AI Insights
The case involves multiple appeals against a common judgment by the Writ Court, which had allowed two writ petitions challenging the State's policy on the regularization of Volunteer Teachers. The appellants in the LPAs were aggrieved by the Writ Court's decision, which they argued encroached upon the State's policy-making powers and adversely affected their rights. The High Court examined whether the Writ Court was correct in its judgment, particularly in quashing a policy decision that set the effective date for granting Special JBT Certificates to Volunteer Teachers. The court found that the Writ Court had overstepped by altering a policy decision without proper basis in the pleadings and that the State's decision-making process was not arbitrary.
Appeal Details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 799570 (HC-HIMACHAL_PRADESH)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
15-07-2015
Assessment Year
misc
Judgement Text
"IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 99 of 2014 a/w LPAs No. 65, 66, 70, 71, 76 to 83, 100, 101, 109, 122, 181 and 182 of 2014 Reserved on: 07.07.2015 Decided on: 15.07.2015 1. LPA No. 99 of 2014 Sukh Dev Kumar & others …Appellants. Versus State of Himachal Pradesh & others …Respondents. ............................................................................................................ 2. LPA No. 65 of 2014 Ramesh Chand & others …Appellants. Versus Prem Lal & others …Respondents. ............................................................................................................ 3. LPA No. 66 of 2014 Ramesh Chand & others …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondents. (Registered) & others ............................................................................................................ 4. LPA No. 70 of 2014 Lalit Kumar Bhandari & others …Appellants. : 2 : Versus Prem Lal & others …Respondents. ............................................................................................................ 5. LPA No. 71 of 2014 Vijay Bhimta & others …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondents. (Registered) & others ............................................................................................................ 6. LPA No. 76 of 2014 Devinder Kumar & others …Appellants. Versus State of H.P. & others …Respondents. ............................................................................................................ 7. LPA No. 77 of 2014 Surinder Kumar & others …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondents. (Registered) & others ............................................................................................................ 8. LPA No. 78 of 2014 Rameshwari Sharma & others …Appellants. Versus : 3 : Prem Lal & others …Respondents. ............................................................................................................ 9. LPA No. 79 of 2014 Taam Lal & others …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondents. (Registered) & others ............................................................................................................ 10. LPA No. 80 of 2014 Dine Ram Anand & others …Appellants. Versus Prem Lal & others …Respondents. ............................................................................................................ 11. LPA No. 81 of 2014 Rama Devi & others …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondents. (Registered) & others ............................................................................................................ 12. LPA No. 82 of 2014 Kamni Sharma & others …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondents. (Registered) & others ............................................................................................................ : 4 : 13. LPA No. 83 of 2014 Khem Chand & others …Appellants. Versus Prem Lal & others …Respondents. ............................................................................................................ 14. LPA No. 100 of 2014 Bhagat Ram & others …Appellants. Versus State of H.P. & others …Respondents. ............................................................................................................ 15. LPA No. 101 of 2014 Sushil Kumar & others …Appellants. Versus State of Himachal Pradesh & others …Respondents. ............................................................................................................ 16. LPA No. 109 of 2014 Anju Bala Sharma & others …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondents. (Registered) & others ............................................................................................................ 17. LPA No. 122 of 2014 Urmila Kumari & others …Appellants. Versus : 5 : State of Himachal Pradesh & others …Respondents. ............................................................................................................ 18. LPA No. 181 of 2014 State of Himachal Pradesh & others …Appellants. Versus Prem Lal …Respondent. ............................................................................................................ 19. LPA No. 182 of 2014 The State of Himachal Pradesh & another …Appellants. Versus Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association …Respondent. (Registered) Coram The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? Yes. LPA No. 99 of 2014 For the appellants: Mr. Onkar Jairath, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram : 6 : Thakur, Deputy Advocate Generals, for respondentsState. Ms. Sunita Sharma, Advocate, for respondent No. 4. ............................................................................................................ LPAs No. 65 & 66 of 2014 For the appellants: Mr. Ashwani Pathak, Advocate. For the respondents: Ms. Sunita Sharma, Advocate, for respondent No. 1. Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals, for respondentsState. ............................................................................................................ LPAs No. 70 & 71 of 2014 For the appellants: Mr. Dilip Sharma, Senior Advocate, with Mr. Manish Sharma, Advocate. For the respondents: Ms. Sunita Sharma, Advocate, for respondent No. 1. Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals, for respondentsState. ............................................................................................................ LPAs No. 76 & 100 of 2014 For the appellants: Mr. Sanjeev Bhushan, Advocate. : 7 : For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals, for respondentsState. Ms. Sunita Sharma, Advocate, for respondent No. 3. ............................................................................................................ LPAs No. 77 & 109 of 2014 For the appellants: Mr. Bhuvnesh Sharma, Advocate. For the respondents: Ms. Sunita Sharma, Advocate, for respondent No. 1. Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals, for respondentsState. ............................................................................................................ LPAs No. 78 to 83 of 2014 For the appellants: Mr. V.D. Khidtta, Advocate. For the respondents: Ms. Sunita Sharma, Advocate, for respondent No. 1. Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals, for respondentsState. ............................................................................................................ : 8 : LPA No. 101 of 2014 For the appellants: Mr. K.B. Khajuria, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals, for respondentsState. Ms. Sunita Sharma, Advocate, for respondent No. 4. ............................................................................................................ LPA No. 122 of 2014 For the appellants: Mr. Jai Dev Thakur, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals, for respondentsState. Ms. Sunita Sharma, Advocate, for respondent No. 4. ............................................................................................................ LPAs No. 181 & 182 of 2014 For the appellants: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma & Mr. Vikram Thakur, Deputy Advocate Generals. For the respondents: Ms. Sunita Sharma, Advocate. : 9 : Mansoor Ahmad Mir, Chief Justice. All these appeals are outcome of a common judgment, dated 01.01.2013, made by the Writ Court/learned Single Judge in two writ petitions being CWP No. 2979 of 2012, titled as Sh. Prem Lal versus State of Himachal Pradesh and others, and CWP No. 4977 of 2012, titled as Himachal Pradesh Govt. Special Certificate awardees Junior Basic Teacher Association (Registered) versus State of Himachal Pradesh and another, whereby both the writ petitions came to be allowed (for short \"the impugned judgment\"). 2. The appellants in all the appeals except LPAs No. 181 and 182 of 2014 were not parties to the lis before the Writ Court/learned Single Judge and have sought leave to file appeals by the medium of miscellaneous applications, which were granted by this Court and delay was also condoned while granting the limitation petitions. Registry was directed to diarize the appeals. The respondents appeared and the appeals were listed for hearing. 3. During the pendency of the said appeals, the State : 10 : also filed two appeals alongwith limitation petitions. Limitation petitions were diarized and notices were issued to the respondents. Respondents appeared and contested the limitation petitions, which were granted by this Court and the Registry was directed to diarize the appeals. 4. The writ petitionersrespondents herein questioned the said order before the Apex Court by the medium of Special Leave to Appeal (Civil) No. 665666 of 2015, which came to be dismissed vide order, dated 08.01.2015 and the orders made by this Court granting limitation petitions were upheld. 5. The questions, which arise for determination in all these appeals, are: (i)Whether the impugned judgment made by the Writ Court/learned Single Judge, on the grounds taken in the respective writ petitions by the writ petitioners, is legally correct? (ii) Whether the impugned judgment is virtually encroaching upon the powers of the State Government to make policy decision, which : 11 : necessitated filing of two appeals by the State, i.e. LPAs No. 181 & 182 of 2014? (iii) Whether the Writ Court/learned Single Judge was within its powers to quash the effective date given in the policy, Annexure P4? (iv) Whether the impugned judgment has adversely affected the rights of the appellants in all the LPAs except LPAs No. 181 and 182 of 2014? 6. In the given circumstances, we deem it proper to club and determine all these appeals by this common judgment. 7. In both the writ petitions, the writ petitioners have sought similar set of reliefs on the grounds taken in the memo of the respective writ petitions. Thus, we deem it proper to reproduce the reliefs sought by the writ petitioner in CWP No. 2979 of 2012 herein: \"i. That the Annexure P4 dated 11.12.1998 is liable to be quash and set aside to the extent cut of date mentioned in the letter and direct the respondent to : 12 : apply the instruction uniformly and regularize the teacher appointed under the policy framed in the year 1986 after five years of service. ii. That the respondents may be directed to implement the direction given by the respondent No. 2 and to take immediate steps to grant benefit of special J.B.T. certificate after completion of 5 years services to the petitioner, who was appointed between 1986 to 1991 and to grant regularization from the date of the petitioner become eligible for grant of special JBT certificate after five years of service with all consequential benefits, increments, seniority and pay scales from time to time. iii. That to direct the respondents to collect the data as per Annexure P6 within time bound manner. iv. That entire record pertaining to this case may kindly be summoned for the kind perusal of this Hon'ble Court. v. Any other relief which this Hon'ble Court deems and just may also be passed in favour of the petitioner and against the respondents in the interest of justice.