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AIR 2003 SUPREME COURT 4062 [ = 2003 (5) SCALE 73] Civil Appeal Nos.4281-4289 with 4280, 4279, 4278 of 2003 D.D. 5.6.2003 SHIVARAJ V.PATIL AND ARIJIT PASAYAT, JJ.

State of Uttaranchal & Ors.

...

Appellants

...

Respondents

Vs. Sidharth Srivastava & Ors.

(A) Constitution of India, Art.323 – U.P. Reorganisation Act (29 of 2000).S. 78(4) – Scope – Selection of candidates by U.P. Public Service Commission (U.P. P.S.C.) prior to formation of State of Uttaranchal – Report sent by U.P.P.S.C. to Governor of U.P. and Governor of Uttaranchal – Need not be laid before Legislative Assembly of State of Uttaranchal under S.78 – State of Uttaranchal have to constitute its own Public Service Commission – Candidates selected by UPPSC prior to formation of State of Uttaranchal could not be appointed by State of Uttaranchal as S.78 does not protect said selection, 831(S/B), made by UPPSC. W.P.Nos.829 (S/B), 795 (S/B), 803 (S/B), 818 (S/B), 830 (S/B), 831 (S/B), 847(S/B), 857 (S/B), 4271 (S/S) of 2001. D/- 6-11-2001 (Uttaranchal) Reversed. New State of Uttaranchal formed on the terms and conditions contained in the Act. The UPPSC of the existing State of Uttar Pradesh shall be the Public Service Commission for the State of Uttar Pradesh as already stated above. It is not the Public Service Commission for the State of Uttaranchal. If it were to be so, provisions could have been made in S.2 read with S.78 of the Act to include State of Uttaranchal within the domain of UPPSC till such time Uttaranchal State Public Service Commission came into existence. Hence, the selection of the candidates made by UPPSC cannot be accepted as selection made for the State of Uttaranchal in the light of S.78(4) of the Act. For the immediate purpose, S.78 of the Act dealing with the Public Service Commission has to be looked into carefully. Under S.78(4), there is no legislative command or compulsion to the Governor of State of Uttaranchal to place report submitted by UPPSC along with the memorandum explaining why advice of the Commission was not accepted. The reason

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as to why the Parliament provided specifically that it shall not be necessary to cause such report or any such memorandum to be laid before the Legislative Assembly of the State of Uttaranchal would be that the UPPSC not being a joint Commission and it being a Public Service Commission for the State of Uttar Pradesh under S. 2(e) read with S.78(1) of the Act, its report could not be placed before the State Legislature of Uttaranchal. State of Uttaranchal was not in existence when the UPPSC initiated the selection process for the posts in question and no functions could be rendered by pre-existing UPPSC in respect of new State of Uttaranchal. It cannot be said that there was no prohibition from placing the report sent by UPPSC to the Governor of Uttaranchal under S. 78 and memorandum containing explanation before the State Legislature of Uttaranchal. A clear distinction can be seen in the said provision. First part of the provision speaks of UPPSC sending the report to both the Governors and second part requires the Governor of Uttar Pradesh alone to cause the report and the memorandum to be laid before the Legislature of State of Uttar Pradesh only. The express parliamentary intention that such a report need not be laid before the Legislative Assembly of the State of Uttaranchal makes the position clear that the Report of UPPSC is not binding upon the State of Uttaranchal. The State of Uttaranchal would have to constitute its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under Art.315. Further, appointment to services in the State of Uttaranchal shall have to be in consonance with Articles 315, 320 and 323 of the Constitution consistent with autonomy and the freedom of executive action enjoyed by newly born State of Uttaranchal Part VIII of the Act contains Ss. 72 to 78 dealing with services; S. 72 relates to AllIndia Services and Ss. 73 to 76 with other services; S.77 gives power to Central Government to give directions. Provisions are made in S.78 as to the State Public Service Commission. In this part, provisions are made for protection of service conditions and services of the persons already in service. There is no such provision made in S.78 protecting the selection made by the UPPSC prior to the formation of the new State of Uttaranchal to contend that the candidates selected by the UPPSC shall be appointed by the State of Uttaranchal. Under these circumstances, the communication of the Government of Uttar Pradesh or UPPSC forwarding list of selected candidates to the appellant-State has no legal sanctity or force to bind the State of Uttaranchal so as to compel it to appoint the non-official respondents.

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W.P.Nos. 829(S/B), 795(S/B), 803(S/B), 818(S/B), 830(S/B), 831(S/B), 847(S/B), 857(S/ B), 4271(S/S) of 2001 D/- 6-11-2001 (Uttaranchal) Reversed.

[Paras 17, 31)

A person placed in the merit list of selected candidates has no indefeasible right to be appointed as held by the Supreme Court. No doubt, there cannot be an arbitrary refusal to appoint a selected candidate. In the instant case, the action of the State of Uttaranchal must be judged with reference to the creation of new State and its functions, obligations and duties to make appointments to the public services within the State on the basis of the recommendations of the Public Service Commission of the State. As is clear from the facts in the instant case there was no advertisement by the State of Uttaranchal, no rules were framed by the State of Uttaranchal, no selection was made by Public Service Commission for the State of Uttaranchal. Hence, the State of Uttaranchal was not obliged to make appointments of the non-official respondents on the basis of the selection made by the UPPSC even though the recommendations were forwarded to the State of Uttaranchal. On the facts it is not a case where the Government of Uttaranchal has refused to make appointments arbitrarily.

[Para 21]

If any appointments are made by the State of Uttaranchal contrary to law and the stand taken by the State of Uttaranchal and if there is any mala fide, they may affect such appointments on a proper challenge by the aggrieved persons but that does not help the non-official respondents to get them appointed by the State of Uttaranchal.

[Para 22]

(B) U.P.Reorganisation Act (2000), S.78 – Powers of Govt. – Candidates selected by U.P. Public Service Commission prior to formation of State of Uttaranchal – Recommendation forwarded to Govt. of Uttaranchal – Not binding on State of Uttaranchal – Denial, by said Govt. to appoint said candidates on ground that (i) new reservation policy of State of Uttaranchal is different from that of State of U.P. and (ii) practical and legal difficulties “in such a situation” in giving appointments to said candidates – Not illegal – Mere non-reference or omission to mention S.78(4) in said order, does not take away its legal effect – In circumstances question of applying reservation policy as embodied in U.P. Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act (1994) would not arise. W.P.Nos.829(S/B), 795(S/B),

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803(S/B), 818(S/B), 830(S/B), 847(S/B), 857(S/B), 4271(S/S) of 2001, D/- 6-11-2001 (Uttaranchal), 831(S/B), Reversed.

The separate State of Uttaranchal came into existence on 9-11-2000. U.P. Government forwarded the recommendations of U.P. Public Service Commission (UPPSC) in respect of posts in Hill Cadre to the Government of Uttaranchal. On

29-8-2001, the Government of

Uttaranchal issued the order not to appoint the candidates selected by the UPPSC prior to formation of State of Uttaranchal mentioning two reasons that (1) the new reservation policy of the State of Uttaranchal is different from that of U.P. and (2) practical and legal difficulties ‘in such a situation’ in giving appointments to the candidates recommended by the UPPSC. It is true that there is no express reference to S.78(4) of the Act in the aforementioned order. But reading the order as a whole, it shows that after the constitution of the State of Uttaranchal, there has been change in the reservation policy, there were various miscellaneous and legal difficulties in giving appointments to the candidates selected by the UPPSC as forwarded by the Government of Uttar Pradesh and that after thorough consideration, a decision was taken not to appoint the candidates recommended by the UPPSC in various departments of the Government of Uttaranchal. This being the position, while passing the order, the provision of S.78(4) and other provisions of the Act and the relevant constitutional provisions could be said to be kept in mind when there was thorough consideration before taking a decision as stated in the order. Mere non-reference or omission to mention of S.78(4) in the order, does not take away its legal effect. The Authorities have only elaborated in affidavit the reasons to support the said order. It cannot be said that the Authorities tried to justify the aforementioned order by subsequent fresh reasons. The finding by the High Court that the reasons cited by the State Government of Uttaranchal in the order dated 29-8-2001 were not valid, held was not proper. This part, having regard to clear constitutional and legal position that the selections made by UPPSC are not binding on the State of Uttaranchal on the basis of the facts that are not in dispute. W.P.Nos.829(S/B), 795(S/B), 803(S/B), 818(S/B), 830(S/B), 847(S/B), 857(S/B), 4271(S/S) of 2001, D/- 6-11-2001 (Uttaranchal), 831(S/B), Reversed. [Paras 19,28,31]

It cannot also be said that the State of Uttaranchal has no right to have its own reservation

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policy to meet the requirements of the new State having due regard to various factors. Moreover, when the selection made by the UPPSC itself, is not for the State of Uttaranchal and it has no legal or binding effect to compel the State of Uttaranchal to appoint the selected candidates, the question of applying reservation policy as embodied in U.P. Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 does not arise.

[Para 20]

The plea that the change in reservation policy subsequent to the selection cannot come in the way of earmarked vacancies for the Hill Region of U.P. which became an integral part of the State of Uttaranchal would not be tenable, as the selection made by UPPSC is not binding on the State of Uttaranchal. The rules in force at the time of initiation of the selection process have to be applied in making selection but that does not help the non-official respondents in seeking appointments by the State of Uttaranchal on the basis of selection made by UPPSC. [Para 23]

Merely because the recommendations received by the erstwhile State of Uttar Pradesh had been sent to State of Uttaranchal and they were not reversed by the Governor for being placed with the reasons before the Assembly of State of Uttar Pradesh under S.78, it cannot be said that recommendations made by UPPSC were binding on Govt. of Uttaranchal. [Para 29]

Cases Referred: 1. AIR 1978 SC 851: (1978) 2 SCR 272 – M.S. Gill v. Chief Election Commissioner, New Delhi. 2. AIR 1990 SC 405: 1990 Lab IC 369: (1990) 1 SCC 411 – P.Mahendran v. State of Karnataka 3. AIR 1990 SC 1233: 1990 Lab IC 1009: (1990) 3 SCC 157 – N.T.Devin Katti v. Karnataka Public Service Commission 4. AIR 1991 SC 1612: 1991 AIR SCW 1583: 1991 Lab IC 1460: (1991) 3 SCC 47 – Shankarasan Dash v. Union of India 5. 1993 AIR SCW 2314 : (1993) 2 SCC 573 – Asha Kant v. State of J & K.

