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UTTARANCHAL PUBLIC SERVICE

COMMISSION

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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

Vs.

Sidharth Srivastava & Ors. ... Respondents

(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 All-

India 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, ScheduledTribes 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

Honble S.H.Kapadia C.J.& Honble M.M.Ghidiyal,J.

Bharat Nandan Pandey ... Petitioner

Vs.

State of Uttaranchal & Anr. ... Respondents

Age relaxation:

The petitioner whose date of birth is 9 th 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 andothers.

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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--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--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 12 th

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 ServiceCommission. 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 becausemany 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 27 th of December, 2001.

(b) Uttaranchal Public Service Commission shall also interview all the candidates

who have reached maximum age of 40 years upto 27 th 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

Honble P.C.Verma, A.C.J. & Honble Rajesh Tandon, J.

Deepak Kumar & Others ... Petitioners

Vs.

State of Uttaranchal & Others ... Respondents

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 givenappointment 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 besusceptible 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

Honble Shri. V.S.Sirpurkar, C.J. & Honble Shri. J.C.S.Rawat, J.

Pradeep Singh ... Petitioner

Vs.

State of Uttaranchal & Others ... Respondents

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 finalexamination.

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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 thatthe 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

HONBLE V.S.SIRPURKAR, C.J.,

HONBLE P.C.VERMA, J.

Dr. Smt.Kamla Fuloria ... Petitioner

Vs.

State of Uttaranchal & Others ... Respondents

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 ofreservations under the U.P. Public Services (Reservation of SC, ST & OBC) Act, 1994 is valid.

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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 Honble 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 lecturersin 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./2001-

3(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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(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 extra-territorial 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 ofIndia.

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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 tothem 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 ServiceCommission. 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 part-

time 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 thepurpose 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 Sains 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 Kumars 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 Kumars 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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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