\" 8. While going through the writ petitions, one comes to an inescapable conclusion that the writ petitioners have sought quashment of the policy decision, dated 11.12.1998 (Annexure P 4 in CWP No. 2979 of 2012) which was made by the respondents, whereby the qualifying service for grant of Special Junior Basic : 13 : Training Certificates (for short \"Special JBT Certificates\") has been prescribed as five years with effect from 01.08.1998. It is apt to reproduce relevant portion of letter dated 11.12.1998 (Annexure P4) herein: \"No. EDNCB(2)1/98 Government of Himachal Pradesh Department of Primary Education From The Commr.cumSecretary (Edu.) to the Government of Himachal Pradesh. To The Director of Primary Education, Himachal Pradesh, Shimla171001. Dated Shimla171001, the 11th Dec. 1998. Subjet: Amendment of Education Code and regularisation of Volunteer Teachers. Sir, Jai Hind. I am directed to refer to your letter No. EDNH(II)PRYB(6)8/98VT Dated 29.7.1998 and to say that the matter relating to amendment to Education Code and regularisation of Volunteer Teachers was under consideration of the Government and it has now been decided that the provision relating to issue of special certificate shall be rewritten as under: : 14 : \"J.B.T. Special Certificate may be granted to teachers who have put in approved continuous service in Primary Department or a recognised school for not less than five years on the day of submission of application. The awardee should have at least passed the Middle Standard Examination and he/she should be a teacher of good moral character duly certified by the Head of Office.\" This provision shall be effective from 1.8.1998. You are, therefore, requested to consider awarding Special Certificates to the eligible Volunteer Teachers numbering 4159 who will be regularised, with effect from 1.8.1998. After regularisation they will be subjected to all the terms and conditions which are applicable to newly recruited J.B.T. teachers, as on fresh appointments, like, undergoing medical examination, character verification, probation and application of reservation roster etc. etc. Further, their first appointment shall not be less than 25 kilometers from their permanent place of residence. They shall have to undergo refresher course/condensed course as per the instructions of the Government issued from time to time. (Emphasis added)\" 9. The writ petitioners have questioned Annexure P4 only to the extent of fixing the effective date as 01.08.1998 and have also sought that the five years' time frame prescribed in the said letter be treated as criterion for all those Volunteer : 15 : Teachers who were appointed between 1986 to 1991. In fact, the writ petitioners have prayed for change of the time frame of ten years prescribed in the policy decision made in the year 1995 contained in letter, dated 27.11.1995, read with letter, dated 15.12.1995 (Annexure P2). The writ petitioners have also sought writ of mandamus commanding the respondents to take all necessary steps to grant benefit of Special JBT Certificate after completion of five years' service to the writ petitioners, who have been appointed between 1986 to 1991 as Volunteer Teachers and to grant regularization from the date they became eligible for grant of Special JBT Certificate after completion of five years' service. 10. The writ respondentsState resisted the writ petitions on the grounds taken in the respective replies and have specifically stated that the writ petitioners were appointed as Volunteer Teachers under the Himachal Pradesh Volunteer Teacher Scheme, 1985 (for short \"1985 Scheme\") and they have accepted the terms and conditions. They have also pleaded that the Government of Himachal Pradesh had taken a policy : 16 : decision vide letter, dated 27.11.1995 that the Volunteer Teachers who had completed ten years of continuous service in Government Primary Schools be given special JBT Certificates and the Volunteer Teachers who had worked in the Literacy campaign for two years be given one year's relaxation in grant of Special JBT Certificates. Meaning thereby, instead of ten years, they had to complete nine years of continuous service. The writ petitioners were governed by the said Scheme and also got relief of regularization in terms of the said policy and have accepted the terms and conditions contained in the said policy. 11. We deem it proper to reproduce relevant portion of letter dated 15.12.1995 (Annexure P2 in CWP No. 2979 of 2012), wherein reference of letter dated 27.11.1995 has been given, herein: \"................... The Govt. of Himachal Pradesh vide their letter No. EDNCB(2)5/95 dated 27.11.1995 has decided that the Volunteer Teachers who have completed 10 years continuous service in Govt. Primary Schools be given special Junior Basic Training certificates. The Volunteer teachers who have worked in the literacy campaign for two years be given one years relaxation in grant of special Junior Basic Training : 17 : certificates i.e. in their case ten years period would be reduced to 9 (Nine) years. It has also been decided that refresher inservice course of about three months duration would be organised for the Volunteer teachers holding special J.B.T. certificates.................\" 12. The writ respondents, in their reply, have specifically averred that the writ petitioner in CWP No. 2979 of 2012 joined his duties as Volunteer Teacher on 05.01.1987 and was regularized as JBT on 06.01.1996, in terms of the guidelines issued vide letter dated 27.11.1995 (supra) and has been given seniority from the date of his regularization. 13. Thereafter, another conscious decision was taken by the State authorities vide letter, dated 11.12.1998 (Annexure P4 to CWP No. 2979 of 2012), that the Volunteer Teachers, who have completed five years of continuous service in Government Primary Schools on the date of commencement of the said amendment, i.e. 01.08.1998, are to be regularized. This decision is not applicable to the writ petitioners, whose services have been regularized as per the earlier scheme and that decision was made at that point of time. : 18 : 14. It is apt to reproduce paras 4 and 5 of the reply filed by the writ respondents in CWP No. 4977 of 2012 herein: \"4. That it is submitted that after amendment in education code, policy amended and volunteer teachers so appointed after 1992 onwards have been regularized after putting 5 years' service as per direction contained in the letter dated 11121998 and 21121998 annexed by the petitioner as annexure P3 and P4 with the present civil writ petition. 