High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.

CWP No. 9093/2014, 2145 , 2789,

2814, 3131, 3140, 3311, 3467, 3468,

4229 of 2015, 267, 674, 1157, 1163,

1164, 1165, 1166, 1167, 1168, 1189,

1190, 1191, 1192, 1193, 1194, 1195,

1279, 1606, 1711, 1725, 1855, 199 1

and 2762 of 2016

Reserved on: 26.10.2016

Decided on: 2.12. 2016

___________________________________________________

1. CWP No. 9093/2014

Pawan Kumar. …Petitioner.

Versus

Union of India and another. …Respondents.

2. CWP No. 2145/2015

Rama Kumari. …Petitioner.

Versus

Union of India and others. …Respondents.

3. CWP No. 2789/2015

Anil Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

4. CWP No. 2814/2015

Leela Vati. …Petitioner.

Versus

Union of India and others. …Respondents.

5. CWP No. 3131/2015

Asha Devi. …Petitioner.

Versus

Union of India and others. …Respondents.

6. CWP No.3140/2015

Ex. Dfr. Gurdial Singh . …Petitioner.

Versus

Union of India and others. …Respondents.

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7. CWP No.3311/2015

Saurabh Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

8. CWP No.3467/2015

Sanjeev Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

9. CWP No.3468/2015

Sangeeta Devi. …Petitioner.

Versus

Union of India and others. …Respondents.

10. CWP No.4229/2015

Anju Sachdeva. …Petitioner.

Versus

Union of India and others. …Respondents.

11. CWP No.267/2016

Dr. Kapil Dev. …Petitioner.

Versus

Union of India and others. …Respondents.

12. CWP No.674/2016

Ankita Sharma. …Petitioner.

Versus

Union of India and others. …Respondents.

13. CWP No.1157/2016

Sonu. …Petitioner.

Versus

Union of India and others. …Respondents.

14. CWP No.1163/2016

Kumar Gurung. …Petitioner.

Versus

Union of India and others. …Respondents.

15. CWP No.1164/2016

Suman Lata. …Petitioner.

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Versus

Union of India and others. …Respondents.

16. CWP No.1165/2016

Vipan Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

17. CWP No.1166/2016

Vandna Athwal. …Petitioner.

Versus

Union of India and others. …Respondents.

18. CWP No.1167/2016

Arun Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

19. CWP No.1168/2016

Amit Bhatia. …Petitioner.

Versus

Union of India and others. …Respondents.

20. CWP No.1189/2016

Ex. NK Surender Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

21. CWP No.1190/2016

Ex. Sepoy Sunil Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

22. CWP No.1191/2016

Anil Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

23. CWP No.1192/2016

Santosh Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

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24. CWP No.1193/2016

Sonu Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

25. CWP No.1194/2016

Parween Kumari. …Petitioner.

Versus

Union of India and others. …Respondents.

26. CWP No.1195/2016

Ex. Havaldar Rajinder Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

27. CWP No.1279/2016

Dr. Madan Mohan Marol. …Petitioner.

Versus

Union of India and others. …Respondents.

28. CWP No.1606/2016

Dr. Vishal Sharma. …Petitioner.

Versus

Union of India and others. …Respondents.

29. CWP No.1711/2016

Hema Devi. …Petitioner.

Versus

Union of India and others. …Respondents.

30. CWP No.1725/2016

Chain Singh. …Petitioner.

Versus

Union of India and others. …Respondents.

31. CWP No.1855/2016

Ex. PO Ravinder Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

32. CWP No.1991/2016

Ashwani Kumar. …Petitioner.

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Versus

Union of India and others. …Respondents.

33. CWP No.2762/2016

Ex. Suresh Kumar. …Petitioner.

Versus

Union of India and others. …Respondents.

_____________________________________________________________

Coram:

Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice

Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Hon’ble Mr. Justice P.S. Rana, Judge.

Whether approved for reporting?

1

Yes

For the Petitioner(s): Mr. Dilip Sharma, Sr. Advocate with Mr. J.L.