***

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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Civil Writ Petition No.159 of 2003 (D/B) D.D. 25.11.2003 Hon’ble S.H.Kapadia C.J.& Hon’ble M.M.Ghidiyal,J.

Bharat Nandan Pandey

...

Petitioner

...

Respondents

Vs. State of Uttaranchal & Anr.

Age relaxation: The petitioner whose date of birth is 9th July 1980 applied for the post of Junior Engineer advertised on 27.11.2001 fixing 27.12.2001 as the last date for receipt of applications and appeared for the examination - As the applicant was below 21 years of age as on 1.7.2001, the cutoff date prescribed for maximum age of 40 years he was not called for interview – Being aggrieved he filed the Writ Petition – Even though the minimum age prescribed under the Recruitment Rules is 21 years of age as only cutoff date prescribing maximum age was mentioned and no cut off date prescribing minimum age was mentioned in the notification the High Court allowed the writ petition and directed to interview all the candidates who have completed minimum age of 21 years as on 27.12.2001 the last date fixed for receipt of applications.

Held: The purpose of advertisement is that the candidate should know the eligibility criteria under which they can apply – The advertisement is the projection of the Rules – In the advertisement as only the cutoff date prescribing the maximum age is prescribed and no cutoff date prescribe minimum age is mentioned the Court held that the candidate should not suffer on account of the said mistake. However, the Court directed that this decision should not be cited as a precedent.

Case Referred: (2000) 5 Supreme Court Cases 262 - Bhupinderpal Singh and others Vs. State of Punjab and others.

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ORDER

Rule. Respondents waive service. Petitioner is a diploma holder in Civil Engineering from the Government Polytechnic, Dwarahat. He completed his course in 1999. His date of birth is 9th of July, 1980. On 27th November, 2001, an advertisement was issued about vacancies in the post of Junior Engineer. As per the advertisement, the cut of date prescribing maximum age of 40 years as on 1st of July, 2001, was mentioned. However, no cut off date vis-à-vis minimum age was mentioned. On 1st of July, 2001 admittedly, the petitioner was below 21 years. However, the petitioner applied for the post because no minimum age was prescribed in the advertisement. The Admission card was also issued by the Indian Institute of Roorkee in March 2003, pursuant to which petitioner appeared for examination.

As per the advertisement, the last date for making applications as 27th of

December, 2001. At this stage, it may be mentioned that by 27th December, 2001, the petitioner had attained the age of 21 years. The petitioner did not receive the call letter for interview. On making enquiries, the petitioner was informed that the petitioner was not called for interview as the petitioner was below 21 years as on 1st of July, 2001. Being aggrieved, the present writ petition has been filed.

ARGUMENTS Learned Advocate for the petitioner pointed out that in the advertisement, there is a cut off date of 1st July, 2001, but that is in relation to maximum age. She contended that there is no cut off date vis-à-vis minimum age and therefore, petitioner ought to have been called for interview.

On the other hand, learned counsel for the Uttaranchal Public Service Commission invited our attention to the Emergency Recruitment Rules framed by the State of Uttaranchal dated 12th of November, 2001 precisely to fill in the vacancies for the post of Junior Engineers amongst other posts. It was pointed out that under the Rules, the minimum age of 21 has been prescribed and, therefore, the petitioner was not eligible to be considered by Uttaranchal Public Service Commission. It was further submitted on behalf of the Uttaranchal Public Servive Commission

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that even if the advertisement is silent on the minimum age, the Rules were specific and therefore, the petitioner was not entitled to be considered. Reliance was also placed on the judgment of the Supreme Court in the case of Bhupinderpal Singh and others Vs. State of Punjab and others reported in (2000) 5 Supreme Court cases 262.

FINDINGS On the facts and circumstances of this case, we find merit in the writ petition. Firstly, it is an admitted position that no minimum age has been prescribed/mentioned in the advertisement. The purpose of the advertisement is that candidate should know the eligibility criteria, under which, they can apply. The advertisement is projection of the Rules. In the present case, there is no cut off date prescribed under the Rules. The cut off date is given only in the advertisement i.e. 1st July, 2001, and that too only in relation to the maximum age of 40 years. In the above judgment of the Supreme Court, it has been held that if cut off date is not prescribed by the Rules, then it may be prescribed in the Advertisement failing which the last date of receiving of application will be criteria. In the present case as stated above, the cutoff date is not mentioned in the Rules. Therefore, one has to fall back on the advertisement which is silent with regard to the minimum age. It is conceded by the learned counsel for the Uttaranhal Public Service Commission that mistake has come in the Advertisement. He further submitted that Uttaranchal Public Service Commission will abide by the orders of this Court. In fact, we gave adjournment to the Uttaranchal Public Service Commission to suggest a via media to solve this problems arising on account of the mistake in the Advertisement. We do not know as to on what basis the advertisement came to be issued. No explanation has been given as to whether the advertisement was approved by the Uttaranchal Public Service Commission before it came to be published in the newspapers. Be that as it may, we do not want the candidates to suffer on account of the above mistake. However, we make it clear that the order which we propose to pass in this mater will not be cited as a precedent in future because this order is passed on account of mistake committed in he Advertisement.

We are fully conscious of the fact that our order may cause some difficulties because many candidates would come into the filed. However, we have to choose the lesser evil. We are

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informed that approximately 100 candidates might come in, if last date of receipt of application is taken as a criteria both for minimum and maximum age. The interview process is still going on. We are not directing selection of any candidate.

In the fact and circumstances of this case, following order:

ORDER (a) Uttaranchal Public Service Commission is directed to interview all the candidates who have completed the minimum age of 21 years as on 27th of December, 2001.

(b) Uttaranchal Public Service Commission shall also interview all the candidates who have reached maximum age of 40 years upto 27th of December, 2001.

(c) This order should not be cited as a precedent in future as it is passed in facts and circumstances of this case only.

Writ petition is disposed of accordingly. Office is directed not to issue copy of this order without getting writ petition duly numbered. ***

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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.45 of 2004 (S/B) D.D. 13.5.2004 Hon’ble P.C.Verma, A.C.J. & Hon’ble Rajesh Tandon, J.

Deepak Kumar & Others

...

Petitioners

...

Respondents

Vs. State of Uttaranchal & Others

Recruitment

-

Operation of the Select List:

The petitioners were among 92 successful candidates selected against 92 vacancies for the post of Assistant Engineers (Civil) in P.W.D. and Assistant Engineers (Electrical & Mechanical) in the Department of Rural Engineering Services pursuant to the examination conducted on 8.2.2002 – 61 candidates out of 92 were appointed and remaining candidates including the petitioners were not appointed – Aggrieved by the same the petitioners filed this Writ Petition – The State Government contended that quota for direct recruits 58.34% under the old C&R Rules was reduced to 50% under the new Rules of 2003 and consequently, there was reduction in the number of vacancies – The High Court in view of the fact that the select list was accepted by the State Government and partly operated allowed the writ petition and directed the respondents to issue appointment letters in favour of the petitioners in pursuance of the approved selection list published on 17.6.2003.

Held: When the recommendations in accordance with the selection made by P.S.C. were accepted by the State Government, the selectees acquire vested right and their appointments have obtained finality. More so, part of the list having been accepted, the other candidates have a right to seek writ of mandamus in pursuance of their approval by the Government.

Case referred: AIR 1991 S.C. 537 – Kumari Shrilekha Vidyarthi etc. Vs State of U.P. & Ors.

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ORDER By the present writ petition the petitioners have prayed for the issue of a writ in the nature of mandamus commanding the respondents to issue the appointment letter to the petitioners in order to merit and preference according the select list. Brief facts giving rise to the present writ petition are that the Public Service Commission, Uttaranchal thereinafter referred to as Commission, published issued an advertisement for holding Combined State Engineering Services Examination 2002 showing the vacancies for the post of Assistant Engineers (Civil) in the Public Works Department and Assistant Engineers (Electrical & Mechanical) in the Department of Rural Engineering Services and Rural Development and Panchayat Raj Departments. The vacancies were mentioned in the advertisement along with reservation. Petitioners have stated that they have also submitted their applications to the Commission to participate in the examination of Combined State Engineering Service.

According to the

petitioners written examination was held by the Commission and the candidates who passed the written examination were called for interview for final selection.

Petitioners have further

submitted that before holding the interview the Commission called for preferences for appointment in various departments from the successful candidates of combined list. Therefore, on 17.6.2003, the Commission issued a select list merit wise and on the basis of preferences given by the petitioners and other selected candidates. The same was sent to the Government for approval and thereafter appointment letters were issued to the successful candidates by the concerned departments. The contents of the select list issued by the Commission with respect to the petitioners are quoted below: [Omitted as it is in Hindi] Learned counsel for the petitioners have made a grievance that on 20.2.2004 the Public Works Department issued letter for appointment according to the list sent by the Commission to the successful candidates totaling to 61 from the 92 successful candidates against 92 vacancies. Similarly, on 12.2.2004 Department of Rural Engineering Services and Rural Development & Panchayat Raj Department have also issued appointment letter to the candidates who are lower in merit. The contents of the appointment letter are quoted below: [Omitted as it is in Hindi]

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Petitioners have submitted that when they came to know that the appointment letters have been issued to the successful candidates without following the procedure of preference and the candidates who got less marks from the petitioners were shifted to the other departments while the petitioners who are higher in merit according to the merit list issued by the Commission, then the petitioners approached the higher authorities by making their grievance. Petitioners have submitted that the action of the Government, therefore, is wholly unreasonable.

