Himachal Pradesh High Court
Decided On: 30Th April vs Chairman Bhakra Beas Management Board on 30 April, 2025
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2025:HHC:11679
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.5796 of 2023
Decided on: 30th April, 2025
————————————————————————————-
Nirmal Singh and others …..Petitioners
Versus
Chairman Bhakra Beas Management Board
and others …..Respondents
————————————————————————————-
Coram
Ms. Justice Jyotsna Rewal Dua
Whether approved for reporting? 1 Yes.
For the Petitioners: Mr. Desh Raj Thakur, Advocate.
For the Respondents: Mr. N.K. Sood, Senior Advocate with
Mr. Aman Sood, Advocate.
————————————————————————————
Jyotsna Rewal Dua, Judge
Petitioners are working on contract basis with
the respondent-Bhakra Beas Management Board (in short
‘respondent-Board’). They seek direction to the respondents
to regularize their services on completion of two years of
probation period and to treat their appointments as regular
appointments for all intents and purposes. Release of
consequential service benefits, i.e. seniority, regular pay
scale, increments etc. as admissible to regular employees
has also been prayed.
1
Whether reporters of print and electronic media may be allowed to see the order? Yes.
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2025:HHC:11679
2. Facts:-
2(i). Respondent-Board was facing acute shortage of
manpower against vacant critical permanent sanctioned
posts of long term employment cadres. On 30.10.2014, the
Board took a decision to fill up certain categories of Class-
III and Class-IV posts in its Irrigation and Power Wing by
direct recruitment on contractual basis. The direct
recruitment was to be through regular selection process by
the Centralized Staff Selection Committee as per the
Bhakra Beas Management Board Class III and Class IV
Employees’ (Recruitment and Conditions of Service)
Regulations, 1994 (hereinafter to be referred as ‘1994
Regulations’). Relevant portion from the aforesaid office
letter dated 30.10.2014 is extracted hereinafter:-
“Subject: Filling up of vacant Critical Technical &
Tradesman Class-III & IV post(s) in Irrigation & Power
Wing sequel to the decision taken in the 219th meeting
of the Board against-Agenda Item “Acute Shortage of
Manpower in BBMB”- direct recruitment on Contractual
Basis.
……………………………………….
The approval of the competent authority is
hereby accorded in respect of the following post(s)
(attached at Annexure) for direct recruitment on
Contractual Basis as per the decision taken in the 219th
meeting of the Board. The direct recruitment shall
be through the regular selection process by the
Centralized Staff Selection Committee as per the
mandate given in the BBMB Class-III & IV
Employees (Recruitment and Conditions of Service)
Regulation 1994………”
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2025:HHC:11679
2(ii). Consequent upon the aforesaid decision,
Advertisement No.2 of 2014 was issued by the Centralized
Staff Selection Committee of the respondent-Board, inviting
online applications for recruitment to certain categories of
Class-III posts on contract basis for one year and
extendable as per requirement. The last date for receipt of
online applications was 26.02.2015. Petitioners participated
in the selection process under the aforesaid advertisement
for the categories of Junior Engineer (Civil), Junior
Engineer (Irrigation), Staff Nurse, Hoist Operator and
Driver. The petitioners were selected and appointed against
their respective applied for categories (Class-III) on contract
basis as under:-
Petitioner Names of the Petitioners Date of Name of Post
No. appointment
letter
1. Nirmal Singh 03.09.2015 Hoist Operator
2. Baljit Singh 03.09.2015 Hoist Operator
3. Ishan Sodhi 05.09.2017 Junior Engineer (Civil)
4. Ajay Kumar 03.09.2015 Hoist Operator
5. Shanul Rana 06.02.2017 Junior Engineer
(Irrigation)
6. Ajay Kumar 16.01.2017 Junior Engineer
(Irrigation)
7. Devender Kumar 11.05.2017 Junior Engineer
(Irrigation)
8. Robin Kumar 16.01.2017 Junior Engineer
(Irrigation)
9. Anshul Chauhan 03.01.2017 Junior Engineer (Civil)
10. Amandeep Singh 03.09.2015 Hoist Operator
11. Mitter Dev 29.04.2016 Driver
12. Prem Chand 29.04.2016 Driver
13. Shalini Kumari 27.12.2017 Junior Engineer (Civil)
14. Vandana Kumari 17.03.2016 Staff Nurse
4
2025:HHC:11679Sharma
15. Karanveer Singh 16.01.2017 Junior Engineer
Mangat (Irrigation)
16. Rahul Saini 16.01.2017 Junior Engineer
(Irrigation)
17. Lakshya Gupta 04.06.2017 Junior Engineer
(Irrigation)
18. Kuldeep Kumar 19.05.2017 Junior Engineer (Civil)
Appointment orders were issued to the
petitioners expressing that their appointment was on
contract basis. The terms & conditions governing the
appointment were also mentioned therein including
Condition No.1(h), that “You will be governed by the service
Rules and Regulations of the Bhakra Beas Management
Board as in force from time to time”. Petitioners joined the
services of the respondent-Board as Class-III employees.