Bhardwaj, Mr. Tara Singh Chauhan, Mr.

Adarsh K. Vashista, Mr. G.R. Palsara and Mr.

Manish Sharma, Advocates for the respective

petitioners.

For the Respondents: Mr. Shashi Sirsoo, Central Government

Counsel for respondents in CWP Nos. 3468,

4229 of 2015, 1163, 1164, 1157 and 1195 of

2016

Ms. Rita Goswami, Central Government

Counsel for respondents/Union of India in

CWP Nos. 3311 of 2015, 1168, 1194 and 1855

of 2016.

Mr. Neel Kamal Sharma, Central Govt.

Counsel for respondents/Union of India in

CWP Nos. 1193 and 1606 of 2016.

Mr. Vikas Rathour, Central Govt. Counsel for

respondents/Union of India, in CWP No.

1191 of 2016.

Mr. Desh Raj Thakur, Central Govt. Counsel

for respondents/Union of India in CWP No.

1189 of 2016.

1

Whether reporters of the local papers may be allowed to see the judgment? Yes

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Mr. Nipun Sharma vice Mr. Vinod Thakur,

Central Govt. Counsel for respondents/Union

of India in CWP No. 1190 of 2016.

Mr. Ashok Sharma, Asstt. Solicitor General of

India with Mr. Angrez Kapoor, Advocate for

the respondents/Union of India in the

remaining writ petitions.

_________________________________________________________

Justice Tarlok Singh Chauhan, Judge:

In view of the divergent views in two judgments

by the learned Division Benches of this Court, the first

being CWP No. 1282/2014, titled as Ashok Dutt

Sharma versus Union of India and others, decided

on 24.3.2014 and the second being CWP No.

4064/2015, titled as Bir Pal Singh versus Union of

India and others decided on 1.1.2016, a learned

Division Bench of this Court vide order dated

16.3.2016 in CWP No. 9093/2014, referred the matter

for consideration to a larger Bench.

2. The order of reference reads thus:

“Mr. Ashok Sharma, learned Assistant Solicitor General of

India, has placed on record photocopies of the two

judgments passed by the two Coordinate Benches of this

Court and stated that both the judgments, involving the

same issue as has been urged in the instant writ petition,

are contradictory to each other. We have gone through the

judgments and are of the opinion that the instant writ

petition is required to be heard by a larger Bench. The

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matter be processed accordingly on the administrative

side.”

3. The seminal question that emanates in all

these writ petitions is: whether an employee, who is

appointed purely on contractual basis for a fixed

tenure in accordance with non-statutory Scheme, can

claim that his appointment be made co-terminus with

the scheme or in the alternative his services be

continued till the age of superannuation or would his

services be liable to be terminated on the expiry of the

period of contract, as is provided for in the Scheme.

4. The Ministry of Defence, Government of

India, in the year 2003, introduced the Ex-Servicemen

Contributory Health Scheme (hereinafter referred to as

the “Scheme”). This scheme aimed to provide

medicare to ex-servicemen and their dependants

through a network of polyclinics and service medical

facilities spread across the country. The Scheme was

a contributory Scheme and was to extend the earlier

referred benefits on payment of contribution. The

appointment of the staff was to be on contractual

basis. Para 4 of the Scheme reads as under:

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"4. When requisite percentage of ex-servicemen under the

reservation quota are not available, specific certificate

signed by GOC Area to that effect should be placed on

record and thereafter the vacancies utilized by employing

a suitable civilian. The GOC Area's sanction for

employment of the civilian staff on contract will be valid

for a period of twelve months only. During this period

efforts will be made to appoint a suitable Ex-Serviceman."

Under the terms and conditions of the contractual

appointment, para 8 (d) stipulates duration of

employment which reads as under :-

"TERMS AND CONDITIONS FOR CONTRACTUAL

EMPLOYMENT

8. The detailed criteria are listed in Appendix-‘A’ and ‘B’.

The general terms and conditions for employment of the

Medical/Para medical/Non medical staff under the ECHS

are listed below:-

XXX XXX XXX

(d) Duration of employment. The employment of the staff

will be entirely contractual in nature and will be normally

for a period of two years at the maximum subject to

review of their conduct and performance after twelve

months."

