Shelja Kaushal vs State of H.P. and Others

Kurian Joseph, C.J.—This writ petition is filed with the following prayer:

B. That the respondent may be directed to appoint the petitioner on regular basis and consider the matter afresh as per the law settled by this Hon''ble H.P. High Court in CWP No. 3912/2009 titled as Joginder Kumar v. State of Himachal Pradesh.

An identical issue was considered by this Court in the judgment dated 6th May, 2010 rendered in CWP No. 3912 of 2009, referred to above. The text of the judgment reads as follows:

The issue raised in these writ petitions pertains to the claim made by the petitioners for appointment on regular basis as Trained Graduate Teachers (Medical/Non medical). The selection process started in the year 2002 when Subordinate Service Selection Board invited applications on 5.7.2002 for appointment as regular teachers. Pursuant to the said applications, the petitioners were called for written test on 15.9.2002. Having come out successful in the written test, they were called for interview between 17.10.2002 to 29.11.2002. On the basis of the merit in the written test and in the interview, a select list was prepared and the names were dully recommended to the Government for appointment as regular TGT (Medical/Non medical). That recommendation was made by the Subordinate Service Selection Board on 10.12.2002.

Along with the selection to the posts of TGT (Medical/non Medical), there were simultaneous recruitment process for appointment to other posts like TGT (Arts, Crafts) and Shastri etc. It is not in dispute that in the case of all such teachers, the candidates selected and recommended by the Subordinate Service Selection Board were appointed on regular basis.

According to the petitioners, to their great misfortunes, a vigilance enquiry was initiated against the Subordinate Service Selection Board and hence no action was taken by the Government on the recommendation made by the Board. We are informed that subsequently the enquiry was concluded and there was no incriminating material as far as the selection is concerned.

Be that as it may. For one reason or the other, the Government had not taken any action on the recommendation thus made by the Board for appointment of the petitioners as regular teachers. It appears that some of the petitioners had approached the erstwhile Tribunal for compelling the Government to make appointments against the available vacancies. It was their case that having undergone a selection process and having been duly recommended, they had a right to have legitimate expectation for regular appointment and that expectation cannot prolong indefinitely. In the meanwhile, there appears to be change of mind of the Government and the petitioners were appointed but only on contract basis. Such appointment on contract basis was made during the years 2008-2009. It is pertinent to note in this context that the Recruitment and Promotion Rules at the time of such engagement on contract basis did not contemplate any appointment on contract basis. The required amendment for appointment on contract basis in the R&P Rules was made only on 22.10.2009. All the petitioners, it is not disputed, had been appointed prior to the said amendment permitting the Government to make the appointments on contract basis.

Learned Senior Addl. Advocate General contends that the petitioners having been offered appointment on contract basis and the petitioners having accepted the appointment on contract basis they cannot lateron turn around and contend that they are otherwise entitled to regular appointment. It is also submitted that unless there are vitiating factors like fraud, misrepresentation etc. a contract duly entered between the parties cannot be set at naught or varied.

Learned Counsel for the petitioners on the other hand contend that the petitioners having been waiting for more than seven years legitimately expecting appointment on the basis of their place in the duly prepared select list and the same having been recommended to the Government for appointment and their compeers in other disciplines having been appointed as teachers, the teachers thought it fit to accept the offer at the first instance and then take up their legitimate grievance thereafter. It is also submitted that the petitioners have been subjected to the hostile discrimination in the sense that all those who competed along with the petitioners in various other disciplines in the very same selection process have been appointed on regular basis. Yet another contention is that the R&P Rules at the relevant time did not permit the appointment of teachers on contract basis and Rules were amended in that regard only on 22.10.2009 before which all these appointments/offers for appointments have already been made (in some of the cases the petitioners have not accepted the offer of appointment on contract basis and in those cases, this Court had already issued interim direction not to fill up such vacancies).

Learned Counsel for the petitioners have invited reference to the decisions reported in K. Manjusree Vs. State of A.P. and Another, and S.S. Balu and Another Vs. State of Kerala and Others, to the effect that (i) the vacancies that existed prior to the amendment of the Rules should be filled up on the basis of the unamended Rules and (ii) there cannot be any discrimination among the teachers who participated in the same selection process, as regular and contract teachers.

Having regard to the facts and circumstances and some of the legal issues emerging from the factual matrix as above, we are of the view that the matter should be considered by the Government having regard to the various contentions taken by the petitioners. Therefore, we dispose of these writ petitions with the following directions:

There will be a direction to the first respondent to consider afresh the issue of appointment of the petitioners in the light of the contentions, as referred to above and pass orders in the matters in accordance with law and justice within a period of two months from the date of production of a copy of this judgment. We make it clear that it will be open to the petitioners to make appropriate representation(s) in case they intend to make supplementary submissions other than that what we referred to above. We also make it clear that it will be open to those petitioners who have not yet joined duty, to join duty based on the offer of appointment on contract basis, subject to the outcome of the decision thus taken by the Government and needless to say without prejudice to their contentions.

The petitioner submits that she is similarly situated. Therefore, there will be a direction to the first respondent to consider the case of the petitioner here also in the light of the judgment referred to above within a period of three months from the date of production of a copy of this judgment along with a copy of the writ petition by the petitioner.

The writ petition is disposed of, so also the pending applications, if any.