2(iii). It appears that petitioners represented to the
respondent-Board for conferring them regular status. Their
representations were examined and Agenda item
Nos.231.09, 232.10, 233.18, 234.12 & 235.15 were
prepared recommending regularization of services of the
petitioners/employees working on contractual basis in the
Board for 231st, 232nd, 233rd, 234th and 235th meeting of the
respondent-Board, respectively. Services of the petitioners
were not regularized, though some enhancement was given
in their salaries under Agenda Item No.235.15 proposed for
235th meeting of the Board.
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2(iv). Respondent-Board issued advertisement No.1 of
2018, inviting applications for filling up Group-B & C posts.
Services of those recruited under this advertisement were
regularized w.e.f. 14.03.2022, i.e. on completion of
probation period. Petitioners, who were recruited in
previous years following the same selection process, are still
continuing to serve on contractual basis.
Feeling aggrieved, petitioners have preferred this
writ petition seeking following substantive reliefs:-
“i) That the respondents be directed to regularize the
services of the petitioners soon after the completion of
probation period and treat the appointments of the
petitioners, as appointment on regular basis for all
intents and purposes.
ii) That the respondents be directed to release all
consequential benefits to the petitioners, in view of their
regularizations with effect from their initial
appointments respectively i.e. increments, seniority,
regular pay scale and all other consequential benefits
which are available to regular employees.”
3. Submissions:-
3(i). Learned counsel for the petitioners submitted
that recruitments and conditions of service of Class-III and
Class-IV employees in the respondent-Board are governed
by the 1994 Regulations. These regulations do not provide
for appointment on contract basis. As per the Regulations,
the posts, which form part of Schedule to the Regulations,
can be filled up only by direct recruitment on regular basis,
6
2025:HHC:11679though the employees recruited as such are to satisfactorily
complete the probation period. On successful completion of
the probation period, their services are to be confirmed.
Advertisement No.2 of 2014 (Annexure P-3) issued by the
respondent-Board for appointment on contract basis was
de hors the Regulations. Petitioners’ recruitment against
Class-III posts under this advertisement was the result of
selection process carried out by the respondents as
envisaged for regular direct recruitment under the 1994
Regulations. The regulations are to be applied as they exist
without any discrimination. The petitioners have a right to
be appointed on regular basis in view of their selection in
terms of the 1994 Regulations. The regulations are Magna
Carta, governing the appointments against Class-III and IV
posts in the respondent-Board. Without there being any
amendment to the regulations, which provide only for
regular appointment to Class-III and Class-IV posts,
petitioners’ appointments for all intents and purposes, are
to be considered as regular appointments. Neither
execution of service contract was imposed as a condition in
the advertisement nor the petitioners executed such
contract. The petitioners had been appointed against
regular posts, therefore, their services were required to be
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2025:HHC:11679confirmed on completion of the probation period and
benefits attached to regular appointments were required to
be released in their favour from the date of successful
completion of probation period. Respondents cannot exploit
the petitioners by continuing to keep them on contract
basis for years together.
Learned counsel also highlighted that the
respondent-Board had undertaken a selection process for
recruitment to some more categories of Class-III and
Class-IV employees vide a subsequent advertisement, being
Advertisement No.1 of 2018. Services of the incumbents
selected thereunder were regularized on completion of three
years of service/probation period. The respondents cannot
discriminate the petitioners, who were selected under
advertisement No.2 of 2014 with those selected under
advertisement No.1 of 2018. Same regulations govern both
sets of employees, who were appointed by following same
selection procedure.
3(ii). Learned Senior Counsel for the respondent-
Board did not dispute the fact that appointments to Class-
III & Class-IV posts in the respondent-Board are governed
by the 1994 Regulations, which do not provide for
contractual appointments and in terms of which, only
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2025:HHC:11679regular appointments are envisaged. Learned Senior
Counsel, however, submitted that in view of Regulation
No.4(4) of the 1994 Regulations, the vacancies in the
respondent-Board were to be filled-up in the ratio of 33:67
between the BBMB regular employees and the employees of
partner State Governments/Electricity Boards (States of
Himachal Pradesh, Rajasthan, Haryana, Punjab and Union
Territory of Chandigarh) working in the Board, respectively.
67% of the total vacancies were to be notified to the partner
State Governments/Electricity Boards according to their
share quota. It was in the event of non-availability of
required number of personnel from the partner State
Governments/Electricity Boards that the resultant shortfall
in such vacancies could be filled up from amongst the
BBMB regular employees. In the instant case, staff had
been requisitioned from the partner States as per their
allotted shares, but they did not deploy the requisitioned
staff. Awaiting the response from the partner States,
decision was taken to fill up vacant critical Class-III and
Class-IV posts in the Board on contract basis for a period of
one year. Such appointees had to give way on deployment
of staff by the partner States. The petitioners were selected
under regular recruitment process on contract basis. They
9
2025:HHC:11679were, however, continued after the expiry of the period.
