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2012 DIGILAW 154 (HP)

Ashok Kumar Patial v. State of H. P.

2012-04-03

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in these writ petitions, the same were heard together and are being disposed of by this common judgment. However, in order to maintain clarity, the facts of CWP No. 7447 of 2010-H have been taken into consideration. C.W.P. No. 7447 of 2010-H Petitioner was enrolled in the Indian Army on 21.10.1987 and was discharged on 30.04.2005. He got his name registered with Ex-servicemen Employment Cell, Himachal Pradesh, Directorate of Sainik Welfare, Himachal Pradesh at Hamirpur. His name was sponsored by the Directorate of Sainik Welfare, Himachal Pradesh, Hamirpur on 05.09.2008 for the post of T.G.T. (Arts). He was offered appointment letter on 20.12.2008 vide Annexure P-4 on contractual basis. 2. Mr. P.P. Chauhan, learned counsel for the petitioners has strenuously argued that the petitioners ought to have been offered regular appointment instead of contractual basis. According to him, the decision to appoint the teachers on contract basis has been taken for the first time only in view of the Recruitment and Promotion Rules notified on 26th October, 2009 (Annexure P-5). In other words, his submission is that the case of 1 Whether the reporters of the local papers may be allowed to see the judgment? petitioner was required to be considered as per the old recruitment and promotion Rules called The Himachal Pradesh, Education department Class-III (School and Inspection Cadre), Service Rules, 1973. He further argued that similarly, the names of the petitioners in all other petitions were also sponsored and they have been issued appointments on contractual basis. 3. Mr. Rajinder Dogra, learned Additional Advocate General has justified the appointments of petitioners on contractual basis. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. In the instant case, as per the reply filed by the respondent-State, the State has sanctioned the posts to be filled up on contractual basis only vide letter No. Shiksha-II Kha(1) 3/98-loose, dated 16.06.2008. In sequel thereto, the requisition was sent to all the Employment Exchanges, including Directorate of Sainik Welfare, Himachal Pradesh, Hamirpur. The name of the petitioner has been recommended/sponsored by the Director on 05.09.2008, pursuant to which he has been offered appointment letter. The manner in which the posts are to be filled up is the prerogative of the employer. In sequel thereto, the requisition was sent to all the Employment Exchanges, including Directorate of Sainik Welfare, Himachal Pradesh, Hamirpur. The name of the petitioner has been recommended/sponsored by the Director on 05.09.2008, pursuant to which he has been offered appointment letter. The manner in which the posts are to be filled up is the prerogative of the employer. It is a policy matter and the scope of judicial review in these matters is very limited. The decision whether the posts are to be filled up on ad hoc, contract, tenure, contractual basis or regular basis is to be taken by the employer. It is only in those cases where the decision has been taken arbitrarily or against the statutory provisions and in negation of the Constitution, the Courts can interfere. The decision to fill up the posts on contractual basis has been taken on 16.06.2008. It cannot be faulted with. 6. There is no merit in the contention of Mr. P.P. Chauhan, learned counsel for the petitioner also that old posts are to be filled up according to old rules. This principle is not applicable to appointments/recruitments made by way of direct recruitment. Though in the instant case, now the appointments can be made on contractual basis under Article 309 of the Constitution of India, the right of the State to fill up the posts on contractual basis was available to it. The amendment in the Recruitment and Promotion Rules notified on 26.10.2009 has covered the appointment made on contractual basis under Article 309 of the Constitution of India. 7. The decision had already been taken to fill up the posts of T.G.Ts. on contractual basis on 16.06.2008 before the rules were even promulgated. Petitioner has made a representation on 27.08.2010, which has been rejected by the Director of Elementary Education, Himachal Pradesh on 24.09.2010 by specifically stating therein that the decision to fill up the posts on contract basis was a policy decision. It is reiterated that the State has prerogative to make appointments on contractual basis, even under the old rules notified in 1973. The creation of a new cadre, sanctioning of posts etc. are administrative decisions and it entails financial burden also. 8. Mr. It is reiterated that the State has prerogative to make appointments on contractual basis, even under the old rules notified in 1973. The creation of a new cadre, sanctioning of posts etc. are administrative decisions and it entails financial burden also. 8. Mr. P.P. Chauhan, learned counsel for the petitioner has relied upon two judgments rendered by this Court in CWP No. 2059 of 2010, Hridye Prakash v. State of Himachal Pradesh & another, decided on 26th July, 2011 and CWP(T) No. 5298 of 2008, Dina Nath v. State of H.P., decided on 09.09.2009. These judgments will not apply in the present facts and circumstances of the case. The points involved in these two judgments were entirely different. 9. Merely that the names of the petitioners have been sponsored by the Ex-servicemen Cell will not give any indefeasible right to them and similarly situate persons for appointment on regular basis. The role of the Directorate of Sainik Welfare, Himachal Pradesh is to sponsor the names of the candidates when a requisition is received. In the instant case, the appointing authority is the State Government and the Director of Sainik Welfare, Himachal Pradesh, Hamirpur only sponsors the names of the candidates. The requisition has already been sent by the Director of Elementary Education, Himachal Pradesh to the Ex-servicemen Cell with the specific remarks that the appointment will be on contract basis. The letter Annexure P-3, dated 05.09.2008, relied upon by the petitioner, will thus not advance the case of petitioner. This has also been clarified by the Director of Elementary Education vide Annexure P-8, dated 24.09.2010. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in these writ petitions and the same are dismissed, so also the pending applications in all the petitions, if any. No costs.