5. That the claim of petitioner that annexure P3 dated 11121998 may be quashed and set aside as the same brings disparity amongst two set off incumbents in as much as under policy dated 11121998, the criteria was reduced to 5 years which in anneuxre P2 was 10 years. Therefore, by way of this writ petition petitioner sought parity to the incumbents engaged between 1984 to 1991 with incumbents so engaged under second policy and also regularised upon completion of 5 years volunteer service. To this relief it is respectfully submitted that as is evident from kind perusal of Annexure P2, 10 years continuous service to the volunteer teachers before regularisation as JBT was fixed by the Government as a mandatory condition taking into consideration the large number of incumbents working in the said category. However, if the Government subsequently during the year 1998 decided to reduce it to 5 years, the same does not give any cause of action to the petitioner at this belated stage after ore than 12 to 15 years that too without challenging the wires of policy. Both the policy decisions having been taken by the Government at : 19 : the relevant time after taking into account various factors prevailing at that time which includes the number of incumbents likely to be benefited and subsequently when it was reduced to 5 years to eliminate the category of volunteer teachers so as to make all the incumbents regular were eligible. Hence, taking lead from Mool Raj verdict/policy framed by Hon'ble Apex Court during the year 1994 when first timer daily wager who were having 10 or more years of continuous service were directed to be regularised the daily wagers were even having 20 or more years daily wage service. Subsequently the Government reduced it to 8 years and now 6 years, such incumbents so engaged and regularised during the year 1994 cannot now claim that our juniors have been prescribed in lesser period of daily wage service. Hence, they are not entitled for parity. Taking these fats and circumstances into consideration the claim of the petitioner for providing of 5 years voluntary service instead of 10 years voluntary service before regulrisation as JBT is not legally sustainable.\" 15. It is also apt to reproduce paras 2 & 3 of the preliminary submissions and para 4 of the reply on merit filed by the respondentsState in CWP No. 2979 of 2012 herein: \"2. That the Govt. of H.P. has taken a policy decision vide letter of dated 27 November, 1995 that the Volunteer Teachers who have completed 10 years of continuous service in Government Primary Schools be given special Junior Basic Training Certificates. The Volunteer Teachers who have worked in the Literacy : 20 : campaign for two years be given one year relaxation in grant of special Junior Basic Training Certificates i.e. in their case ten years period would be reduced to 9 years. 3. The petitioner was appointed as Volunteer Teacher on 31121986 and joined his duties on 511987 and regularized as JBT on 06011996 after awarding special JBT certificate after completion of 9 years of regular service and one year benefit was given due to his work in literacy campaign for more than 2 years and has been given seniority from the date of his regularization. The seniority to each Volunteer Teacher appointed under this scheme have been given from the date of regularization after completion of 10 years of service. ............................. 4. That in reply to this para it is submitted that JBT Special Certificate was granted to those teachers who have put in continuous service not less than 5 years on the day of submission of application as per annexure annexed as P4 with the civil writ petition. This Govt. decision does not apply to the petitioner case. The Govt. decision was was taken to those Volunteer Teachers who were appointed in the year 1992.\" 16. The question arises whether the Writ Court/learned Single Judge has rightly quashed letter dated 30.03.2011, which is a document filed by the writ respondentsState with their reply to CWP No. 2979 of 2012 as Annexure R1, which was not : 21 : the subject matter of the writ petition? 17. It is apt to reproduce para 18 of the impugned judgment herein: \"18. Accordingly, the writ petitions are allowed. Annexure R1, dated 30.03.2011, in CWP No. 2979 of 2012 is quashed and set aside. The cut off date, i.e. 01.08.1998 is struck down after applying the principle of severability. The petitioners will be deemed to have been granted Special JBT certificates immediately after completion of five years and would also be deemed to have been regularized after five years of service with all consequential benefits to bring them at par with those teachers, who were appointed under 1991 Volunteer Teachers Scheme. The pending application(s), if any, also stands disposed of. No costs.\" 18. In terms of letter dated, 30.03.2011 (Annexure R1 annexed with CWP No. 2979 of 2012), the request for granting seniority to the Volunteer Teachers appointed in the year 1986 from the date of their initial appointment was rejected on the ground that the Volunteer Teachers appointed in the year 1986 have been regularized against vacant posts after grant of Special JBT Certificates on completion of ten years' continuous service in terms of the guidelines dated 27.11.1995 and the Volunteer Teachers appointed right from the year 1992 have been : 22 : regularized after granting Special JBT Certificates with effect from 01.08.1998 on completion of minimum five years service and that only after grant of Special JBT Certificates, the Volunteer Teachers are considered to be eligible for seniority and financial benefits. It has further been mentioned in the said letter that the Volunteer Teachers appointed right from the year 1992 have also been granted seniority and financial benefits with effect from the date of their regularization after grant of Special JBT Certificates and not from the date of their initial appointment. 