A counter affidavit has been filed by the State wherein in paragraph No.7 of the said counter affidavit it has been stated that the Public Works Department has made requisition to the Commission for conducting the examination 8.2.2002. At that time the entry quota for direct recruits was 58.34% in the prevalent “United Provinces Services of Engineers (building and road branch) class 2 Rules 1936” (as amended). The State has notified new service rules as on 25.4.2003 in which the direct entry quota is 50% of the total Cadre strength. The cadre strength for Assistant Engineer (Civil) is 193 and 19 for Assistant Engineer (E & M). Thus the direct quota for A.E(Civil) is 97 and A.E. (E&M) is 10. Only 61 vacancies in Assistant Engineer (Civil) actually exist. Therefore, appointment letters to 61 candidates in order of merit and subject to reservation policy of the State Government have been issued vide order dated 20.2.2004. It is pertinent to state here that 33 optees of Uttaranchal Assistant (Civil) and three A.E. (Civil) (permanent resident of Haridwar district are serving in Uttaranchal against the direct entry quota. Likewise 06 Assistant Engineers (E&M) optees of Uttaranchal are serving in Uttaranchal.

It was further submitted by the state Government that in AE (E&M) no vacancy exists as on date, resulting no issuance of appointment order of Assistant Engineer (E&M). The Cadre allocation has not been finalised by the Government of India till date. Finally how many officers at Assistant Engineers level out of these optees will be allotted to the State of Uttaranchal by Government of India is not known.

The State Government has further submitted that as and when the vacancies anticipated at the time of advertisement are available the candidates from the select list shall be given appointment in order of merit and subject to the reservation policy of the State Government.

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The respondents have carved out a new case in their counter affidavit against the terms of the advertisement made on 9th August 2002. The petitioners having been selected and their selection having also been approved as will appear from the select list published on 17th June 2003. Therefore, as having been approved the same cannot be a matter of change so as to cause injustice to the petitioners.

In reply to the contents of the counter affidavit filed by the respondents the petitioners have filed a rejoinder affidavit and it has been reiterated that single selection list of the Engineers were sent to the Government for approval and there is no reason not to issue appointment letters and the select list has to be accepted in toto.

The stand of the Government that the State has modified new service rules as on 25.4.2003 in which direct entry quota is 50% of the total cadre strength and cadre strength of the Assistant Engineer (Civil) is 103 and 19 for Assistant Engineer (E&M) and thus direct quota for the A.E.(Civil) is 97 and A.E.(E&M) is 10 and only 61 vacancies in A.E.(Civil) actually exists is against the advertisement. Total 89 vacancies towards A.E.(Civil) and 03 vacancies towards A.E.(E&M) has been shown towards Public Works Department and in other departments the vacancies have been shown as under: [Omitted as it is in Hindi]

We are of the opinion that when the recommendations in accordance with the selection made were accepted by the State Government, the selectees acquire vested right and their appointments have obtained finality. More so, part of the list having been accepted, the other candidates therefore have a right to seek writ of mandamus in pursuance of their approval by the Government.

In Kumari Shrilekha Vidyarthi etc.Vs State of U.P. and others reported in AIR 1992 S.C. 537, it has been held as under: “It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the

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Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with the private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind.”

We, therefore allow the writ petition. A writ of mandamus is issued directing the respondents to issue appointment letters in favour of the petitioners in pursuance of the approved selection list published on 17.6.2003. ***

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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.761 of 2004 (M/B) D.D.18.8.2004 Hon’ble Shri. V.S.Sirpurkar, C.J. & Hon’ble Shri. J.C.S.Rawat, J.

Pradeep Singh

...

Petitioner

...

Respondents

Vs. State of Uttaranchal & Others

Recruitment – Educational Qualification: The application of the petitioner who was a candidate for Uttaranchal Civil Services Examination advertised as per the advertisement fixing the last date for submission of application as 16.9.2002 was rejected as per letter dated 20.7.2004 after the petitioner cleared the preliminary examination held on 28.9.2003 and became eligible to appear for the Main Examination to be held on 26.8.2004 on the ground that the petitioner did not have the minimum qualification (Bachelor Degree) as on the last date fixed for receipt of applications – The petitioner challenged the same on the ground that when the preliminary examination was held on 28.9.2003 he was a graduate, having passed B.A. examination held on 7.7.2003 – As the petitioner was admittedly not a graduate as on the last date fixed for receipt of applications the High Court dismissed the writ petition holding that the petitioner could not have applied for the post when he was not a graduate as on the last date fixed for receipt of applications.

Held: Unless the candidate has actually passed the graduation which is the minimum qualification prescribed for the post he cannot apply for the post in the expectation of passing the said examination during the course of preliminary/final examinations.

ORDER 1. Heard finally with the consent of the parties. 2. The petitioner herein challenged the rejection letter dated 20.7.2004 by which his form for

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Uttaranchal Civil Service Examination held by the respondent – Uttaranchal Public Service Commission, has been rejected.

3. An endorsement came to be issued by the Uttaranchal Public Service Commission for a number of posts. A preliminary examination for this purpose was to be held in the month of December, 2002 and for that forms were invited and the last date for the submission was 16th September, 2002. The petitioner, who was then a student of final year of the Bachelor of Arts, filled up the form in pursuance of the advertisement and ultimately preliminary examination was held not on the date on which it was advertised, but on 28.9.2003. The petitioner also cleared that examination. The final examination is to be held on 26.8.2004. However, before that the petitioner was informed by the impugned communication that his form itself was rejected, as he did not have a minimum qualification as per the advertisement. The petitioner challenged this on the ground that on the date when the preliminary examination was held i.e. 28.9.2003, he had already passed B.A. examination on 7.7.2003 and, therefore, he was graduate, which was minimum qualification for appearing in the preliminary examination and it was also the minimum qualification for being selected to the post for which he had applied.

4. Notice was issued to the respondent Uttaranchal Public Service Commission and counter affidavit has been filed before us along with the advertisement, as also the form submitted by the petitioner before the preliminary examination. It is an accepted position that though in the advertisement, it was made out that the examination would be held in the month of December 2002 or January, 2003, in reality that examination has been held on 29.8.2003. The respondent – Public Service Commission, however, pleads that it was apparent from the advertisement as also the form, that on the date when the form was filled or at least till the last date when the form could be filled in, the petitioner must hold necessary qualification i.e. graduation. The learned counsel further points out that on the date the form was filled up by the petitioner i.e. 1.9.2002, the petitioner was not a graduate and it is for this reason that the form was rejected. The learned counsel also points out in the advertisement itself, it has been made out vide clause no.18 that if any defect were detected in the form, the said form could be rejected, even at the stage of final examination.

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5. The learned counsel for the petitioner very vehemently argues before us that it was not clear from the advertisement as to what was the cut off date for holding the minimum qualification. Therefore, we went through the whole advertisement, which has been put before us by the learned counsel for the respondent – Uttaranchal Public service Commission. In the opening words all that is said is that a preliminary examination will be held for selection of Civil Services posts under the Public Service Commission. In paragraph 2, it is specifically mentioned that for the posts at the serial numbers given therein, the graduation would be minimum educational qualification. It is true that there is no specific cutoff date and the only cut off date, we find is in clause 5, which is for minimum age and that cut off date is 1.7.2002, on which the candidate must complete the age of 21 years. However, the learned counsel points out that in the form which has been supplied itself, there is a specific declaration vide clause. The declaration in Hindi reads as under. [Omitted as it is in Hindi]

6. The translation of this in English is “I hereby declare that I have read the qualifying conditions carefully and they are acceptable to me and I fulfill all those conditions. Learned counsel for the respondent points out that this form was signed by the petition on 1.9.2002, when he was not a graduate. Therefore, according to the learned counsel on the date when the form was filled or even on the last date of submission of the form, the petitioner was not a graduate and he had not fulfilled the conditions of qualification of being graduate. The learned counsel invites our attention to the claim made by the petitioner that he would be a graduate in 2003. We have seen the form ourselves and are satisfied that at least in the form there is a clear indication given that a candidate must fulfill the condition of minimum qualification on the date the form is filled or at least on the last date the form was to be submitted i.e. 16.9.2002. There can be no dispute that on the date when the form was filled, the petitioner did not fulfill the qualification. He was admittedly not a graduate on that date. We wonder as to how the petitioner could have written that he would be a graduate in 2003, because at that time he had not even appeared in the examination. It comes in the argument that he ultimately became graduate on 7.7.2003. That may be so. However, the fact remains that on the date when the form was filled, the petitioner did not have the required minimum qualification of graduation. Once this position is cleared, it goes without saying that the petitioner had a basic disqualification in as much as he had not passed his graduation

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examination. A further argument is advanced by the learned counsel for the Uttaranchal Public Service Commission and he points out that there were specific instructions given by the Public Service Commission for helping the candidates to fill up the forms. We find that in so far as the educational qualifications are concerned, the candidates who were graduate, were specifically directed to fill up the circle in front of the column graduation and if the candidate has past post graduate, then he was to blacken circle in front of the column post graduate. If the candidate is both graduate and post graduate, then he was directed to blacken the two circles in front of the two relevant columns. The learned counsel points out that the petitioner though has blackened the circle, he has, however, mentioned in bold letters the year passing up as 2003. If the form was filled up in 2002, it is obvious that the petitioner could not have mentioned 2003 as the year of passing. Learned counsel also points out that it is specifically written in instruction no.12 that [Omitted as it is in Hindi] The English translation of this would be that the candidate must write the year of passing graduation/post graduation examination. From this learned counsel says that unless the candidate has actually passed he graduation, he could not be expected to write the year of passing in the expectation of passing the said examination. From this it is clear that every candidate aspiring to appear for preliminary examination had to be a graduate which was the minimum qualification. The petition must fail on this ground alone. 7. However, the learned counsel for the petitioner very vehemently suggests that in this case the form was accepted, the candidate was allowed to appear in the examination and as an irony of fate, the petitioner had passed the preliminary examination also and qualified for final main examination to be held on 26.8.2004. The learned counsel, therefore, says that we should take sympathetic attitude and allow the petitioner to appear in the final examination. We are afraid, we cannot do so. By that we should be doing injustice to some other, who also could have appeared like the petitioner. Rules are the rules and they cannot be ignored. We cannot, therefore, help the petitioner by accepting the request made by the learned counsel for the petitioner.

