of recruitment in accordance with the decision taken by the State, yet, Recruitment & Promotion Rules for
lecturers (school cadre) were not amended in tune with 12.12.2003 decision of the State Government. The mode of recruitment under the Recruitment &
Promotion Rules for appointment lecture (School cadre) continued to be only on regular basis. It was only on 20.9.2010, that ClauseÂ10 of the R&P Rules for the
posts in question was amended and notified, incorporating contractual appointments, as one of the mode of recruitment.
4(ii) The college in question was taken over by the State on 6.2.2007. In terms of notification dated 25.8.1994, services of the eligible staff were also required to
be taken over w.e.f. 6.2.2007. State though had taken over the services of the staff of the Kanwar Durga Chand Memorial College, Jaisinghpur only on 21.6.2010.
Fact remains that services of writ petitioners were taken over prior to amendment of R & P Rules.
The services of the petitioners were required to be taken over in terms of Recruitment & Promotion Rules, which were in existence on the date of taking over the
college i.e. 6.2.2007. The R&P Rules as they existed on 6.2.2007 did not provide for contractual appointments. The Rules only provided for regular recruitments.
Service of petitioners were taken over w.e.f. 6.2.2007. College itself was taken over on 6.2.2007. Therefore, clause providing appointment on contractual basis
inserted in the R&P Rules by way of amendment of Rules on 20.09.2010, could not be retrospectively applied to the petitioners.
It is apt to refer the judgment passed by this Court, in CWP No.1811 of 2008, titled Dev Raj Vs. State of H.P & others, relevant segment reproduced hereinafter:Â
“25...........Government appointments are made in accordance with the Rules framed under Article 309 of the Constitution of India. When such Rules are framed
the Government is expected to act and make appointments in accordance with the Rules. If the Rules do not permit the Government to make appointment on
contract basis they must be made on regular basis.
4(iii) The notification dated 25.8.1994, under which State Government took over the privately managed colleges as well as services of staff working there,
provides for granting them Government scales as admissible to their respective corresponding categories. ClauseÂ9 of this notification reads as under:Â
“9. Provided that services of only those employees will be taken over who furnish a written acceptance on nonÂjudicial paper duly attested by the competent
authority to the effect that they are willing to be absorbed in Government services on the terms and conditions laid down in these rules.â€
There is no provision in the above notification for taking over services of staff of privately managed colleges on contract basis, more so, in the facts of instant case,
in view of Recruitment and Promotion Rules of Lecturer (School cadre) as they existed on 6.2.2007 i.e. the date of take over, whereunder no provision for
appointment on contract basis was there, regular recruitment was the only prescribed mode.
17. Even otherwise, the respondentÂdepartment, vide office order dated 18.6.2024, duly placed on record by the learned Additional Advocate
General, has extended the benefit of regular appointment to the similarly situated persons, who were initially appointed on contract basis
18. Considering the above factual position, the present petition is allowed with costs and the respondents are directed to extend the benefit of deemed
regular appointment to the petitioners, with effect from the date of their initial appointment/joining, on contract basis, along with all consequential
benefits, however, monitory benefits are restricted to a period of three years immediately preceding to the date of filing of the petition. Costs of the
petition are assessed as Rs.5,000/Â.
19. It is made clear that the outstanding amount, as ordered, be released to the petitioners, within a period of two months from today, failing which, the
respondents shall be liable, not only to pay the amount, in question, but, also interest thereupon, at the rate of 9% per annum, from the date of their
entitlement i.e. three years proceeding to the date of filing of the petition till its realization.
20. Pending application(s), if any, shall also stand disposed of.