19. The writ petitioners have not sought quashment of Annexure R1 and no pleadings have been made to that effect in the writ petitions. We wonder how the Writ Court/learned Single Judge has quashed Annexure R1, which was not sought for. 20. It is beaten law of land that the Court cannot travel beyond the pleadings and the relief sought. 21. Our this view is fortified by the judgment of the Apex Court in the case titled as State of J. & K & Anr. versus Ajay : 23 : Dogra, reported in 2011 AIR SCW 2605. It is apt to reproduce paras 14, 15, 16, 22 and 23 of the judgment herein: \"14. A perusal of the writ petitions would prove and establish that the only prayer made in those writ petitions was to grant relaxation to the criteria and standard of physical conditions prescribed for and required to be fulfilled. In aforesaid writ petitions, neither the validity of Rule 176 with regard to physical conditions were challenged nor such conditions prescribed in the advertisement were challenged on the ground of its validity contending inter alia that there is no nexus of the said conditions with the object sought to be achieved. We find that the physical conditions prescribed in the advertisement are in consonance with Rule 176 of the Police Rules which are statutory Rules. No where in the pleadings, it is stated that such conditions prescribed are illegal or invalid. Constitutional validity of the aforesaid Rule was never challenged in any of the writ petitions. 15. The High Court, however, without there being any pleading in that regard went beyond the pleadings and held that such physical conditions laid down are bad and arbitrary as what has been prescribed have no nexus with the object sought to be achieved. 16. The aforesaid decision rendered by the High Court is contrary to and inconsistent with the law laid down by this Court in the case of V.K. Majotra v. Union of India & Ors., reported in (2003) 8 SCC 40 : (AIR 2003 SC 3909 : 2003 AIR SCW 4504). In the said decision also what was urged : 24 : before this Court was neither raised in the pleadings nor it was urged before the High Court by any of the parties to the writ petition. In the said case, the issue was as to whether a person not having judicial experience could be appointed as Vice Chairman of the Central Administrative Tribunal. This Court found that the aforesaid issue was not raised in the writ petition and similarly, vires of the section was also not challenged. This Court in the aforesaid context, held as follows: \"8. .......It is also correct that vires of Sections 6(2)(b), (bb) and (c) of the Act were not challenged in the writ petition. The effect of the direction issued by the High Court that henceforth the appointment to the post of ViceChairman be made only from amongst the sitting or retired High Court judge or an advocate qualified to be appointed as a judge of the High Court would be that Sections 6(2)(b), (bb) and (c) of the Act providing for recruitment to the post of Vice Chairman from amongst the administrative services have been put to naught/obliterated from the statutebook without striking them down as no appointment from amongst the categories mentioned in clauses (b), (bb) and (c) could now be made. So long as Sections 6(2)(b), (bb) and (c) remain on the statute book such a direction could not be issued by the High Court..........\" In paragraph 9 of the said decision, this Court has discussed the issues in the following terms: : 25 : \"9. We are also in agreement with the submissions made by the counsel for the appellants that the High Court exceeded its jurisdiction in issuing further directions to the Secretary, Law Department, Union of India, the Secretary, Personnel and Appointment Department, Union of India, the Cabinet Secretary of the Union of India and to the Chief Secretary of the U.P. Government as also to the Chairman of CAT and other appropriate authorities that henceforth the appointment to the post of presiding officer of various other Tribunals such as CEGAT, Board of Revenue, Income Tax Appellate Tribunal etc. should be from amongst the judicial members alone. Such a finding could not be recorded without appropriate pleadings and notifying the concerned and affected parties.\" 17 to 21. ............... 22. In our considered opinion, the ratio of the aforesaid decisions of this Court are squarely applicable to the facts of the present case. There was no challenge to the constitutional validity of Rule 176 of the Police Rules so far as it relates to prescribing physical conditions regarding the height and the chest. The stipulations in the advertisement regarding standard of physical condition was also not challenged in the Writ Petition. The High Court was not justified in going into the validity of the aforesaid criterion in absence of any such challenge. The High Court also has not specifically declared the Rule prescribing minimum height : 26 : standard and chest standard ultra vires and, therefore, so long as that Rule exists in the statute book, no such direction as issued by the High Court could be issued. Consequently, the directions issued by the High Court in the present case are required to be set aside. 23. We, therefore, hold that the High Court was not justified to decide the validity of the aforesaid Rule and the advertisement without there being any challenge to the same. We also hold that it was not appropriate for the High Court to set aside the said conditions which are mandatory in nature.\" 22. The Apex Court in another case titled as Bachhaj Nahar versus Nilima Mandal & Ors., reported in 2009 AIR SCW 287, held that the Court cannot make out a case not pleaded and grant relief not sought for. It is apt to reproduce para 12 of the judgment herein: \"12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case : 27 : subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu.\" 23. The Apex Court in the case titled as Union of India versus Ibrahim Uddin and another, reported in (2012) 8 Supreme Court Cases 148, held that the Court cannot travel beyond the pleadings. It is apt to reproduce paras 77 ad 85.6 of the judgment herein: \"77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C. P. Joshi, (2011) 11 SCC 786 : (2011) 4 SCC (Civ) 656 : AIR 2011 SC 1127, after : 28 : placing reliance on a very large number of its earlier judgments including Trojan & Co. v. Nagappa Chettiar, AIR 1953 SC 235; Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256 : AIR 2002 SC 665; Ishwar Dutt v. Collector (LA), (2005) 7 SCC 190 : AIR 2005 SC 3165; and State of Maharashtra v. M/s. Hindustan Construction Co. Ltd., (2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299, held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect. No party can he permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon. .................... 85.6. The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it. \" : 29 : 24. Learned counsel for the writ petitionersrespondents herein frankly conceded that the writ petitioners have not prayed for the said relief in the writ petitions and was not in a position to justify how the Writ Court/learned Single Judge has granted the same. 25. Now, coming to the second limb of the impugned judgment, whereby cut off date, i.e. effective date of the policy, has been struck down. The impugned judgment, on the face of it, is not legally correct for the following reasons: 26. The Government has made two policy decisions. In the policy decision made in the year 1995 in terms of letter dated 27.11.1995, ten years' continuous service as Volunteer Teachers was prescribed for granting Special JBT Certificates and the services of the Volunteer Teachers, who had obtained the said Special JBT Certificates, were to be regularized. The same was applicable and governing the Volunteer Teachers appointed from 1985 till 1991. It was accepted by the parties, was not questioned and the services of so many Volunteer Teachers, including the writ petitioners, were regularized. : 30 : 27. Thereafter, the Government made another conscious decision, vide letter, dated 11.12.1998, in terms of which the services of the Volunteer Teachers, who were appointed right from the year 1992 and had completed five years' continuous service, were to be regularized after granting Special JBT Certificates with effect from 01.08.1998. The said decision appears to have been taken while keeping in view the circumstances prevailing at the relevant point of time. 28. The writ petitioners have not pleaded that the said decision is mala fide or is based on some bias or has no rationale. 29. In fact, the prayer of the writ petitioners is to re write the policy of 1995 and fix the time frame of five years of continuous service for grant of Special JBT Certificates, as provided in terms of policy decision taken in the year 1998, instead of the time frame of ten years, as provided in the policy decision taken in the year 1995, which is not permissible. 30. It is a beaten law of land that Government decision and policy cannot be subject matter of a writ petition, unless its arbitrariness is shown in the decision making process. : 31 : 31. The Apex Court in a series of judgments held as to how policy decisions of the Government can be questioned and whether the Writ Courts have powers to quash the said policy decisions, that too, on what counts. 32. The Apex Court in a case titled as Sidheshwar Sahakari Sakhar Karkhana Ltd. Vs. Union of India and others, reported in 2005 AIR SCW 1399, has laid down the guidelines and held that Courts should not interfere in policy decision of the Government, unless there is arbitrariness on the face of it. 33. The Apex Court in another case titled as Manohar Lal Sharma Vs. Union of India and another, reported in (2013) 6 SCC 616, has laid down the same principle. 34. The Apex Court in the case titled as Mrs. Asha Sharma versus Chandigarh Administration and others, reported in 2011 AIR SCW 5636 has held that policy decision cannot be quashed on the ground that another decision would have been more fair, wise, scientific or logical and in the interest of society. It is apt to reproduce para 10 of the judgment herein: : 32 : “10. The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logic. The principle of reasonableness and nonarbitrariness in governmental action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag v. State of West Bengal [(2000) 8 SCC 262 : (AIR 2000 SC 3313)].” 35. It appears that the writ respondents have examined all aspects and made the decision. Thus, it cannot be said that the decision making process is bad. The Court can not sit in appeal and examine correctness of policy decision. 36. The Apex Court in the case titled as Bhubaneswar Development Authority and another versus Adikanda Biswal and others, reported in (2012) 11 SCC 731, laid down the same principle. It is apt to reproduce para 19 of the judgment herein: “19. We are of the view that the High Court was not justified in sitting in appeal over the decision taken by the statutory : 33 : authority under Article 226 of the Constitution of India. It is trite law that the power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers.” 37. The Apex Court in a case titled as Centre for Public Interest Litigation and Ors. versus Union of India and Ors. with Dr. Subramanian Swamy versus Union of India and Ors., reported in 2012 AIR SCW 3569, held that the Court cannot substitute its opinion for the one formed by the experts in the particular field. It is apt to reproduce relevant portion of para 79 of the judgment herein: \"79. In majority of judgments relied upon by learned Attorney General and learned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not : 34 : ordinarily interfere with the policy decisions of the Government in financial matters. There cannot be any quarrel with the proposition that the Court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. ............