8. The petition has no merits. It must be dismissed. It is dismissed without any orders to the costs. ***

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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.103 (S/B) of 2004 D.D. 27.10.2004 HON’BLE V.S.SIRPURKAR, C.J., HON’BLE P.C.VERMA, J.

Dr. Smt.Kamla Fuloria

...

Petitioner

...

Respondents

Vs. State of Uttaranchal & Others

Recruitment -

Eligibility:

The petitioners who are working as Visiting Lecturers have challenged Uttaranchal Regularisation of Ad-hoc Appointments (On the posts within the purview of Public Service Commission) Rules, 2002 and the advertisement dated 14.3.2004 for 200 posts of Lecturers classifying the posts for open category, SC, ST etc. – The non-official respondents who are working as ad-hoc Lecturers have among other things contended that the petitioners being Visiting Lecturers have no locus standi to file these petitions – The High Court has upheld the contentions of the respondents and dismissed the writ petition.

Held: Since the petitioners were not erstwhile Uttar Pradesh employees and since the Regularisation Rules were meant only for those who were erstwhile U.P. ad hoc employees, the petitioners have no locus standi to challenge the impugned Regularisation Rules and also the cut off date 30.6.1998 fixed for consideration of ad hoc appointments made prior to that date for the purpose of regularisation.

Further held that the Government Order dated 18.7.2001 passed by Uttaranchal Government fixing percentage of reservations under different categories which varied from percentage of reservations under the U.P. Public Services (Reservation of SC, ST & OBC) Act, 1994 is valid.

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Cases Referred: 1.

(1986) 3 SCC 156 – Central Inland Water Transport Corporation Limited & Anr. Vs. Brojo Nath Ganguly & Anr.

2.

AIR 1991 SC 101 – Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress & Ors.

3.

1995 Supp (4) SCC 182 – Khagesh Kumar & Ors. Vs. Inspector General or Registration & Ors.

4.

(2000) 8 Supreme Court Cases 25 – Rudra Kumar Sain & Others Vs. Union of India & Ors. ORDER

1. This judgment shall dispose of all the writ petitions mentioned above since the controversy involved and the reliefs claimed are identical and also since common arguments were advanced in all these writ petitions. In writ petition No.89 of 2004 (S/B), the following prayers are made: i. To issue a writ, order or direction in the nature of certiorari for quashing/setting aside the advertisement dated 14.3.2004 (Annexure-15 to the writ petition) issued by the Public Service Commission, Uttaranchal at Haridwar. ii. To issue a writ, order or direction in the nature of mandamus to restrain the respondents from interfering in the functioning of the petitioners as Lecturers in their respective subjects in question till such time their case for regularisation is considered in accordance with law. iii. To issue a writ, order or direction in the nature of mandamus declaring the cut off date 30.6.1998 fixed by Rule 4(1) of Uttaranchal Regularisation of Ad-hoc Appointments (On posts within the purview of Public Service Commission) Rules, 2002 as arbitrary and illegal. iv. To issue a writ, order or direction in the nature of mandamus directing the respondents to consider the case of the petitioners for regularisation by treating the cut off date as 7.8.2002 i.e. the date of notification of the said Rules and regularise the services of the petitioners in their respective subjects, subject to their fulfilling the eligibility criterion.

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v. To issue a writ, order or direction in the nature of certiorari for quashing the Government orders dated 27.1.2001, 12.7.2002 and 10.7.2003 (Annexure No.2, 6 and 8 to the writ petition). vi. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay salary in the regular pay scale as prescribed for the regularly selected lecturers in the State along with all consequential benefits including the arrears of salary w.e.f. the date of appointment of the petitioners. vii. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay to all the petitioners their arrears of salary in respect of the period of summer vacation, which has illegally been withheld by the respondents in violation of the judgment of the Apex Court in the State of Haryana Vs Rattan Lal. viii. To issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case, so that justice be done between the parties. ix. To award cost of the writ petition throughout to the petitioners as against the respondents. x. To issue a writ, order or direction in the nature of certiorari for quashing the Government order dated 18.7.2001 (Annexure 12 to the writ petition).

2. Basis Facts and the Challenge: All the petitioners are visiting lecturers in various colleges. They were appointed to these posts on various dates from the year 2001. There were 185 posts of lecturers lying vacant in 34 Government Degree Colleges and the post Graduate Colleges in the State of Uttaranchal and, therefore, a policy decision was taken by the State Government that the vacancies would be filled up vide a Government Order dated 27.1.2001. This decision was taken as the education system was adversely affected because of the paucity of lecturers and the possible delay in appointment on these posts and also in public interest. However, this arrangement was to be only till selection and the availability of regularly appointed lecturers on the following conditions:

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1.

That such visiting lecturers should have the qualifications fixed by the U.G.C. i.e. the University Grants Commission and they were to receive Rs.100/- per hour to the maximum of Rs.5,000/-.

2.

That the maximum age limit in their case was to be 35 years.

3.

That they should be selected by a screening committee consisting of the Joint Director, Higher Education as its Chairman along with the Subject Expert and the Principal of the concerned College.

4.

That the contract of appointment of such a selected candidate would come to an end on appointment of a regularly selected candidate.

5.

That such visiting lecturers would be selected and invited only against such posts, which are full-time vacant posts.

6.

That the honorarium paid to such lecturers would be out of Head Non-plan relating to accepted posts.

7.

Such selected candidate, prior to commencement of his duty, should give an undertaking that on the basis of the selection he/she would not insist for regularisation or, as the case may be, the regular selection.

In pursuance of this decision, an advertisement was published in the newspapers in the third week of February, 2001 notifying the 185 vacancies. A second advertisement was published on 17.8.2001. In the first advertisement, the age limit was shown as 35 years and perhaps, as the enough number of candidates were not available, in the second advertisement, the age limit was increased to maximum of 40 years as on 31.7.2001. In so far as the qualifications are concerned also, in the second advertisement a slight change was effected suggesting therein that even the candidates, who had obtained their Ph.D. by year 2002, were now declared to be qualified. This was in sharp contradiction to the earlier advertisement, where a candidate had to have the qualifications as fixed by the University Grants Commission i.e. Doctorate/M.Phil Examination by 1993. As stated earlier, after the selection the petitioners were appointed to work as lecturers in various colleges and they all joined their duties. The appointment orders came to be passed in

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case of practically all the petitioners in the month of August, 2001. Again, on 12th July, 2002, another Government Order No.624/Higher Education/2002-03(18)/2002 was issued, whereby such visiting lecturers, who were selected and working in the academic session 2001-02 were to be continued for the academic session 2002-03 and they would be nomenclatured as Visiting Lecturers. It is to be seen that in their appointment for the year 2001-02, the nomenclature of their post was Visiting Faculty. Their appointments were to be continued for the period of 1.7.2002 to 30.4.2003. They were to be paid Rs.250/- per hour instead of Rs.100/- per hour and the maximum pay was to be Rs.8,000/- instead of Rs.5,000/-. Every visiting lecturer had to remain present on all the working days and they were to get the leave maximum to the extent of 10 days in the contract period. Every visiting lecturer had to deliver minimum 40 lecturers a month and had to complete the norms. If, for any reason, the norms were not reached, such norms had to be completed in the next month. All the petitioners were invited and were directed by a letter dated 20.7.2002 to report to the concerned Principal. This arrangement continued till the end of the academic session 2002-03 and the Government, thereafter, came out with another Government Order dated 10.7.2003, whereby such visiting lecturers, who were working in the academic session 2002-03 were to be continued for the academic session 2003-04 and their contract period was to be between 1.7.2003 till 30.4.2004. It was provided that if after 30.4.2004, there was any necessity, then they could be continued for the work relating to examinations, for which they were to be paid at the rate or three lecturers for the examination of three hours. All the lecturers were to be paid the honorarium of Rs.8,000/- per month (the condition of Rs.250/per lecture was not to be found in this Government Order). All the other conditions were to be identical. It was, however, further provided in the Government Order, that fresh candidates would not be appointed as visiting lecturers as against the vacant posts and for such fresh vacancies, retired teachers could be invited. Accordingly, all the petitioners were intimated by a letter dated 22.7.2003 for reporting to their Principals. It was, however, informed that if they fail to report, their appointment would be treated as cancelled. It seems that some of the lecturers were transferred from one College to other for the academic session 2003-04.

3. It is to be noted that the State Government has framed rules called Uttaranchal Highr Education (Group A) Service Rules, 2003 [Uttaranchal Uchchattar Shiksha (Samuh ‘Ka’) Sewa Niyamawali,

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2003] under the proviso to Article 309 of the Constitution of India vide notification No.703/HE/ 2003-3(14) 2001 dated 25.8.2003. These were the rules providing for the cadre posts as also providing for the modality for recruitment to the cadre along with the qualifications and the procedure for selection, appointment, pay etc. In short, these were the service rules. Under these rules, the term of ‘visiting lecturer’ has been defined vide Rule 3(n) as under: “Visiting Lecturer means the invited candidates for teaching in Government Degree Colleges since academic session 2001-02 on contract under G.O. 457/H.R.D./20013(6) 2000 dated 27.1.2001.”