They are still continuing to work. The petitioners were fully
aware of the conditions of Advertisement No.2 of 2014
issued by the respondent-Board, in terms of which, they
had participated in the selection process. The
advertisement clearly stated filling up temporary posts in
Class-III and Class-IV categories on contract basis for one
year, though extendable as per the requirement on lump
sum payment/fixed emoluments. Petitioners did not raise
any issue at the relevant time. They did not agitate that the
advertisement was contrary to the provisions of 1994
Regulations. The petitioners participated in the selection
process on the basis of terms & conditions mentioned in
the advertisement. The appointment orders issued to the
petitioners were as per stipulations of the advertisement,
clearly stating that the petitioners had been appointed on
contractual basis. Therefore, the petitioners are estopped
from raking the issue at this stage to contend that their
appointment is to be deemed to be on regular basis for all
intents and purposes and that their services are required to
be confirmed on completion of two years of probation
period.
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4. Heard learned counsel for the parties and
considered the case file.
4(i). The 1994 Regulations:- 4(i)(a). The facts are not in dispute. Against the
background of admitted facts, it will be appropriate to first
take note of different provisions of the Bhakra Beas
Management Board Class III and Class IV Employees’
(Recruitment and Conditions of Service) Regulations, 1994.
Regulation No.1(3)(iii) states that the Regulations shall,
inter alia, apply to the employees appointed by the Board
hereafter under the regulations. The said regulation reads
as under:-
“1(3) They shall apply to the following:-
(i) and (ii) …………..
(iii) The employees appointed by the Board hereafter
under these regulations.”
‘Appointing Authority’ has been defined under
Regulation No.2(1)(a) to mean as “the authority empowered
to make appointment to any post in the group of posts as
mentioned in Schedule ‘A’ annexed with these regulations”.
Regulation No.2(1)(e) defines ‘Direct recruitment’
as “an appointment made by selection on the
recommendations of the Staff Selection Committee or by the
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concerned appointing authority otherwise than by promotion
of an employee governed under these regulations”.
The word ‘Employee’ as per Regulation No.2(1)(f)
means “an employee of the Board to whom these regulations
apply”.
As per Regulation No.2(1)(j), probation means
“appointment of an employee against a regular vacancy for a
specific period to test his suitability for the post”.
‘Service’ is defined in Regulation No.2(1)(p) as
“the service of the Board and shall comprise groups of
various classes of posts shown in Schedule ‘A’ annexed with
these regulations”.
‘Staff Selection Committee’ as per Regulation
No.2(1)(o), is “a Centralized Committee as may be
constituted by the Chairman under regulation 4(2) for making
selection of candidates for appointment to the various Class
III and Class IV posts in the Board”.
Mode of appointment is governed by following
Regulation No.4:-
“4. Mode of appointment.- (1) Appointment to the post(s) in
the group(s) shall be made in the manner specified
against each in the Schedule ‘A’ annexed with these
regulations.
(2) The direct appointment to Class III and
Class IV posts borne on the cadre of Bhakra Beas
Management Board shall be made only, if the
12
2025:HHC:11679partner State Governments and their Electricity
Boards are unable to provide personnel for the
vacancies so notified to them. Such appointment
shall be made by the appointing authority on the
recommendations of the Centralized Staff
Selection Committee as may be constituted by the
Chairman.
(3)(i) The Staff Selection Committee, on the basis of
requisition received from the various Heads of
Departments of the Board shall advertise the vacancies
through the press and notify the vacancies to the
Employment Exchanges and shall hold tests and or
conduct interviews, as per the procedure approved by
the Chairman from time to time and recommend the
selected candidates to the respective Heads of
Departments for appointment.
(ii) The Heads of Departments shall allocate the
candidates recommended by the Staff Selection
Committee to the concerned offices of the Board. The
candidates hall be issued letters of appointment by the
relevant appointing authorities as shown against each
post in Schedule ‘A’ annexed with these regulations.
(4) A committee shall be constituted by the
Chairman to determine the mode for filling up the
vacant posts by promotion. Such vacancies shall be
filled up in the ratio of 33:67, between the Bhakra Beas
Management Board regular employees and the
employees of the partner State Governments/Electricity
Boards working in the Bhakra Beas Management Board
respectively. Only 67% of such total vacancies shall be
notified to the partner State Governments/Electricity
Boards according to their share quota and in the event
of non-availability of required number of personnel from
the partner State Governments/Electricity Boards,
resultant short fall in such vacancies shall also be filled
up from amongst the Bhakra Beas Management Board
regular employees.
(5) Notwithstanding anything contained in these
regulations appointment by promotion shall be made by
selection based on seniority-cum-merit and no employee
shall be entitled to such appointment as of right.”
As per Regulation No.4, appointments to the
posts are to be made in the manner specified against the
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post/groups in Schedule ‘A’ annexed with the regulations.
Schedule ‘A’ to the 1994 Regulations provides for different
Class-III and Class-IV posts in the respondent-Board
alongwith number of posts, pay scales, method of
appointment, minimum educational and other
qualifications, minimum experience and appointing
authority etc. The method of appointment mentioned
therein does not include appointment on contract basis. For
the post in question, the method of appointment is by direct
recruitment, i.e. governed by Regulation 4(2). Direct
appointment to Class-III and Class-IV posts borne on the
cadre of the respondent-Board is to be made only if the
partner States/their respective Electricity Boards are
unable to provide personnel for the vacancies so notified to
them and such direct appointments are to be made by the
appointing authority on the recommendations of the
Centralized Staff Selection Committee.