Para 14 relates to contract, wherein tenure of contract

appointment has been stated that it is for 2 years and

review of appointment after 12 months. Extract of para 14

reads as under :-

"CONTRACT

14. Contractual agreements in the prescribed format will

be signed by the Station headquarters with the individual

candidates and the contracting agency as the case may be

:-

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(a) Contract with individual employee. The contractual

agreement between the contractual employees and the

Station Headquarters will include the following :-

(i) Designation of Appointment.

(ii) Place of appointment.

(iii) Contractual nature of appointment for period of two

years.

(iv) Review of appointment after 12 months."

The Scheme also provides for procedure for disciplinary

action. Para 15 to 17 reads as under :-

"PROCEDURE FOR DISCIPLINARY ACTION

15. In case an ECHS contractual employee is involved in

any act of professional misconduct, unethical practices,

medical negligence or administrative negligence,

disciplinary action will be initiated against the employee

and his contract may be terminated after giving a show

cause notice without prejudice to any further action that

may be deemed fit and initiated considering the nature of

the offence committed.

16. The Station Commander will initiate the action for

termination of contract on recommendations of the

concerned O I/C Polyclinic. A show cause notice will be

given to the employee detailing the nature of offences. An

inquiry ordered by the Stn Cdr will go into details of the

case including the replies to the show cause notice of the

employee. The Station Commander may also take legal

action under the existing laws of the land for any act

listed in para 15 above.

17. The Appointing authority will be the authority for termination of

contract."

5. It is not in dispute that it is in pursuance

to the aforesaid Scheme that all the petitioners have

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been appointed on different dates on contractual basis

and on cessation of their contractual service, their

services have been dispensed with and aggrieved

thereby have filed these writ petitions.

6. While construing the provisions of the

Scheme, a Division Bench of this Court in Ashok Dutt

Sharma’s case (supra) dismissed the petition by

observing as under:

“Petitioner’s appointment as Lab Assistant was on contract

basis. We find that the period of contract has come to an end in

the month of February, 2014 and as such we find no illegality

with the impugned order dated 14.2.2014 (Annexure P -2),

whereby petitioner’s contractual employment stands

terminated. Petition stands disposed of accordingly, so also

pending application(s), if any.”

7. Whereas another Division Bench of this

Court in Bir Pal Singh’s case (supra), and earlier to

that in case of Govind Ram and others vs. Union of

India and others, CWP No.4446/2014 decided on

16.12.2015, allowed the petition by observing as

under:

11. The Hon'ble Apex Court in a catena of decisions has

deprecated the endeavours on the part of the employer to

displace contractual appointees by substituting them with

appointees alike to the petitioners herein. It appears that

the diktat of the verdicts of the Hon'ble Apex Court

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frowning upon the employer resorting to displace or

dislodge the services of contractual appointees by

concerting to substitute or replace them by appointees

whose terms of appointments bear an affinity or are alike to the

appointments on a contractual basis of the petitioner herein

stands openly irrevered by the respondents herein. The

irreverence meted by the respondents herein to the principle

aforesaid encapsulated in verdicts of the Hon'ble Apex Court

reproaching the employer against its substituting contractual

appointees by concerting their replacement by appointments on

an alike basis, has led the respondents herein to make an

indefensible endeavour to by issuing advertisements elicit

applications from desirous aspirants for being considered for

selection and appointment against post on a contractual basis

which hitherto on an alike contractual basis was or stand

manned by the petitioner herein. The said endeavour warrants

its being baulked especially when its being permitted to be

carried forward would overwhelm the experience gained by the

petitioner herein on the post whereon he stood/stand appointed

on a contractual basis defeating the salutary purpose of skilled

man power manning the polyclinics established under ECHS for

hence purveying optimum medical care to the stakeholders.”

8. We have heard the learned counsel for the

parties and have gone through the material placed on

record carefully.