\" 38. The Apex Court in a case titled as M/s. Bajaj Hindustan Ltd. versus Sir Shadi Lal Enterprises Ltd. & Ors., reported in 2011 AIR SCW 1102, held that the Court cannot sit in judgment over wisdom of policy of legislature or executive. It is apt to reproduce paras 22, 42 and 44 of the judgment herein: \"22. It is settled law that in the areas of economics and commerce, there is far greater latitude available to the executive than in other matters. The Court cannot sit in judgment over the wisdom of the policy of the legislature or the executive. 23 to 41. .................. 42. We should not be understood to have meant that the judiciary should never interfere with administrative decisions. However, such interference should be only within narrow limits e.g. when there is clear violation of the statute or a : 35 : constitutional provision, or there is arbitrariness in the Wednesbury sense. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest. The Court should not ordinarily interfere with policy decisions, unless clearly illegal. 43. ............... 44. The power to lay policy by executive decisions or by legislation includes power to withdraw the same unless it is by mala fide exercise of power, or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is an executive or legislative policy. The Government would take diverse factors for formulating the policy in the overall larger interest of the economy of the country. When the Government is satisfied that change in the policy was necessary in the public interest it would be entitled to revise the policy and lay down a new policy.\" 39. In another case titled as State of U.P. & Ors. versus Chaudhari Ran Beer Singh & Anr., reported in 2008 AIR SCW 2296, the Apex Court held that the Court should not : 36 : substitute its own judgment for the judgment of the executive. It is apt to reproduce para 12 of the judgment herein: \"12. Cabinet's decision was taken nearly eight years back and appears to be operative. That being so there is no scope for directing reconsideration as was done in Ram Milan's case, though learned counsel for the respondents prayed that such a direction should be given. As rightly contended by learned counsel for the State, in matters of policy decisions, the scope of interference is extremely limited. The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown. Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the government the Court cannot interfere even if a second view is possible from that of the Government.\" 40. This Court in a case titled as Nand Lal & another versus State of H.P. & others, reported in 2014 (2) Him L.R. (DB) 982, after discussing the judgments of the Apex Court held that it is for the writ petitioners to show that the decision making process was bad or there was some arbitrariness. : 37 : 41. The writ petitioners have not pleaded that the decision making process is bad or there is arbitrariness on the face of it and have not been able to carve out a case for its quashment. 42. This Court in CWP No. 4625 of 2012C, titled as Gurbachan versus State of H.P. & others, decided on 15.07.2014 and a batch of two writ petitions, CWP No. 9480 of 2014, titled as Vijay Kumar Gupta versus State of Himachal Pradesh & others, being the lead case, decided on 09.01.2015, has laid down the same principle. 43. The writ petitioners have not questioned the policy decision, dated 27.11.1995 to the effect that the time frame, i.e. prescribing ten years' service, was bad. What they have sought is that the time frame of five years prescribed in Annexure P4 be also prescribed in Annexure P2 read with letter dated 27.11.1995, is without any lawful cause. How the time frame fixed in a later policy decision can be made applicable to a earlier policy decision. 44. Applying the principle to the instant case, no case for : 38 : interference/quashment is made out by the writ petitioners. They are governed by the conscious decision made in the year 1995 and the Volunteer Teachers appointed right from the year 1992 are governed by the conscious decision made in the year 1998. Only on this count, the impugned judgment needs to be set aside. 45. Further, the writ petitioners had not impleaded the affected parties as partyrespondents in the memo of writ petitions. Thus, the writ petitions, on the face of it, were not maintainable, were to be dismissed for nonjoinder and mis joinder of necessary parties. Unfortunately, this issue has not been discussed by the Writ Court/learned Single Judge in the impugned judgment. 46. The appellants have stated that the seniority list stands published and the impugned judgment has effect of dislodging the seniority, which has attained finality in the year 2002. The appellants have given the details in their respective appeals as to how the impugned judgment has effect of dislodging the settled seniority, which has attained finality. The : 39 : appellants have also pleaded as to how they are adversely affected by the impugned judgment. 47. The writ petitioners have filed writ petitions in the year 2012 and after the lapse of fourteen years, have questioned the policy decision (Annexure P4), is highly belated and the writ petitioners are caught by law of laches, estoppel, waiver and acquiescence. They have not even explained delay and laches. 48. It is beaten law of land that the seniority fixed cannot be dislodged by a person, who is a fencer, that too, after considerable delay. 49. The Apex Court in a case titled as B.S. Bajwa and another versus State of Punjab and others, reported in (1998) 2 Supreme Court Cases 523, laid down the same principle. It is apt to reproduce para 7 of the judgment herein: \"7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B. S. Bajwa and B. D. Kapoor only in 1984 : 40 : which was long after they had entered the department in 197172. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been reopened after the lapse of such a long period. At every stage the others were promoted before B. S. Bajwa and B. D. Kapoor and this position was known to B. S. Bajwa and B. D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.