Vide Rule 4, the cadre strength is fixed and it provides 883 posts for the Lecturer/Lecturer, Senior Scale/Lecturer, Selection Grade. Rule 5 provides for the modality of recruitment and in Category IV(b), it is provided that the lecturer shall be recruited by direct recruitment through Public Service Commission, Uttaranchal. Rule 8 provides the academic qualifications for the post of lecturer as the qualifications prescribed by the University Grants Commission and approved by the Government of Uttaranchal. Rule 9 is, however, extremely important. It is under the heading ‘preferential qualification’. We are not concerned with Rule 9(a), (b) and (c). Rule 9(d), (e) and (f) are, however, quoted below in view of their relevance: “9(d) Candidates working as Visiting Lecturers in Government Colleges of the State shall get maximum five percent bonus marks of the total marks obtained in the Examination/interview provided the candidates working as Visiting Lecturer possesses the minimum qualifications prescribed by the Government for the post of Lecturer; (e) Candidates working as Part-time Lecturer in Govt. College of the State, if eligible, shall get maximum five percent bonus marks of the total marks obtained in the Examination/Interview provided the Part-time Lecturer possesses the minimum qualifications prescribed by the Government for the post of Lecturer; (f) Only those Visiting Lecturers & Part-time Lecturers shall be given preference in case of selection for the post of Lecturer in Government Colleges, who are working as above on or before the date of notification of Service Rules. This is not a permanent provision.”

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Rule 10 provides for the maximum and minimum age for the direct recruitment of lecturers, which is 21 years minimum and 35 years maximum on January 1 of the year in which the recruitment is to be made. Rule 10(b) is, again, relevant because it concerns the working Visiting Lecturers like the petitioners and it runs as under:

“10(b) The working Visiting Lecturers and Part-time Lecturers in Government Colleges of the State who possess prescribed qualifications will be given relaxation in the maximum age limit to the extent needed for the post provided the Visiting Lecturer and Part-time Lecturer were under the prescribed age limit at the time of initial appointment as Visiting Lecturers/Part-time Lecturers.”

In short, these rules recognise the class of Visiting Lecturers and also provide preferential treatment to them in the matter of their regular selection as against the post of Lecturer.

4. Even before these Rules came into existence, the State Government on 7.8.2002 has passed The Uttaranchal Regularisation of Ad-hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 2002 (to be called as ‘regularisation rules’ for short). These regularisation rules are in exercise of he powers under Article 309 of the Constitution of India. Rule 4 of the regularisation rules runs as under: “4. Regularisation of ad-hoc appointments. – Any person who – (i) was directly appointed on ad-hoc basis before June 30th,1998 and is continuing in service as such on the date of commencement of these rules; (ii) possessed requisite qualifications prescribed for regular appointment as the time of ad-hoc appointment; and (iii) has complete or as the case may be, after he has completed three years service as such, shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules or orders.

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(2)

In making regular appointments under these rules, reservations, for the

candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3)

For the purpose of sub-rule (1) the appointing authority shall constitute a

Selection Committee. (4)

The appointing authority shall prepare an eligibility list of the candidates

arranged in order of seniority, as determined from the date of order of appointment and if two or more persons are appointed together from the order in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee along with the character rolls and such other records of the candidates as may be considered necessary to assess their suitability. (5)

The Selection Committee shall consider the cases of the candidates on the

basis of their records referred to in sub-rule (4). (6)

The Selection Committee shall prepare a list of the selected candidates, the

names in the list being arranged in order of seniority, and forward it to the appointing authority.”

It is needless to mention here that the post of a Lecturer in the Government Colleges is under the Public Service Commission. Under the above mentioned regularisation rules, as would be clear from the language of Rule 4, which we have quoted above, the person who was directly appointed on ad hoc basis prior to 30.6.1998 and who was continuing in service on the date on 7.8.2002 possessing the requisite qualification for regular appointment at the time of his ad hoc appointment and had completed three years of service or after he completes three years of service, was made entitled to be considered for regular appointment in available permanent or temporary vacancy. Such consideration was to be on the basis of his record and suitability for which purpose, an eligibility list was to be prepared in the order of seniority, in keeping with Rule 4(4) of the regularisation rules, by a Selection Committee made for that purpose.

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5. As a sequel to the Uttaranchal Higher Education (Group A) Service Rules, 2003, an advertisement came to be issued on 14.3.2004 for 200 posts of Lecturers. Out of these 200 posts, 45 posts are reserved for the Scheduled Castes, 1 post for the Scheduled Tribes, 23 posts of the Other Backward Classes and 131 posts are meant for open category. It is specifically provided in clause (4) of Preferential Qualification that the working visiting lecturers would be awarded 5% of the total marks earned by them as bonus provided such visiting lecturers are qualified and working as visiting lecturers. Significantly enough, it is after this advertisement is issued that the petitioners have come out to file the present writ petitions challenging the aforementioned regularisation rules and more particularly, Rule 4 therein, which provides for the consideration of the ad hoc appointments made prior to 30.6.1998 for the purpose of regularisation.

6. Challenge of the petitioners and the rival claims of the respondents: i. The petitioners say that the fixation of cut off date as 30.6.1998 is arbitrary as firstly, there was no rhyme or reason and also there was complete absence of material as to why this date was fixed and thus, it offends Article 14 of the Constitution of India. Shortly stated, their strategy appears to be that if this date is found to be arbitrary, then the date on which the regularisation rules came into existence, namely, 7.8.2002 would be the cut off date and thereby, all of them would get a right to be considered against the permanent or temporary vacancies on the basis of their record and suitability before any regular appointment is made in such vacancies.

ii. The second leg of the challenge is that these rules have been passed by the State of Uttaranchal, which, itself, came into being on 9.11.2000 in pursuance of the U.P. Reorganisation Act. If on 30.6.1998, the State of Uttaranchal, itself, was not there, then it could not have fixed a date prior to its creation as a cut off date.

iii. It is also the challenge that in providing the service conditions of the employees, who were the employees of the erstwhile State of U.P., the rules have an extraterritorial legislation and are bad for that reason.

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7. With this challenge to the regularisation rules, the petitioners have also challenged the aforementioned advertisement dated 14.3.2004 on the ground that it is in complete derogation to the percentage of reservation in as much as it is not in keeping with the percentage provided by the U.P. Reservation Act, 1994 nor is it in conformity with the reservation policy fixed by the State of Uttaranchal. It is pleaded in this behalf that there is a Government Order passed on18.7.2001, whereby the State of Uttaranchal had fixed the following quota for the different categories, that was: Scheduled Castes

-

19%

Scheduled Tribes

-

4%

Other Backward Classes

-

14%

Total

-

37%

The contention of the petitioners is that before the reorganisation of the State of Uttar Pradesh, the provisions of U.P. Reservation Act, 1994 were applicable in the territories now comprised within the State of Uttaranchal and by virtue of U.P.Reorganisation Act, 2000, the said Act was still applicable so long as it is not repealed by the successor State of Uttaranchal. They, therefore, contend that, firstly, the State of Uttaranchal could not have passed the Government Order dated 18.7.2001 without passing the Legislation on the subject. It is pointed out that the different percentages, then the once covered under the U.P. Reservation Act, 1994, could not have been effected by merely issuing a Government Order under Article 162 of the Constitution of India without passing a proper Legislation. In support of their contention, the petitioners heavily rely on Section 86 of the U.P. Reorganisation Act and suggest that a change in the reservation policy could have been effected only by legislature and not by an executive order. Thus, as if this is not sufficient, the petitioners, further, argued that even if the Government Order dated 18.7.2001 was valid, the advertisement was not in keeping with the percentages therein in respect of the reservations. In short, the petitioners want to thwart the efforts on the part of the Government to fill up the posts by regularly selecting and appointing the lecturers and instead, claimed a writ for their own regularisation on the basis of the regularisation rules.

8. The petitioners do not stop here and claimed that though they had agreed to work on lesser

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salary by applying the principle of equal work equal pay, they should have been paid the salary of a lecturer in the regular scale and should have also been aid the salary for the summer vacations. It is contended that merely because the petitioners were not in a position to bargain with the Government owing to their unemployedness, they could not be coerced into working as lecturers and doing the identical job of the lecturers on much inferior service conditions. The petitioners, therefore, prayed for the direction to the Government for payment of their salary at the rate of regular scale made applicable to the petitioners along with the summer salary etc. on the basis of the principle of Equal Work Equal Pay.

This, in short, is the scope of the writ petitions as they are filed. It is at the fag end of the arguments that the petitioners also prayed for quashing the Government Order dated 18.7.2001 relating to the reservation policy applicable to the State of Uttaranchal. This was necessitated because during the arguments, it was pointed out that there was no challenge to the validity of that Government Order. Shortly stated, the petitioners have the following prayers: 1.

To quash clause (4) of the aforementioned regularisation rules and consequently

regularise the services of the petitioners as lecturers. 2.

To quash the Advertisement dated 14.3.2004

3.

To quash the Government Order dated 18.7.2001

4.

To direct the Government to pay their arrears of salary to be calculated on the

basis of the regular pay scale of the lecturers.

9.i.

As against this, the respondents very vehemently contend that the petitioners, who were

employed as visiting faculty to begin with and were continued as visiting lecturers, are a definite class as contemplated and defined under the Uttaranchal Higher Education (Group A) Service Rules, 2003 (from hereinafter called as ‘Education Service Rules’ for short) and they could not possibly claim the status of ad hoc lecturers. It is pointed out that none of the petitioners was an ad hoc lecturer in the erstwhile State of U.P. and they have all been employed only after the State of Uttaranchal came into being on 9.11.2000 and as such, regularisation rules were not meant

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for the persons like the petitioners and in fact, those rules were made only for the persons in ad hoc services. It is pointed out that while the Education Service Rules are meant specifically for those in education service, the regularisation rules are the general rules meant for all the services coming under the purview of Public Service Commission. As a sequel to this argument, it is contended that the petitioners have no locus whatsoever to challenge the regularisation rules as they are meant for a totally different class. The further argument of the respondents is that if the petitioners are not to be governed by the regularsiation rules at all, they could not possibly find any fault with Rule 4 therein and claim consideration for regularisation on the basis of that Rule. The respondents want to nip the petitioners’ case in the bud by saying that they cannot have any possible challenge against the regularisation rules. It is further reiterated that the regularisation rules and more particularly, Rule 4 by its plain language, itself, provides that it is meant only for persons, who were appointed in the erstwhile State of U.P. by way of ad hoc appointments. The respondents point out that there is an essential difference between the ad hoc appointments and the contractual appointments. Relying on the definition of visiting lecturers in the Education Service Rules, the respondents submit that all the petitioners, who were appointed on contract in the year 2001, would by themselves make a class not comparable to the class of ad hoc employees. For that matter, it is contended that there was no ad hoc lecturer available in the State of U.P.

ii.