9. Mr. Dilip Sharma, learned Senior Advocate

assisted by Mr. Tara Singh Chauhan, Advocate would

vehemently contend that ad hoc or temporary

employee cannot be replaced by other ad hoc or

temporary employee and would place heavy reliance

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upon the judgment rendered by the Hon’ble Bench of

three Judges of the Hon’ble Supreme Court in State

of Haryana and others etc . vs. Piara Singh and

others etc., AIR 1992 SC 2130, more particularly, the

following observations:

“[25]. Before parting with this case, we think it appropriate to

say a few words concerning the issue of regularisation of ad

hoc/temporary employees in government service.

Secondly, an ad hoc or temporary employee should not

be replaced by another ad hoc or temporary employee should

not be replaced only by a regularly selected employee. This is

necessary to avoid arbitrary action on the part of the appointing

authority.

10. The aforesaid ratio is not clearly applicable

to the facts obtaining in the instant cases as it cannot

be disputed that the petitioners herein were selected

and thereafter appointed pursuant to an

advertisement, which never envisaged appointment on

permanent basis and were to be appointed only on

contractual basis.

11. Once the appointments were purely

contractual then by efflux of time as envisaged in the

contract itself the same came to an end and the

persons holding such posts can have no right to

continue or renewal of contract of service as a matter

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of right, and therefore, such cases are clearly

distinguishable from repeated and ad hoc

appointments, which was adopted as a matter of

practice by the State Government in case of Piara

Singh’s case (supra).

12. The difference in the fact situation

obtaining in the instant cases vis-à-vis Piara Singh’s

case (supra) is stark and clear. In the instant cases,

the petitioners were appointed on fixed term contract

and after lapse of period of service are clai ming

continuity of the same, and therefore, their services

cannot be equated with the ad hoc employment as was

in the case of Piara Singh (supra). The ad hoc

appointment against a vacancy by the State repeated

with number of vacancies, one after another, was

construed to be an unfair practice by the Hon’ble

Supreme Court and it accordingly directed the State to

frame a scheme for regularization of such employees

consistent with the reservation policy, if not already

framed. Therefore, the judgment in Piara Singh’s case

cannot be blindly applied to the facts of the present

cases where the petitioners have been appointed on a

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fixed term contractual appointment and after lapse of

the period of contract, are claiming the continuation of

the term by excluding other persons from seeking

similar term of appointment.

13. The fixed term contractual appointment, as

envisaged under the Scheme, is not only to provide

medical facilities to the ex-servicemen but at the same

time is a mode of adjusting the personnel

superannuating from the Army for a short period so as

to enable them to adjust suitably even after the tenure

with the ECHS Clinics. Thus, the avowed object is to

engage such employment to a large number of

persons, therefore, the persons, who are given fixed

term service contract, cannot claim any right of

renewal of such employment after the period of

contract is over. The same can neither be equated

with repeated ad hoc employment nor can it be termed

as unfair practice. It lies best in the wisdom of the

employer to grant such appointments on contract to

various terms and unless the decision making process

is established to be arbitrary on the face of it, the

Court will be loath to exercise its extra-ordinary

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jurisdiction to quash such appointment of fixed term

basis.

14. A careful reading of the letter of

appointment as also the Scheme leaves no manner of

doubt that the appointment offered to the petitioners

was limited one. The respondents at any given time

had never offered to the petitioners that they would

continue in service till the existence of the Scheme or

till the time they did not attain the age of

superannuation. It is not even the case of the

petitioners that there was any uncertainty or

ambiguity in the appointments made by the

respondents in so far as the tenure on the post to

which they were appointed.

15. There is a clear distinction between public

employment governed by the statutory rules and

private employment governed purely by contract. No

doubt with the development of law, there has been a

paradigm shift with regard to judicial review of

administrative action whereby the writ court can

examine the validity of termination order passed by

the public authority and it is no longer open to the

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authority passing the order to argue that the action in

the realm of contract is not open to judicial review.