Regulation No.7(i), inter alia, provides that
“persons appointed to any post in the service shall remain on
probation for a period of two years, if recruited by direct
appointment and one year if appointed on promotion”. On
completion of probation period and subject to fulfillment of
prescribed conditions, an employee appointed against
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2025:HHC:11679
permanent vacancy is to be confirmed as per following
Regulation No.7(3):-
“(3) On the completion of the period of probation of a person
and also if a departmental examination is prescribed for
that post, the appointing authority may,-
(a) if his work and conduct has, in its opinion, been
satisfactory,-
(i) confirm such person from the date of his
appointment if appointed against a permanent
vacancy, or
(ii) confirm such person from the date from which a
permanent vacancy occurs, if appointed against a
temporary vacancy; or
(iii) declare that he has completed his probation
satisfactorily, if there is no permanent vacancy; or
(b) if his work and conduct has not been, in its
opinion, satisfactory,-
(i) dispense with his services, if appointed by direct
recruitment and if appointed by promotion revert
him to his former post or deal with him in such
other manner as the terms and conditions of his
appointment permit; or
(ii) extend his period of probation and thereafter pass
such orders as he could have passed on the expiry
of the original period of probation;
Provided that the total period of probation, including
extension, if any, shall not exceed two years in case of
those appointed on promotion and three years in case of
those appointed by direct recruitment.”
The 1994 Regulations are very clear that the
posts included in Schedule ‘A’ thereof can only be filled in
through direct recruitment on the basis of selection process
described in the regulations. The incumbents appointed as
a result thereof are to be confirmed in service on successful
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completion of probation period subject to fulfillment of
other codal conditions.
4(i)(b). 1994 Regulations have been framed by the
respondent-Board in exercise of powers conferred by sub-
Section (9) of Section 79 of the Punjab Reorganization Act,
1966 and the orders made by the Central Government
under first proviso to sub-section (4) of Section 79 of the
said Act. The Regulations, thus, have statutory force.
4(ii). Petitioners’ selection and appointment
vis-à-vis Advertisement No.2 of 2014:-
4(ii)(a). The Board could have resorted to recruitment
against vacant Class-III posts only in terms of 1994
Regulations. Advertisement No.2 of 2014, though was
issued by the Board for making appointment on contract
basis against Class-III and Class-IV posts, yet, admittedly,
there is no source of power with the Board for issuing such
advertisement for making appointment on contract basis
against permanent cadre posts of Class-III & IV categories,
which form part of Schedule of the 1994 Regulations.
4(ii)(b). Admittedly, petitioners’ selection under
Advertisement No.2 of 2014 for recruitment to Class-III
posts was in terms of 1994 Regulations and the procedure
prescribed therein. The procedure followed for making
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2025:HHC:11679regular recruitment was adopted in selecting and
appointing the petitioners under this advertisement. It is
also not in dispute that petitioners’ appointments were
against the sanctioned strength of vacancies in Class-III
category.
4(ii)(c). Advertisement No.2 of 2014 was issued
pursuant to the decision of the Board dated 30.10.2014
that direct recruitment will be resorted to for filling up
vacant critical posts, though on contractual basis, but
through regular selection process by the Centralized Staff
Selection Committee as per the mandate given in the
Bhakra Beas Management Board Class III and Class IV
Employees’ (Recruitment and Conditions of Service)
Regulations, 1994. If the mandate to the Board is only to
act as per the 1994 Regulations, then, there was no
occasion for the Board to deviate from these regulations
and to appoint the petitioners on contract basis. The
petitioners have to be considered as appointed on regular
basis as their appointments were in terms of 1994
Regulations, which do not envisage appointment on
contract basis. Further, petitioners’ appointment was after
following complete selection process envisaged under the
1994 Regulations for regular appointments. Denial of
17
2025:HHC:11679regular appointment to the petitioners, therefore, is not
only unjust and arbitrary, but is also unconstitutional.
1994 Regulations do not prescribe contractual
appointments as one of the mode of recruitment. The
respondents do not dispute that not only the petitioners,
but the Bhakra Beas Management Board is also governed
by the 1994 Regulations. In fact, not only the Board’s
decision dated 30.10.2014, but the appointment orders
issued to the petitioners also stipulate that petitioners
would be governed by the Service Rules and Regulations of
BBMB as in force from time to time. That being the
position, the statutory regulations cannot be superseded or
obliterated by any administrative instructions/
advertisement, issued in conflict with the Regulations. Once
the statutory regulations provide for employment on regular
basis, there was no occasion for the Board to go for the
contractual appointments.
4(iii). Respondents’ defence that since the partner
States had not responded to respondent-Board’s requisition
for allocating staff as per respective shares, the Board had
no option, but to go for contractual appointment against
vacant critical posts, is also not tenable.