It is then contended by the respondents that there are definite reasons and material

available to fix a cut off date at 30.6.1998. It is, then pointed out that by reason of Section 74(2) of the U.P. Reorganisation Act, the State of Uttaranchal has its sovereign legislative powers as also the executive powers to pass the rules applicable to such employees, who have become or would become the employees of the State of Uttaranchal shedding of their character as the employees of the State of U.P. and merely because the State of Uttaranchal came into being on 9.11.2000, it cannot be said that it has no power to provide a cut off date prior to its coming into being. It is also contended by the respondents that there will be no question of cut off date being arbitrary and more particularly, there cannot be a comparison between the two separate classes and that is how the State wants to repel the challenge under Article 14 of the Constitution of India.

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iii. It is then contended by the respondents that there will be no question of any extra-territorial legislation as the employees, in respect of whom these regularisation rules have been framed, had already shed-off their character as the employees of the State of U.P. and they, for all the practical purposes, would become the employees of the State of Uttaranchal.

Even at the cost of repetition, the State Government makes a basic challenge to the petitions on the ground that these rules were not applicable to the petitioners at all.

10. Regarding the challenge to the advertisement, it is pointed out that because of the rosters and the availability of the posts as also the number of the reserved candidates being already in services, the particular number of posts, alone, were put in the reserved category.

Respondents, further, submit that there cannot be a challenge to the Government Order dated 18.7.2001 merely on the ground that it is not passed by the legislature. The respondents heavily rely on Section 86 of the U.P. Reoganisation Act and submit that there will be no question of amending the U.P. Reservation Act, 1994 by the Government Order dated 18.7.2001 and the State of Uttaranchal has total authority to decide upon their policies of reservation as also to adopt the modalities to effectuate those policies. It is, therefore, contended that the Government Order dated 18.7.2001 is a perfectly valid instrument.

11. Respondents, further, urged that there was no comparison between the contractual lecturers and the regularly appointed lecturers in so far as their appointments, responsibilities, selection or the nature of duties are concerned and, therefore, the claim for the regular scale is unsustainable. The respondents point out that there is no application of the principle of Equal Work Equal Pay in this case because visiting lecturers (contractual lecturers), like the petitioners, are a separate class by themselves not comparable to the regularly selected lecturers.

12. The State, as an additional contention, also contends that, in fact, the State has titled in favour of the said visiting lecturers like the petitioners in providing the preferential treatment to them in the Education Service Rules and they can legitimately compete with others on the basis

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of that preferential treatment and instead of assailing the advertisement and thwarting the attempts on the part of the State Government to appoint regularly selected lecturers, it would be better if they took part in the selection process introduced by the advertisement. On this ground also, the State repels the challenge to the advertisement.

13.

The following questions, therefore, fall for consideration: (1) Do the petitioners have any locus standi to challenge the Uttaranchal Regularisation of Ad hoc Appointments (on posts with the purview of Public Service Commission) Rules, 2002 and more particularly the Rule 4 thereunder? (2) Is the cutoff date fixed by Rule 4 arbitrary and is the Rule hit by the contravention of Article 14 of the Constitution of India on that account? (3) Are the rules bad as they amount to extra territorial legislation? (4) Is the impugned advertisement dated 14.3.2004 bad on account of percentage of reservation therein being in variation to the U.P. Reservation Act, 1994 and is the Government Order dated 18.7.2001 bad on account of the fact that it amounted to an amendment of legislation (U.P. Reorganisation Act, 2000) by way of executive order? (5) Was the State Government justified in requiring the petitioners to work on fixed salaries and refusing them to regular pay scales of Lecturer? (6) Can any relief be granted to the petitioners?

Question Nos.1, 2 and 3: 14. These three questions can be conveniently considered together as they pertain to the validity of the Regularisation Rules. We have already pointed out earlier that the strategy in challenging the Rule appears to be to get the cut off date of 30.6.1998 quashed and then as a sequel to the quashing of the date, claim the said date to be 7.8.2002, when the petitioners entered into the contract of service. In short, the petitioners’ strategy appears to be, that if the cut-off date is quashed, then there would be no cut of date and at any rate the cutoff date would be starting

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from the date of the services of the petitioners and they would be then entitled for consideration for regularisation. Therefore, before venturing to test the constitutionality of these Rules in general and Rule 4 in particular, it has to be seen whether the petitioners have any concern or nexus with these Rules.

15. A mere glance on these Rules suggest that these Rules are meant only for the employees who were serving with the erstwhile State of U.P. and who eventually were made over to the State of Uttaranchal under the provisions of the U.P. Reorganisation Act, 2000. The basic fact, which cannot be forgotten is, for the applicability of these rules, the concerned employee must have been employee of erstwhile State of U.P. and he should have been in service on 30.6.1998. It is again an admitted position that none of the petitioners in all these writ petitions was an employee in the State of Uttar Pradesh. In fact none of these petitioners had even started their career in the State of U.P. and each one of the petitioners entered in service only in the newly constituted State of Uttaranchal. If this is the situation, then one fails to understand as to how the petitioners could be allowed to challenge the Rules, which were made for regularisation or for consideration of regularisation of the erstwhile employees in the State of U.P. It cannot again be forgotten that the Rules were meant for regularisation of the employees, who were appointed as ad hoc employees on the post, which came within the purview of the Public Service Commission. Again, rules were not meant exclusively for the Education Department and there are distinct and separate Rules for the Education Department, which are called Uttaranchal Higher Education (Group A) Service Rules, 2003. One fails to understand as to how the petitioners, who were not even in the existence in the erstwhile State of U.P., could be allowed to challenge these Regularisation Rules, which were meant only for the ad hoc employees appointed in the State of U.P. and who were in service on 30.6.1998. There is an inherent contradiction in the challenge

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16. Once this position is obtained, there would be no question of our considering further challenge as to whether this amounted to legislation of extra-territorial nature. In our considered opinion, it could not be by any stretch of imagination held to be a legislation of extra territorial nature. After all, when these Rules came into being, they covered the employees who essentially were erstwhile U.P. employees, but had been made over to the Uttaranchal permanently. At the time when the Rules were framed i.e. on 7.8.2002 the State of Uttaranchal was passing the Rules for its own employees, who had cut their ropes and burnt their boats in so far as their return to U.P. is concerned. Once the U.P. employees appointed on ad hoc basis came to Uttaranchal, the State of Uttaranchal had all the authority and legislative potency to decide as to whether such persons should be regularised or not and that is precisely what has been done by these Rules. Therefore, their objection regarding the extra territorial operation also has to fall.

17. A lengthy debate went on to suggest that these petitioners could be termed as the ad hoc employees and nor merely contractual employees. In our opinion such a debate is completely unnecessary. Even if, we hold the present petitioners to be ad hoc employees, the fact that the matter is that they were not ad hoc employees in the State of U.P. and it is only for the ad hoc employee appointed in the State of U.P. who were made over to the State of Uttaranchal that the present rules had been brought into existence. We shall immediately show that these petitioners were not ad hoc employees at all for the simple reason that an ad hoc employee draws a regular pay scale and admittedly these petitioners did not draw any such regular pay scale. Their service was purely on contractual nature and because of this they were described as Visiting Lecturers in their appointment orders. We have deliberately referred to the rules called Uttaranchal Higher Education (Group A) Service Rules, 2003. Under these Rules vide Rule 3(n), there is specific mention of the persons like petitioners. We have already quoted definition of ‘Visiting Lecturer’ vide this Rule in para 3 of the judgment. We have deliberately quoted in the same paragraph Rule 9(d), (e) and (f) to suggest that a specific and distinct category of Lecturers was contemplated by these Rules, who as a result of their continuing from the session 2001-2002 on contract under G.O.No.457/HRD/2001-3(6)2000 dated 27.1.2001, were given a favourable treatment as compared to others competing for the Lecturers post through their selection by the Public Service Commission. Under Rule 9(d), such candidates are to get five percent bonus marks of the total

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marks obtained in the examination/ interview provided of course that while working as Visiting Lecturers, they had the minimum qualification prescribed by the Government for the post of Lecturer. There can be no dispute that the petitioners had such minimum qualification because otherwise they could never have been appointed as Visiting Lecturers at all. We have already pointed out that these Visiting Lecturers had to have the qualification fixed by the University Grants Commission for being appointed as such on contract basis under the aforementioned Government Order dated 27.1.2001. This preferential treatment was shown even to the parttime Lecturers, subject of course of their having minimum qualification. Rule 9(f) provided that only those Visiting Lecturers and Part-time Lecturers could be given such a preference, who were working on or before the date of notification of the Service Rules. The notification of the service Rules came on 25.8.2003 and without a doubt, all the Lecturers were working on that date as contractual Lecturers or as the case may be Visiting Lecturers. The last sentence of the said clause 9(f) is extremely telling i.e. “This is not a permanent provision”. Thereby, these Lecturers were treated as a specific and distinct class and it is for such Lecturers class alone that the State had tilted the balance in their favour by providing a preferential treatment of getting five percent bonus marks on and above their score. This dispels all the doubts about these Lecturers that they were never treated as ad hoc lecturers. They were of course treated as a separate class and, in our opinion government had rightly made a provision for safeguarding their interest perhaps taking into consideration their three years of service on the fixed salary. Therefore, these Lecturers could never to be treated as ad hoc Lecturers.