\" 50. It would also be profitable to reproduce para 25 of the judgment rendered by the Apex Court in a case titled as H.S. Vankani & Ors. versus State of Gujarat & Ors., reported in 2010 AIR SCW 2116, herein: \"25. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority cummerit or meritcumseniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. : 41 : It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India and Another. v. S.K. Goel and Others (2007) 14 SCC 641 : (AIR 2007 SC 1199 : 2007 AIR SCW 1235), T.R. Kapoor v. State of Haryana, (1989) 4 SCC 71 : (AIR 1989 SC 2082), Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604 : (AIR : 42 : 2003 SC 2000 : 2003 AIR SCW 1508). In view of the settled law the decisions cited by the appellants in G.P. Doval's case (AIR 1984 SC 1527) (supra), Prabhakar and Others case, (AIR 1976 SC 1093), G. Deendayalan, R.S. Ajara are not applicable to the facts of the case.\" 51. The Apex Court in the case titled as Vijay Kumar Kaul and Ors. versus Union of India and Ors., reported in 2012 AIR SCW 3277, held that belated claim for seniority so made cannot be allowed, more so, when the employees/affected parties/appellants were not impleaded as parties. It is apt to reproduce paras 21 and 22 of the judgment herein: \"21. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy. 22. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour : 43 : of one melts into total insignificance and paves the path of extinction with the passage of time.\" 52. The Apex Court in the case titled as State of Uttar Pradesh and others versus Arvind Kumar Srivastava and others, reported in 2014 AIR SCW 6519, held that relief cannot be extended to the persons who have approached the Court after long delay, that too, who are fencesitters. It is apt to reproduce para 24 of the judgment herein: \"24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only : 44 : there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.\" 53. The Apex Court in the case titled as A.P. Public Service Commission versus K. Sudharshan Reddy & Ors., with A.P. Public Service Commission versus Y.T. Naidu & Ors., reported in 2006 AIR SCW 3430, held that dislodging seniority after long gap creates chaotic situation, is against the principle of service jurisprudence. It is apt to reproduce paras 18 and 20 of the judgment herein: \"18. Having carefully considered the submissions made on behalf of the respective parties, we are unable to agree with the submissions advanced by Mr. Rao since in our view, after having held the impugned Government Order to be violative of Arts. 14 and 16 of the Constitution of India, it was the intention of this Court to maintain the status quo as it existed with regard to the appointments already made where certain candidates had already been given the benefit of weightage. We are inclined to agree with Mr. Ranjit Kumar that the Court intended to protect not only the appointment of such candidates but also all their : 45 : service conditions, which included their right to seniority as had accrued to them at the time of their initial appointment. In our view, the said intention of this Court was quite clear from the language used. If this Court had intended that the weightage given to the concerned candidates was not to count towards their position in the merit list, it would have said so explicitly. On the other hand, while mentioning the fact of their appointment on the strength of such weightage this Court went on to say that such candidates would not be adversely affected by the judgment. In other words, the decision rendered in the judgment would not adversely affect their existing service conditions. 19. .................. 20. Apart from the above, the other submission of Mr. Ranjit Kumar regarding the difficulty of unsettling the settled position after all these years cannot also be lightly brushed aside.\" 54. Applying the test to the instant case, the writ petitions were to be dismissed also on the count that the writ petitioners have come to the Court after a long delay, which has not been explained by them and which has effect of dislodging the status and position of the appellants herein, who were not parties before the Writ Court/learned Single Judge. : 46 : 55. Some of the appellants came to be appointed by direct recruitment as teachers after passing the competitive examination. The writ petitioners have no contest with them and cannot claim for the benefit which affects the appellants adversely. 56. The decision contained in letter, dated 27.11.1995, read with letter, dated 15.12.1995 (Annexure P2 in CWP No. 2979 of 2012) was made applicable to those Volunteer Teachers who were appointed under the 1985 Scheme up to the year 1991 and the writ petitioner in CWP No. 2979 of 2012 stands regularized as JBT Teacher on 06.01.1996, as pleaded in para 3 of the preliminary submissions of the reply filed by the writ respondentsState in CWP No. 2979 of 2012. The decision/ scheme made in terms of letter dated 11.12.1998 (Annexure P4 in CWP No. 2979 of 2012) was made applicable to those Volunteer Teachers, who were appointed right from the year 1992. The writ petitioners also obtained relief in terms of the earlier policy and cannot claim relief in terms of the second policy. Thus, it can be safely held that they have been treated as : 47 : two different classes. 57. The replies and the appeals also contain the details how the impugned judgment is encroaching upon the powers of the State, which has powers to make conscious policy decisions. The Courts have no power to interfere with the policy decisions made by the State Government, as discussed hereinabove. 58. Viewed thus, all the four questions framed hereinabove are replied accordingly. 59. Having said so, all the appeals are allowed, the impugned judgment is set aside and the writ petitions are dismissed. 60. Pending applications, if any, are also disposed of accordingly. (Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) Judge July 15, 2015 ( rajni ) "
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