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Firstly, the issue of shortage of manpower
against vacant critical posts was deliberated by the Board
with partner States under Item No.218.01 in the meeting of
the Board held on 09.05.2012, wherein, it was decided as
under:-
“Item Acute Shortage of Manpower in BBMB
No.218.01 (Carried over Since 210th Meeting of the
Board held on 03.05.2012).
Chairman, BBMB reiterated the issue of
Shortage of Manpower and intimated that he had been
highlighting this problem time and again in Board
Meetings for the last 3½ years starting right from the
205th meeting held on 04.10.2010 at Manali. He
pointed out that the shortage had been increasing day
by day due to retirement of personnel. He informed that
the retirements would be about 454 in the year 2014;
about 464 in the year 2015 etc. thereby aggravating
the manpower shortage further provided there is
proportionate induction from partner states/power
utilities. He reiterated his views that about 4 to 5 years
on job training was required to train the newly inducted
employees for learning, operation and maintenance of
power houses, substations, dams etc. in efficient
manner. He further informed that 943 critical posts had
been identified by BBMB. Out of these 943 critical
posts, 143 posts had been filled up by transfer of
employees from Ranjit Sagar Dam Project of Punjab to
BBMB. Even after filling of these posts about 800 posts
are still vacant. Chairman, BBMB further quoted
example of Chief Engineer/BSL who had been insisting
for deploying adequate Dredger operators otherwise he
would be left with no choice but to stop the dredging
operations at Sundernagar Balance Reservoir which in
turn would seriously affect the operation of 990 MW
Dehar Power House. Chairman, BBMB quoted another
example that due to shortage of staff, the operation of
EOT Crane was being done from the other category
employees such as electrician etc. which is risky. He
cautioned the Members that any fault in the Power
System and/or Hydro Mechanical System might cause
an incalculable loss to BBMB leading to catastrophic
19
2025:HHC:11679situation. He pointed out that two month notice for
recruitment of staff for filling the vacant posts is
required to be given to partner states and this period
had already elapsed since long. Therefore, BBMB can
easily go for recruitment as per regulation but BBMB
preferred consensus on the issue.
xxx xxx xxx
After detailed deliberation , the following was
approved by the Board only as a stop gap
arrangements:-
“BBMB can fill up the vacant posts by deploying
persons on contract basis till the availability of
regular employees from the partner states after
firming up legal issues, if any, and pay
packages.”
Though Chairman, BBMB reiterated that there
would be legal complication for making them permanent
and therefore, it is not a permanent solution to
overcome acute shortage of manpower of BBMB.”
The partner States did not depute the staff
required by the Board for filling up the critical posts lying
vacant for years together. The situation attracted
Regulation No.4(2), whereunder, the respondent-Board was
empowered to fill up posts lying vacant due to inability of
partner States to deploy staff, by resorting to regular
selection process and on regular basis.
Secondly, in case the respondent-Board wanted
to opt for contractual appointments for a short term,
amendment in regulations was required to be carried out.
No such amendment in the regulations was carried out. No
source of power has been shown by the respondent-Board,
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which authorized it to make appointment on contract basis
against sanctioned strength of vacant posts, that too, when
the terms & conditions of service of employees (petitioners)
appointed in the process are admittedly governed by 1994
Regulations, which do not provide for contractual
appointment as Mode of Recruitment. The only mode of
recruitment under the Regulations is direct recruitment on
regular basis.
4(iv). The discrimination meted out to the petitioners
vis-à-vis the selectees under the subsequent advertisement,
bearing No.1 of 2018, is also writ large. Advertisement No.1
of 2018 was issued for recruitment against temporary posts
of Group B and C categories in the respondent-Board.
Services of persons selected under this advertisement were
regularized on completion of requisite probation period. The
respondent-Board cannot apply 1994 Regulations
selectively to some persons and deny its applicability in
totality to the petitioners. Admittedly, selection process
adopted by the respondents for appointment of the
petitioners was same and similar as resorted to in case of
the incumbents selected under advertisement No.1 of 2018.
The petitioners cannot be discriminated and compelled to
continue on contractual basis year after year and be
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2025:HHC:11679
superseded by those, who were subsequently appointed in a
manner similar to them, but whose services stand
confirmed.
4(v). Considering petitioners’ case that in view of
1994 Regulations governing the field, they have to be
treated as regular employees from the date of their initial
appointment as also keeping in view respondents’ defence
that advertisement, in terms whereof petitioners were
appointed, stipulated contractual appointment, it will be
profitable to refer to Arjun Singh and Ors. Versus State
of Himachal Pradesh and others2, wherein the appellants
claimed regular appointment in view of the fact that they
had been appointed after following the selection procedure
for regular appointment and were continuing in service
since long. The High Court had held that regularization of
service was not permissible in view of specific terms &
conditions of pay and nature of appointment on contract
basis inserted in the advertisement. Allowing appeal against
this decision, Hon’ble Apex Court held that in fact, the case
was not of regularization of service, but where directions
had to be issued to the respondents to provide the
appellants with orders of regular appointment from the date
2
(2015) 15 SCC 713
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2025:HHC:11679
of their initial appointment. Respondents’ action of
prescribing less pay than regular pay scale on contract
basis to the appellants initially for one year and extending it
on year to year basis was held as unfair employment
practice, arbitrary & violative of Article 14 of the
Constitution of India. Relevant paras of the judgment read
as under:-
“4. After publication of Regulation 2006, the Electricity
Board decided to fill up the posts of Assistant Accounts
Officer through H.P. Public Service Commission. By
letter dated 14th March, 2007, the Electricity Board
requested the Principal Secretary (Power), Government
of Himachal Pradesh to take steps to fill up 14 posts by
direct recruitment on regular basis and to send
requisition to the Public Service
Commission……………….