18. A very heavy reliance was placed by the petitioners to suggest that they were ad hoc employees on the reported decision in Rudra Kumar Sain and others Vs. Union of India and others reported in (2000) 8 Supreme Court Cases 25 and more particularly in para 19, where the Apex Court has explained the significance of the ad hoc appointment. The Supreme Court therein was considering the significance of the term “ad hoc” as also the term “fortuitous” and “stop gap”. The following contents were heavily relied upon: “The meaning to be assigned to these terms while interpreting the provisions of the service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in

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the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose, it will be necessary to look into the purpose for which the posts were created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as “ad hoc” or “stop gap”. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature, then the appointment of such a post can aptly be described as “fortuitous” in nature. If the appointment is made to meet the contingency arisen on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then and to meet this contingency, an appointment is made, then it can appropriately be called a “stopgap” arrangement and appointment in the post as “ad hoc” appointment.” From this, the petitioners say that since their appointment was made as a large number of posts were remaining unfilled and that was affecting the education scenario in the Colleges, their appointments were “ad hoc” in nature, though such appointments were for a particular period provided by the contract. The contention is undoubtedly attractive. However, in our opinion, Rudra Kumar Sain’s case will not apply for more than one reason. In the first place, there the Supreme Court was considering the question of inter se seniority between the person who were appointed by way of ad hoc appointment and some others. Such is not the question here. We are concerned with the rights of the petitioners to be regularised and to put it more correctly for being considered for regularisation in that appointment. This is not a case where some posts are created to meet a particular situation. On the other hand, this is a case where a number of posts had remained vacant and undoubtedly there would have been a delay in the appointment of these posts and as such the said appointments were made by a contract for specific period of one year and these Lecturers were then allowed to continue for two more years. They were not provided regular scale of Lecturer. On the other hand, they were provided with fixed salary. We further point out that their duties were also not identical with regular

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Lecturers as these Lecturers had no liability to work in the summer vacations and if they were required to work in the summer vacations, they were to be separately paid. Normally, an ad hoc appointment would draw some salary and the regular scale meant for that post, which is obvious from the facts in Rudra Kumar’s case. Such is, however, is not the case here. Again, the observations which were relied upon are being read out of context because immediately thereafter the Supreme Court holds that “It is not possible to lay down any straight-jacket fomula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which the appointment of officers can be said to come within the cope of any of these terms. It is only to indicate as how the matter should be approached, while dealing with the question of inter se seniority of officers in the cadre” (emphasis applied). This would clearly explain that the observations made by the Supreme Court quoted above would not apply to the present case where the question of inter se seniority is not for consideration. We, therefore, do not think that the observations are of any help to the petitioners. 19. Three other Supreme Court judgments were heavily relied upon, they being Central Inland Water Transport Corporation Limited and another Vs. Brojo Nath Ganguly and another & Central Inland Water Transport Corporation Limited and another Vs. Tarun Kanti Sengupta and another reported in (1986) 3SCC 156 and Khagesh Kumar and others Vs. Inspector General of Registration and others reported in 1995 Supp (4) SCC 182 as also Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others reported in AIR 1991 SC 101. We are afraid none of the aforementioned judgments is apposite to the present controversy. In Central Inland Water Transport Corporation Limited and another Vs. Brojo Nath Ganguly’ case (supra), the question was of unconscionable contract between the workers and the employer which was held to be so and, therefore being opposed to public policy, it was held void under Section 23 of the Contract Act. The Supreme Court scoffed at obvious inequality of bargaining power between the parties and held that Courts would not only not enforce such contract, but when called upon to do so, strike down the unfair and unreasonable contract. It also held that while considering such contract, all the provisions of the Contract Act must be taken into consideration, which principle was in consonance of the objective to ensure social

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and economical justice and also keeping in line in spirit of Article 14 of the Constitution. The Court, however, said that cases such as these cannot be enumerated nor illustrated and the Court must judge each case on its on facts and circumstances. Here, it is the contention of the petitioners that they were unemployed educated persons and had no option except to put signatures on the dotted lines, though the contract of service was unconscionable. It was tried to be suggested that, therefore, it was the duty of the Court to strike down such a contract and secure a regular pay scale available to the Lecturers. In the background of the present facts, we do not think that such factual scenario is available in this case. All the petitioners are highly educated persons. Majority of them hold doctorate. They have signed the contract with the open eyes, which was only for one year to begin with and was extended to three years. They also accepted extension and they were paid Rs.8000/- per month in the third year of their service, which was commensurate with the regular pay scale, if not equal to it. It is not as if that they could not have secured employment elsewhere. That is not the case pleaded and it indeed cannot be. Once these Lecturers had accepted the contract with the open eyes, they cannot turn back and say that they were a weaker party, had no bargaining power, therefore, had to put their signatures on the contract and that they should be regularised even if they were appointed only for a particular period. We do not think that such approach is reasonable and possible. Again, we cannot ignore the fact that these three years of service has given them additional advantage of 5 per cent bonus marks of the marks earned by them in the matter of their selection by the Public Service Commission under the Education Rules, to which we have already made reference. Every employee needs a job. If we take such a view even in case of these Lecturers, it would amount to hold that each other employee is a weaker section vis-a-vis an employer and, therefore, every such contract of service would become unconscionable and liable to be struck off. The case of Central Inland Water Transport Corporation Vs. Brojo Nath Ganguly, which was fall out of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others (supra), therefore, had to be read as per the law declared by the Supreme Court that every contract must be judged independently in the light of the available facts. If that exercise is done, the contention raised by the petitioner loses its potency. In the Khagesh Kumar’s case (cited supra) the question of regularisation of the clerks, who were on daily wage basis. The petitioners therein claimed the regularisation on the basis of

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the sporadic ad hoc appointments. The Supreme Court on the basis of the available rules held that where an employee was appointed on daily wages basis prior to 1.10.1986 and had put in three years’ service excluding the breaks, he would be entitled to seek regularisation under Rule 4(1) OF Regularisation Rules provided he fulfilled the requirement of qualification under clause (ii) of the said Rule. For that purpose, he was given liberty to move appropriate authority for such regularisation. This case is heavily relied upon as words of said Rule 4(1) are almost identical except the date mentioned therein. This Rule appears in para 15 of the judgment of the Supreme Court. The Supreme Court referred to the Regularisation Rules in U.P. and observed that if the recruitment was made on the post of Registration Clerks on regular basis such employees should be given an opportunity of being considered for such appointment and they should be given relaxation in age requirement provided for such appointment under the Rules. So also during the process of selection weightage be given to their experience to the post of Registration Clerks and suitable guidelines be framed for that purpose. It is precisely that, it has been done in this case also. Such Lecturers, who have put in three years of service and were on the service, have actually been given weightage of 5 percent bonus marks and they were also given relaxation of their age as would be evident from Rule 9 of the Education Rules, to which we have already made reference. This is how such view was taken by the Supreme Court in a reported decision Uttar Pradesh Mahavidyalaya Tadarth Shikhak NiyamitikaranAbhiyan Samiti, Varanasi Vs. State of U.P. and others reported in AIR 1987 SC 1772. This is also not a case where a blanket relaxation was given by the Supreme Court. In fact the case of Khagesh Kumar would be more beneficial to the respondents than the petitioners because these Lecturers have been offered this opportunity by ways of impugned advertisement. We do not find anything in Khagesh Kumar’s case to support the contention of the petitioners that they are ad hoc workers. We have already clarified that merely using the magic term ad hoc worker does not clothe the petitioner with any rights in view of the peculiar wordings and language of the impugned Regularisation Rules. We are, therefore, of the clear opinion that in the first place, the petitioners could not be said to have any nexus with these rules as the impugned rule were not meant for the persons like the petitioners who were entirely a different class. If they are held to be a different class altogether, there will be no question of finding any discrimination against them, much less on account of fixation of cut off date 30.6.1998.

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20. Much clamour was made as to how the State Government fixed this cut off date and that fixation of that cut off date itself was arbitrary act. We have already pointed out that the petitioners cannot challenge this aspect being a different class altogether. They were not on the scene on 30.6.1998 and the objective of the rule was entirely different. The persons to be benefited by those rules were also altogether different class. As regards the material available the State Government justified the same for fixing the cut off date. The State Government claims that they have done it as in the erstwhile State of U.P. also the same date was taken. We do not find anything unreasonable in fixing that date because after all the employees for whom the benefit of consideration of regularisation was being contemplated by the rules were the ad hoc employees of erstwhile U.P. There is nothing wrong if the State of Uttaranchal, therefore, took the lead from the State of U.P. in fixing that date. Even at the cost of repetition we again reiterate, our finding that the petitioners being the entirely different class and being entirely unconnected with the rules, have no locus to challenge the fixation of cut of date in these rules, which was not meant for them. 21. This bring us to the last consideration that the rule amounted to extra territorial legislation. We have already held above that there is no question of these rules being held as extra territorial legislation. True it is that employees contemplated under the rules were the U.P. employees, but it cannot forgotten that admittedly they were made over to the State or Uttaranchal and the State or Uttaranchal had accepted them with open arms. In the wake of finding that they have cut their ropes and burnt their boats in so far as their return to the U.P. is concerned, the State of Uttaranchal has every right to decide their fate. We are not, therefore, prepared to strike down the rule, which was a piece of a beneficial legislation on the ground that it amounted to extra territorial legislation. This disposes the first three questions framed by us. Question No.4: This question cannot be gone into atleast in case of these petitioners because none of them has claimed any status of the reserved category. All of them are of open category. However, since we found that the advertised posts were not keeping with the reservation percentage even shown in G.O. dated 18.7.2001 passed by the State of Uttaranchal, we posed a query to the Government

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counsel as to how the advertisement and more particularly reservations there, could be justified. As a sequel to the query the Government pleader has come out with an affidavit, wherein in para 5, it is reiterated by the Deputy Secretary, Higher Education, Government of Uttaranchal, Dehrdun that the State Government vide its letter No.824/XXIV(1)/2004 dated 27.9.2004 has sent a requisition to the Public Service Commission for filling up the remaining 239 posts of Lecturers after calculating the number of posts available in the reserved category on the basis of the total strength and also taking into account backlog of the reserved categories posts earmarked for the reserved category, so as to fulfill the admissible quota as per the Government Policy. It is pointed out that out of the 239 posts, 129 posts have been reserved for the Scheduled Caste, 37 for the Other Backward Classes and 35 posts for the Scheduled Tribes have been earmarked. Thus, the posts of reserved categories advertised in the impugned advertisement together with the posts of reserved categories earmarked in the Government requisition make full quota of the reserved categories on the basis of the cadre strength of 974. The Government has reiterated that instead of issuing a corrigendum to the advertisement, the Government has decided to fill up the remaining vacancies so that the reservation policy can be strictly implemented on the total strength of the cadre. It is for this purpose that the Government has suggested that it would not issue a separate corrigendum and would proceed with the interviews as the exercise is extremely important in view of the fact that students are suffering on account of paucity of Lecturers. We find this exercise to be bonafide and would expect the Government to come up with the advertisement for 239 posts immediately. For this purpose we are fixing the time limit of two months. If that is so, the challenge to the advertisement must necessarily go.