However, the scope of interference of judicial review is

confined and limited in its scope. The writ court is

entitled to judicially review the action and determine

whether there wa s any illegality, perversity,

unreasonableness, unfairness or irrationality that

would vitiate the action, no matter the action is in the

realm of contract.

16. However, judicial review cannot extend to

the Court acting as an appellate authority sitting in

judgment over the decision. The Court cannot sit in

the arm chair of the administrator to decide whether

more reasonable decision or course of action could

have been taken in the circumstances. (Refer Gridco

Ltd. & Another vs. Sadananda Doloi & Ors , AIR

2012 SC 729).

17. The petitioners have failed to place before

this Court any material to show that the action of the

respondents is either unreasonable or unfair or

perverse or irrational. As observed earlier, the scheme

placed on record governing the service conditions of

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the petitioners makes it abundantly clear that

petitioners in all these petitions had been appointed

on contractual basis, that too, on a non -statutory

scheme.

18. Faced with this situation, learned counsel

for the petitioners would then contend that the action

of the respondents in terminating and re-appointing

the petitioners was required to be avoided a s the

petitioners were entitled to be continued as long as the

scheme continued or till the time they did not attain

the age of superannuation and as such the action of

the respondents being contrary to the principles of

service jurisprudence was liable to be quashed.

19. In order to buttress their submission

reliance is placed on the judgment of the Hon’ble

Supreme Court in Mohd. Abdul Kadir and another

vs. Director General of Police, Assam and others

(2009) 6 SCC 611 wherein it was held as under:

18. We are therefore of the view that the learned Single Judge

was justified in observing that the process of termination and

re-appointment every year should be avoided and the appellants

should be continued as long as the Scheme continues, but

purely on ad hoc and temporary basis, co-terminus with the

scheme. The circular dated 17.3.1995 directing artificial breaks

by annual terminations followed by fresh appointment, being

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contrary to the PIF Additional Scheme and contrary to the

principles of service jurisprudence, is liable to be is quashed.

[19] Before parting we may however refer to two

aspects. One is with reference to the term of the scheme

itself. Second is with reference to the pay.

20. The PIF Scheme has been in force for nearly

five decades. PIF Additional Scheme has been in force for

more than two decades. The object of the Scheme is

detection and deportation of illegal immigrants/fresh

infiltrators/re- infiltrators, establishment of second line of

defence on Assam Bangladesh Border to man the areas

not covered by Border Security Force and monitoring the

occurrences on international border. The staff entrusted

with such sensitive functions and duties can work

wholeheartedly and with commitment in adverse and

hostile conditions only if they have security of tenure,

without having to constantly worry about their future. If

the task under the scheme is perennial, there is no point

in executing it as a "temporary" Scheme, though to start

with it might have been thought that the task was a short

term task.

21. Another aspect to be noticed is that duties

discharged by the Border staff belonging to Assam Police

Border Organization under the PIF Scheme is said to be

somewhat similar or parallel to the duties discharged by

regular forces like Border Security Force and Assam

Special Peace keeping Force. Further, part of the very

same Border Organization under PIF Scheme is manned

by regular police personnel. Therefore, if those working as

ad hoc or temporary staff for decades on, are converted to

regular permanent staff, that would boost their morale

and efficiency.

22. We are conscious of the fact that the issue

is a matter of policy having financial and other

implications. But where an issue involving public interest

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has not engaged the attention of those concerned with

policy, or where the failure to take prompt decision on a

pending issue is likely to be detrimental to public interest,

courts will be failing in their duty if they do not draw

attention of the concerned authorities to the issue

involved in appropriate cases. While courts cannot be and

should not be makers of policy, they can certainly be

catalysts, when there is a need for a policy or a change in

policy.

23. Another issue requiring consideration by the

respondents is the question of pay. The order of

appointment in the case of first appellant shows that he

was appointed in a time scale of pay. First appellant and

similarly placed will therefore be entitled to increments in

terms of the pay scale. Second appellant was appointed

on a fixed pay. But even in the case of second appellant

and others appointed on fixed pay, it is alleged that the

State Government had treated their app ointments as

being in a time scale of pay and claiming reimbursement

from the Central Government on that basis.