6. However, when the Himachal Pradesh Public Service
Commission issued advertisement No.IX/2007 on 13th
November, 2007 inviting applications to the post of
Assistant Accounts Officer Class-I, for the reasons not
disclosed by respondents the scale of pay was shown
50% of the regular pay and the nature of appointment
on contract basis as apparent from Clause (c) of the
advertisement…………..
10. Learned counsel appearing for the appellants contended
that all procedure for regular appointment having been
complied with including recommendation by the Public
Service Commission, there was no occasion for the
respondents to employ them on contract basis and there
should not be any difficulty to provide them regular
appointment.
11. Learned counsel for the respondent opposed the prayer
on the ground that their appointment were made in
terms of Regulation 2006 on contract basis and there is
no provision for regularization of service.
15. The action on the part of the respondents/State
authorities including the Public Service Commission
prescribing 50% of the Regular pay of Rs.7750+DP on
contract basis initially for one year, extendable on year
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2025:HHC:11679to year basis is against the requisition and the decision
taken by Electricity Board. Such action on the part of
the authorities not only amounts to unfair employment
practice but also arbitrary and violative of Article 14 of
the Constitution of India.
16. It is clear that the terms of conditions of payment at the
rate of 50% of regular pay and nature of appointment on
contract basis was inserted in the advertisement by the
State authorities and the H.P. Public Service
Commission at later stage just to deprive the candidates
from their regular pay and their right to continue in the
service. The High Court failed to noticed the aforesaid
fact and erred in holding that the regularization of
service is not permissible. In fact it was not a case of
regularisation of service of the appellants but is a case
wherein direction ought to have been issued on the
respondents to provide the appellants with orders of
regular appointment from the date of their initial
appointment and to treat the initial period of two years
as probation and to provide them with other
consequential benefits.
17. For the reasons aforesaid, we set aside the impugned
judgment dated 27th June, 2013 passed by the High
Court of Himachal Pradesh at Shimla in CWP No.1553
of 2013-F and direct the respondents to provide letter of
regular appointment to the appellants w.e.f. the date of
their initial appointment treating the initial two years as
on probation with further direction to provide the
appellants with consequential benefits including regular
scale of pay, increment, arrears of pay, seniority etc. to
which they are entitled under the law. The formal
orders in compliance with this Court’s order to be
issued within two months and consequential benefits
should be paid within three months.”
State of H.P. and others Versus Ravinder
Kumar3 holds that contractual appointment cannot be a
mode of recruitment where the applicable Recruitment &
Promotion Rules framed under Article 309 of the
3
LPA No.21 of 2013 in CWP No.6727 of 2010, decided alongwith connected matters on
4.10.2019
24
2025:HHC:11679
Constitution of India do not permit it and only provide for
regular appointment. Paras relevant to the context are
extracted below:-
“4. Observations:
4(i) It is not in dispute that even though the State
Government on 12.12.2003 had requested all the
Heads of Departments to amend Clause-10 of R&P
Rules, for including contractual appointment as one of
the mode of recruitment in accordance with the decision
taken by the State, yet, Recruitment & Promotion Rules
for lecturers (school cadre) were not amended in tune
with 12.12.2003 decision of the State Government. The
mode of recruitment under the Recruitment & Promotion
Rules for appointment lecture (School cadre) continued
to be only on regular basis. It was only on 20.9.2010,
that Clause-10 of the R&P Rules for the posts in
question was amended and notified, incorporating
contractual appointments, as one of the mode of
recruitment.
4(ii) The college in question was taken over by the State on
6.2.2007. In terms of notification dated 25.8.1994,
services of the eligible staff were also required to be
taken over w.e.f. 6.2.2007. State though had taken over
the services of the staff of the Kanwar Durga Chand
Memorial College, Jaisinghpur only on 21.6.2010. Fact
remains that services of writ petitioners were taken over
prior to amendment of R&P Rules.
The services of the petitioners were required to
be taken over in terms of Recruitment & Promotion
Rules, which were in existence on the date of taking
over the college i.e. 6.2.2007. The R&P Rules as they
existed on 6.2.2007 did not provide for contractual
appointments. The Rules only provided for regular
recruitments. Service of petitioners were taken over
w.e.f. 6.2.2007. College itself was taken over on
6.2.2007. Therefore, clause providing appointment on
contractual basis inserted in the R&P Rules by way of
amendment of Rules on 20.09.2010, could not be
retrospectively applied to the petitioners.