23. It was faintly murmured that before the reorganisation of Uttar Pradesh, the question of reservation was governed by the U.P. Public Service Services (Reservation of Scheduled Caste, Scheduled Tribes and Other Backward Classes Act, 1994. It is then contended that since the Government of Uttaranchal has adopted the said Act, the provisions of reservation must be governed by that Act. Our attention was invited to section 3, wherein the percentage of reservation for the Scheduled Caste 21%, for the Scheduled Tribes 2% and for the other backward classes 27% is provided. It was pointed out that by passing the Government Order dated 18.7.2001, this percentage is varied. Heavily relying on Section 87 of the Uttar Pradesh Reorganisation

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Act, 2000, it was contended that once the U.P. Act was adopted, unless it was specifically altered, amended or repealed by a competent Legislature, the Government could not have effected a change in the percentage of reservation by simply passing a Government order. Heavy reliance is placed on the language of section 87 and, therefore, we are quoting the section as below: “87. Power to adapt laws: For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.”

In our opinion, the argument is completely untenable. Even if it is presumed that the Act was adopted, as it is (for which no evidence is placed before us), we completely fail to understand as to why would it be necessary to specifically amend or repeal or alter the provisions of the Act. That is not the scheme of the Section, nor can this be a proper interpretation. Now if the Government Order is passed by way of alteration of the provisions of the U.P. Act by a competent authority, it would be perfectly in order. Here, in this case it is not the case of the petitioner that the aforementioned Government Order has been passed without any authority. What the petitioners contend is that by operation of Section 87, the Uttaranchal Government had adopted the whole Act. In the first place, we do not see any support by way of any evidence before us. The contention then is that the amendment must come only through the legislation. In our opinion, the section cannot be read narrowly. What the section mandates is that the appropriate Government, and in this case, the Uttaranchal Government may within two years from 9.11.2000 pass an order for making such adaptations or modifications of the law as may be felt necessary or expedient. Now if the Government order is passed on 18.7.2001, it is within two years from the date when the Uttaranchal Government came into existence and, therefore, Uttaranchal Government, is perfectly justified in making adaptations or modification in the law by simply passing an order and that is precisely what it has been done. The language

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of the section further provides that these adaptations or modifications would continue to apply so long as they are not altered, repealed or amended either by the competent Legislature or other competent authority. We do not, therefore, see anything wrong in Uttaranchal Government passing the Government order making its own adaptation by changing the reservation percentage. We do not, therefore, see any force in the contention of the petitioners that the Government order dated 18.7.2001 is in any way defective or illegal or in contravention of section 87 of the U.P. Reorganisation Act, 2000. The contention is, therefore, rejected. The question is disposed of accordingly.

Question Nos. 5 and 6: This leaves us with the last contention that the petitioners should have been given salaries as regular lecturers and that they should be given regular time scale.

While considering the question of regularisation, we have already gone into the subject and we have held that the petitioners are not entitled to regularisation and they cannot rightfully claim the same. What goes for regularisation would also go for payment of salaries. In our opinion, the petitioners have been paid salary of Rs.8000/- per month, which may not be identical with the scale of lecturers, but is commensurate to the salary of the lecturers, who are regularly appointed. The learned counsel Dr. R.G.Padia, however very seriously urged that this Court had passed an order on 27.4.2004. The said order is as follows: “Heard Mr.R.G.Padia, learned counsel for the petitioners. Admit. Notices have been accepted by learned Chief Standing Counsel on behalf of the respondents no.1, 2 and 4 and by Mr.U.K.Uniyal, Advocate on behalf of the respondent no.3, who pray for and are allowed three weeks time to file a counter affidavit. List on 27.05.2004. Until further orders of this Court, services of the petitioner shall not be terminated in view of the fact that the Uttaranchal (under the purview of the Public Service Commission) Regulation of Ad hoc Appointment Rules, 2002 were enforced on 7th August, 2002 and the cut off date for regularisation is 30th June, 1998 when the State

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was not in existence. The employees who were appointed prior to 9th November 2000 were employees of the State of U.P., therefore, prima facie, we are of the opinion that the fixing the cut off date is 30th June, 1998 is arbitrary. Office is directed to supply the copy of his order today.”

On that basis, Dr.Padia said these teachers would continue to be in service or would at least be deemed to be in service and, therefore, they should be paid salaries at least till the decision of the writ petitions. We do not tend to agree with the contention entirely because obviously these teachers are not working as such. Thereafter, on 20.7.2004, the Court had issued notices to the respondents to show cause as to why the orders had not been complied with. In fact it is because of that, the matter was taken up for hearing. In the first place, the Government alone cannot be blamed for the pendency of these writ petitions because after the petitions were filed they were extensively amended by filing fresh affidavits, though the specific permission to amend the petitions was not taken. After fresh affidavits were filed by the petitioners from time to time, the Government side also took some time in filing the counter affidavits. Therefore, we do not blame the Government. The arguments also went on for a considerable long time. Under these circumstances, we are of the opinion that the petitioners would be entitled to get the salary only upto the end of the session 2003-2004, and not further salary. We are aware that we are passing this order causing financial burden to the Government, but if the order of the Court was continuing and that order was not varied by the Court, then these teachers would be entitled to get the salary till the end of the Session 2003-2004. That is the only relief that can be given to the petitioners.

24. All the writ petitions are, therefore, dismissed except for the last relief that we have granted.

25. Under these circumstances, we see no reason to order costs.

26. No other contention was raised before us except the one, which we have considered in this judgment. ***

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IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.448 of 2005 (M/B) D.D. 6.5.2005 Hon’ble Cyriac Joseph, C.J. & Hon’ble M.M.Ghildiyal, J.

Arshad Jamil

...

Petitioner

...

Respondents

Vs. State of Uttaranchal & Ors. Reservation: Caste Certificate issued to the petitioner was cancelled as per order dated 2.3.2005 after holding an enquiry - The petitioner challenged the same on the ground that before cancelling the Caste Certificate no notice was issued to the petitioner and no opportunity was given to file his objections – The High Court rejected the contention of the respondent–State Government that notice was given at the time of holding the enquiry which led to the cancellation of the certificate. Held: That even though if the petitioner had participated in the enquiry which was held after issuing notice to the petitioner wherein it was held that he was not domicile of Uttaranchal the petitioner was entitled to a notice containing the proposal to cancel the Caste Certificate already issued giving him an opportunity to file his objections if any - However liberty was reserved to the respondent – Government to issue notice to the petitioner proposing to cancel the caste certificate already issued and to pass fresh order in accordance with law after considering the objections if any of the petitioner. ORDER The petitioner was given a caste certificate by the then Tahsildar, Roorkee, District Haridwar on 29.6.2002. On the basis of a complaint received about the right of the petitioner to get the said caste certificate, an enquiry was conducted and on the basis of the finding in the enquiry, the caste certificate dated 29.6.2002 has been cancelled by the third respondent Tahsildar Roorkee as per Annexure 1 Order dated 2.3.2005. Aggrieved by the said order of cancellation of the caste certificate the petitioner has filed the writ petition. 2. We have heard Mr.Sudhanshu Dhuha, Senior Advocate assisted by Mr.D.S.Pathi, Advocate for the petitioner and Mr.K.P.Upadhyaya, learned Standing Counsel for the State of Uttaranchal

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who accepted notice for respondents No.1 to 3. 3. The main ground of attack against Annexure 1 Order is that it was passed in violation of the principles of natural justice. It is contended that before cancelling the caste certificate issued to the petitioner, the third respondent did not issue any notice to the petitioner and give him an opportunity to state his objections, if any to the proposal. Annexure 1 Order also shows that no such notice was issued to the petitioner and no opportunity was given to him to state his objections to the proposal. Learned Sanding Counsel appearing for the respondents submitted that Annexure 1 Order was issued on the basis of the finding in an enquiry conducted by a committee into the allegation that the caste certificate was wrongly issued to the petitioner and that the Government had issued notice to the petitioner before deciding that the petitioner is not a domicile of Uttaranchal and therefore, it was not necessary to issue notice to the petitioner again by the third respondent before issuing Annexure 1 Order. 4. We do not agree with the above contention of the learned Standing Counsel. Even if the petitioner had participated in the enquiry stated to have been conducted by a committee and even if a finding was entered by the Committee against the petitioner and even if the State Government had, after issuing notice to the petitioner decided that he is not a domicile of Uttaranchal, the petitioner was entitled to a notice containing the proposal to cancel the caste certificate already issued and giving him an opportunity to state his objections, if any, to the proposal. If the petitioner was given such a notice, he would have got an opportunity even to assail the finding of the committee and to state why the findings of the committee should not be acted upon by the third respondent or why the decision of the Government cannot call for cancellation of the certificate already issued. Therefore, we are of the view that Annexure 1 Order passed in violation of the principles of natural justice and hence is liable to be quashed on that ground. We make it clear that we have not considered any other contention raised by the petitioner and Annexure 1 Order is being quashed only on the ground of violation of the principles of natural justice. 5. In the above circumstances, Annexure 1 Order dated 2.3.2005 is quashed. It will be open to the third respondent to issue notice to the petitioner proposing to cancel the caste certificate already issued to him and giving him reasonable opportunity to state his objections, if any, to the proposal and to pass fresh order in accordance with law after considering the objections, if any, submitted by the petitioner. 6. The Writ petition is disposed of as above. ***