24. If the State Government has treated the

appointments on fixed salary as appointments on a time

scale, and claimed reimbursement from the Government

of India on that basis, the State Government should, in all

fairness, pass on the benefit of such time-scale of pay to

the employees concerned. When persons are engaged

under the same Scheme, discriminatory treatment, that is

extending benefit of increments to some and denying the

said benefit to others, should be avoided.

20. We are unable to agree with the aforesaid

contention for the reason already set out hereinabove.

Apart from that, it is beyond cavil that the petitioners

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are contractual employees, and therefore, would have

a right to remain in employment only for the period

mentioned in the contract, that too, subject to other

conditions contained in the Scheme, but in no manner

would have a right to claim that their appointments

now be treated as co-terminus with the project.

21. It may be noticed that the petitioners had

voluntarily accepted the appointment granted to them

subject to the conditions clearly stipulated in the

scheme. These appointments subject to the conditions

have been accepted with their eyes wide open,

therefore, now the petitioners cannot turn around

claiming higher rights ignoring the conditions subject

to which the appointments had been accepted.

22. Indubitably, there is an age of

superannuation provided in the Scheme; however, the

same is only in the nature of providing outer limit to

which the employment or contract could have been

extended. It does not suggest that there was any

specific or implied condition of employment that the

petitioners would continue to serve till they attain the

age of superannuation. The extensions given to the

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petitioners were subject to and in accordance with the

terms and conditions stipulated in the scheme. The

appointment letters, in favour of the petitioners,

specifically stated that their services would be

governed under the Scheme. The Scheme itself makes

manifest that the appointments under the Scheme

were only on contractual basis. That being so, it is

difficult to see how the appointments could be

continued beyond what was en visaged and provided

for therein.

23. Learned counsel for the petitioners would

then contend that having undergone a selection

process, the petitioners had every right to continue in

service as their appointments cannot be said to be

backdoor appointments.

24. Indisputably, the Scheme under which the

petitioners have been appointed does prescribe a mode

of selection but looking to the nature of appointment,

more especially, the tenure thereof, it cannot be said

that the best talent would apply, and therefore, even

though such appointments may not amount to

backdoor appointments yet nevertheless they would be

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side door appointments and depend upon the contract

service.

25. Moreover, advertising the posts, as fixed

term contractual appointment initially and thereafter

permitting the incumbents so appointed to continue

and making their appointments co-terminus with the

Scheme or permitting them to continue in service till

the age of superannuation, would amount to playing

fraud with those multitude of people, wh o would

otherwise be eligible to apply and may have skipped

the employment process thinking that it is only for a

temporary period or a contractual period.

26. In addition to the aforesaid, in case the

contention of the petitioners is accepted that their

services be made co-terminus with the Scheme or they

be continued till the age of retirement, then this would

amount to rewriting the contract by way of

interpretation, contrary to the terms and conditions,

that are agreed by the parties to the contract, besides

substituting the very Scheme under which they have

been appointed. Obviously, such a course is legally

impermissible.

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27. Learned counsel for the petitioners would

then argue that some of the petitioners have put in 8-

10 years of service, and therefore, their services

cannot be dispensed with. Even this contention

cannot be accepted as the Hon’ble Constitution Bench

of the Hon’ble Supreme Court in Secretary, State of

Karnataka and others vs. Uma Devi (3) and others,

(2006) 4 SCC 1 had clearly held that the courts are not

to be swayed by the consideration that the concerned

person has worked for some time or for a considerable

length of time as the person, who is engaged on such

appointment is temporary or casual or contractual, is

fully aware of the nature of his employment and

having accepted such appointments with eyes open

cannot turn around and claim permanency or

continuation as this would create another mode of

employment, which is not permissible. It is relevant to

reproduce relevant observations as under:

[45] While directing that appointments, temporary or

casual, be regularized or made permanent, courts are

swayed by the fact that the concerned person has worked

for some time and in some cases for a considerable length

of time. It is not as if the person who accepts an

engagement either temporary or casual in nature, is not

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High Court of H.P. 24

aware of the nature of his employment. He accepts the

employment with eyes open. It may be true that he is not

in a position to bargain not at arms length since he might

have been searching for some employment so as to eke

out his livelihood and accepts whatever he gets. But on

that ground alone, it would not be appropriate to jettison

the constitutional scheme of appointment and to take the

view that a person who has temporarily or casually got

employed should be directed to be continued

permanently. By doing so, it will be creating another mode

of public appointment which is not permissible. If the

court were to void a contractual employment of this

nature on the ground that the parties were not having

equal bargaining power, that too would not enable the

court to grant any relief to that employee. A total embargo

on such casual or temporary employment is not possible,

given the exigencies of administration and if imposed,

would only mean that some people who at least get

employment temporarily, contractually or casually, would

not be getting even that employment when securing of

such employment brings at least some succor to them.

After all, innumerable citizens of our vast country are in

search of employment and one is not compelled to accept

a casual or temporary employment if one is not inclined to

go in for such an employment. It is in that context that

one has to proceed on the basis that the employment was

accepted fully knowing the nature of it and the

consequences flowing from it. In other, words, even while

accepting the employment, the person concerned knows

the nature of his employment. It is not an appointment to

a post in the real sense of the term. The claim acquired by

him in the post in which he is temporarily employed or

the interest in that post cannot be considered to be of

such a magnitude as to enable the giving up of the

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High Court of H.P. 25

procedure established, for making regular appointments

to available posts in the services of the State. The

argument that since one has been working for some time

in the post, it will not be just to discontinue him, even

though he was aware of the nature of the employment

when he first took it up, is not one that would enable the

jettisoning of the procedure established by law for public

employment and would have to fail when tested on the

touchstone of constitutionality and equality of opportunity

enshrined in Article 14 of the constitution of India.

28. It needs no reiteration that framing of

Scheme by the respondents is a policy matter and it

is more than settled that it is neither within

the domain of the Courts nor the scope of

judicial review to embark upon an inquiry as to

whether a particular public Scheme is wise or better

public policy can be evolved. Nor are the Courts

inclined to strike down a policy at the behest of the

petitioner merely because it has been urged that a

different policy would have been formulated or more

scientific or logical.

29. As a last ditch effort, learned counsel for

the petitioners would then contend that they have

legitimate expectation to continue in service.

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High Court of H.P. 26

30. As already observed earlier, appointment

offered to the petitioners was limited one and the

respondents had not at any given time offered to the

petitioners that they would continue in service till the

existence of Scheme or till the date they attain the age

of superannuation. It is not even the case of the

petitioners that there was any uncertainty or

ambiguity in the appointments made by the

respondents insofar as the tenure to which they were

appointed. Therefore, the question of legitimate

expectation to continue in service does not arise. The

petitioners at the time of entering into contractual

appointment were fully aware of the consequences of

appointments being contractual in nature, therefore,

such a person(s) cannot invoke the theory of legitimate

expectation for being continued in the post.

31. Identical issue has already been considered

by the Constitution Bench in Uma Devi’s case (supra)

and it was negated by observing as under:

[46] Learned senior counsel for some of the respondents

argued that on the basis of the doctrine of legitimate

expectation, the employees, especially of the Commercial

taxes Department, should be directed to be regularized

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High Court of H.P. 27

since the decisions in dharwad (supra) , Piara Singh

(supra) , jacob, and Gujarat Agricultural University and

the like, have given rise to an expectation in them that

their services would also be regularized. The doctrine can

be invoked if the decisions of the Administrative authority

affect the person by depriving him of some benefit or

advantage which either (i) he had in the past been

permitted by the decision-maker to enjoy and which he

can legitimately expect to be permitted to continue to do

until there have been communicated to him some rational

grounds for withdrawing it on which he has been given an

opportunity to comment; or (ii) he has received assurance

from the decision- maker that they will not be withdrawn

without giving him first an opportunity of advancing

reasons for contending that they should not be withdrawn

{see Lord diplock in Council of Civil Service unions v.