It is apt to refer the judgment passed by this
Court, in CWP No.1811 of 2008, titled Dev Raj Vs. State
of H.P & others, relevant segment reproduced
hereinafter:-
25
2025:HHC:11679
“25…………………. Government appointments are
made in accordance with the Rules framed under
Article 309 of the Constitution of India. When such
Rules are framed the Government is expected to act
and make appointments in accordance with the
Rules. If the Rules do not permit the Government to
make appointment on contract basis they must be
made on regular basis.
4(iii) The notification dated 25.8.1994, under which State
Government took over the privately managed colleges
as well as services of staff working there, provides for
granting them Government scales as admissible to their
respective corresponding categories. Clause-9 of this
notification reads as under:-
“9. Provided that services of only those employees
will be taken over who furnish a written acceptance
on non-judicial paper duly attested by the
competent authority to the effect that they are
willing to be absorbed in Government services on
the terms and conditions laid down in these rules.”
There is no provision in the above notification for
taking over services of staff of privately managed
colleges on contract basis, more so, in the facts of
instant case, in view of Recruitment and Promotion
Rules of Lecturer (School cadre) as they existed on
6.2.2007 i.e. the date of take over, whereunder no
provision for appointment on contract basis was there,
regular recruitment was the only prescribed mode.
5. Thus, services of the petitioners’ were thus required to
be taken over w.e.f. 6.2.2007 on regular basis. There is
no infirmity in the judgment passed by learned Single
Judge. All these appeals are therefore dismissed
alongwith pending application(s), if any.”
4(vi). Principle of estoppel has also been invoked by
the respondents that the petitioners were aware of the
contractual nature of appointment and emoluments offered
under Advertisement No.2 of 2014. Years later, they cannot
be permitted to plead that advertisement was inconsistent
with statutory regulations and that their appointments
26
2025:HHC:11679
have to be construed as regular from the date of initial
appointments.
The above argument does not hold much
substance in this case. Right to regular appointment
claimed by the petitioners flows to them under Statutory
Regulations 1994. It is well established principle that there
can be no estoppel/acquiescence against law/statute or
constitutional provisions. If law requires something to be
done in a particular manner, then it must be done in that
manner. If it is not done in that manner, then it would have
no existence in eyes of law. Reference in this regard can be
made to Krishna Rai (Dead) Through LRs & Ors. Versus
Banaras Hindu University Through Registrar & Ors.4,
relevant paras whereof read as under:-
“23. The case laws relied upon by the Division Bench would
have no application in the facts of the present case as
none of the judgments relied upon by the Division Bench
laid down that principle of estoppel would be
above law. It is settled principle that principle of
estoppel cannot override the law. The manual duly
approved by the Executive Council will prevail over any
such principle of estoppel or acquiescence.
30. On the contrary, what we find is that, in the case of Dr.
Krushna Chandra Sahu and others Vs. State of
Orissa and others5, it has been held that the
suitability criteria is to be laid down by the rule
making authority and that the selection criteria
cannot be laid down by the Selection
Board/Selection Committee unless specifically4
Civil Appeal Nos.4578-4580 of 2022, decided on 16.06.2022
5
1995 (6) SCC 1
27
2025:HHC:11679authorized. In the present case, firstly, there was
no authorization to the Board of Examiners to lay down
the selection criteria and further there was clear
violation of the suitability criteria laid down by the
rule making authority. Paragraph nos. 31, 32, 33, 34,
35 and 36 of the said judgment are reproduced
hereunder:
“31. Now, power to make rules regulating the
conditions of service of persons appointed
on Govt. Posts is available to the Governor of the
State under the Proviso to Article 309 and it was in
exercise of this power that the present rules were
made. If the statutory Rules, in a given
case, have not been made, either by the
Parliament or the State Legislature, or, for that
matter, by the Governor of the State, it would be
open to the appropriate Government (the Central
Government under Article 73 and the State
Government under Article 162) to issue executive
instructions. However, if the Rules have
been made but they are silent on any subject or
point in issue, the omission can be supplied and
the rules can be supplemented by executive
instructions. (See: Sant Ram Sharma V. State of
Rajasthan).
32. In the instant case, the Government did
neither issue any administrative instruction nor
did it supply the omission with regard to
the criteria on the basis of which suitability of the
candidates was to be determined. The members of
the Selection Board, of their own, decided to adopt
the confidential character rolls of the
candidates who were already employed as
Homoeopathic Medical Officers, as the basis for
determining their suitability.
33. The members of the Selection Board or for that
matter, any other Selection Committee, do not have
the jurisdiction to lay down the criteria for
selection unless they are authorized
specifically in that regard by the rules
made under Article 309. It is basically the
function of the Rule making authority to provide
the basis for selection. this Court in State of
Andhra Pradesh and Anr. v. V. Sadanandam and
Ors observed as under: (SCC pp. 583-84, para 17):
“We are now only left with the reasoning
of the Tribunal that there is no justification
28
2025:HHC:11679for the continuance of the old rule and for
personnel belonging to either zone being
transferred on promotion to offices in other zones.