Minister for the Civil Service, national Buildings

Construction Corpn. v. S. Ra ghunathan, and Dr.

Chanchal goyal v. State of Rajasthan. There is no case

that any assurance was given by the government or the

concerned department while making the appointment on

daily wages that the status conferred on him will not be

withdrawn until some rational reason comes into

existence for withdrawing it. The very engagement was

against the constitutional scheme. Though, the

commissioner of the Commercial taxes Department

sought to get the appointments made permanent, there is

no case that at the time of appointment any promise was

held out. No such promise could also have been held out

in view of the circulars and directives issued by the

Government after the dharwad decision. Though, there is

a case that the State had made regularizations in the past

of similarly situated employees, the fact remains that

such regularizations were done only pursuant to judicial

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High Court of H.P. 28

directions, either of the Administrative Tribunal or of the

High Court and in some case by this court. Moreover, the

invocation of the doctrine of legitimate expectation cannot

enable the employees to claim that they must be made

permanent or they. must be regularized in the service

though they had not been selected in terms of the rules

for appointment. The fact that in certain cases the Court

had directed regularization of the employees involved in

those cases cannot be made use of to found a claim based

on legitimate expectation. The argument if accepted would

also run counter to the constitutional mandate. The

argument in that behalf has therefore to be rejected.

[47] When a person enters a temporary

employment or gets engagement as a contractual or

casual worker and the engagement is not based on a

proper selection as recognized by the relevant rules or

procedure, he is aware of the conseq uences of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed in the post

when an appointment to the post could be made only by

following a proper procedure for selection and in

concerned cases, in consultation with the Public Service

commission. Therefore, the theory of legitimate

expectation cannot be successfully advanced by

temporary, contractual or casual employees. It cannot

also be held that the state has held out any promise while

engaging these persons either to continue them where

they are or to make them permanent. The State cannot

constitutionally make such a promise. It is also obvious

that the theory cannot be invoked to seek a positive relief

of being made permanent in the post.

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32. In view of aforesaid discussion, the question

raised in these petitions is answered by holding that the

petitioners who have been appointed purely on contractual

basis for a fixed term, in accordance with the non-statutory

scheme, have no right to claim higher right than what is

envisaged in their contract of the appointment and the

same would automatically come to an end by efflux of time

in terms of the contract. The petitioners holding such

posts have no right to continue or claim renewal of the

contract, save and except, if so provided in the scheme

itself. Therefore, they cannot lay claim that the

appointments be made co-terminus with the scheme or in

the alternative the services be continued till they attain the

age of superannuation.

33. Moreover, the petitioners having accepted the

offer of appointment with eyes open cannot turn around by

claiming higher rights ignoring the conditions subject to

which the appointments had been accepted. There was

no uncertainty or ambiguity in the appointments made by

the respondents insofar as the tenure to which they were

appointed.

34. Evidently, the petitioners at the time of

entering into contractual appointments were fully aware of

the appointments being contractual in nature. Therefore,

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High Court of H.P. 30

they cannot also invoke the theory of legitimate expectation

for being continued in the posts.

35. Having said so, we are of the considered

opinion that the view taken by the learned Division Bench

in Bir Pal Singh’s and Govind Ram’s cases does not lay

down the correct law and are accordingly over ruled and

the view taken by Coordinate Division Bench in Ashok

Dutt Sharma’s case is affirmed.

36. Now that we have held that the petitioners

have no right to continue beyond the period as stipulated

in the contract, there is no need to refer these matters back

to the learned Division Bench for deciding individual cases

as none of these petitions are maintainable and accordingly

are dismissed. Pending application(s), if any, also stands

disposed of leaving the parties to bear their own costs.

(Mansoor Ahmad Mir),

Chief Justice

(Tarlok Singh Chauhan),

Judge.

(P.S. Rana),

Judge.

2.12. 2016*awasthi*

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