In drawing such conclusion, the Tribunal has
travelled beyond the limits of its jurisdiction. We
need only point out that the mode of recruitment
and the category from which the recruitment to a
service should be made are all matters
which are exclusively within the domain of the
executive. It is not for judicial bodies to sit in
judgment over the wisdom of the executive in
choosing the mode of recruitment of the categories
from which the recruitment should be made as
they are matters of policy decision falling
exclusively within the purview of the executive.”
(Emphasis supplied).
34. The Selection Committee does not even have the
inherent jurisdiction to lay down the norms for
selection nor can such power be assumed by
necessary implication. In P.K. Ramachandra lyer
and Ors. v. Union of India and Ors. (SCC pp.
180-81 para 44) , it was observed :
“By necessary inference, there was
no such power in the ASRB to add to the
required qualifications. If such power is claimed, it
has to be explicit and cannot be read by
necessary implication for the obvious reasons
that such deviation from the rules is likely
to cause irreparable and irreversible harm”.
35. Similarly, in Umesh Chandra Shukla Etc. v. Union
of India and Ors. it was observed that the
Selection Committee does not possess any
inherent power to lay down its own standards in
addition to what is prescribed under the Rules.
Both these decisions were followed in
Durgacharan Misra v. State of Orissa and Ors and
the limitation of the Selection Committee
were pointed out that it had no jurisdiction to
prescribe the minimum marks which a candidate
had to secure at the viva-voce test.
36. It may be pointed out that rule making
function under Article 309 is legislative and not
executive as was laid down by this Court in B.S.
Yadav and Ors. v. State of Haryana and Ors. For
this reason also, the Selection Committee or the
Selection Board cannot be held to have
29
2025:HHC:11679
jurisdiction to lay down any standard or basis for
selection as it would amount to legislating a rule of
selection.”
31. Further in the case of Tata Chemicals Ltd. Vs.
Commissioner of Customs (preventive), Jamnagar6,
it has been laid down that there can be no estoppel
against law. If the law requires something to be done in
a particular manner, then it must be done in that
manner, and if it is not done in that manner, then it
would have no existence in the eye of the law.
Paragraph 18 of the said judgment is reproduced below:
“18. The Tribunal’s judgment has proceeded on the
basis that even though the samples were drawn
contrary to law, the appellants would be
estopped because their representative was
present when the samples were drawn and they
did not object immediately. This is a completely
perverse finding both on fact and law. On fact, it
has been more than amply proved that no
representative of the appellant was, in fact,
present at the time the Customs Inspector took
the samples. Shri K.M. Jani who was
allegedly present not only stated that he did not
represent the Clearing Agent of the appellants in
that he was not their employee but also stated
that he was not present when the samples were
taken. In fact, therefore, there was no
representative of the appellants when the
samples were taken. In law equally the Tribunal
ought to have realized that there can be no
estoppel against law. If the law requires
that something be done in a particular manner, it
must be done in that manner, and if
not done in that manner has no existence in
the eye of law at all. The Customs Authorities
are not absolved from following the law
depending upon the acts of a particular
assessee. Something that is illegal cannot
convert itself into something legal by the act of a
third person.”
Respondent-Board’s action of appointing the
petitioners on contract when Statutory Regulations provide
6
2015 (11) SCC 628
30
2025:HHC:11679
only for regular appointment, is illegal. Administrative
actions in derogation to Statutory Regulations have no legal
sanctity. The advertisement made in violation of 1994
Regulations was beyond the authority and power vested in
the respondents. Such illegal action cannot be validated by
invoking ‘doctrine of estoppel’. Petitioners cannot be
deprived from the benefits that flow to them under the
Statutory Regulations 1994, viz. to be treated as having
been appointed on regular basis from the date(s) of their
initial appointment, corresponding pay scale, increments
etc. in accordance with 1994 Regulations. Respondent-
Board was also aware of the injustice meted out to
petitioners. Agenda items in succession had been prepared
for regulating petitioners’ contractual services.
4(vii). The sum & substance of above discussion is
that:-
(a). Recruitment to Class-III and IV posts in
respondent-Board is governed by the 1994 Regulations.
(b). 1994 Regulations have statutory force.
(c). 1994 Regulations do not provide for contractual
appointments against posts, which form part of Schedule to
the Regulations. In case of failure of partner States to
deploy the staff requisitioned from them by the Board,
31
2025:HHC:11679Regulation No.4(2) gets attracted, which authorizes the
Board to make direct recruitment on regular basis against
permanent posts forming part of Schedule. Mode of
Recruitment provided under the Regulations is direct
appointment by the Centralized Selection Committee on
regular basis.
(d). Respondent-Board was facing acute shortage of
manpower against critical posts that were part of Schedule
to 1994 Regulations. Partner States had not deployed the
staff requisitioned by the Board. Petitioners were selected
and appointed by the Board against permanent vacant
Class-III posts of critical nature by the Centralized Selection
Committee by following the mode of recruitment approved
under the 1994 Regulations. The posts against which
petitioners were appointed are part of Schedule to the 1994
Regulations. Petitioners were appointed by following the
selection process envisaged under the Regulations for direct
recruitment on regular basis.
(e). Appointment orders issued to the petitioners
stipulated that their service conditions shall be governed by
1994 Regulations.
(f). Other incumbents appointed subsequently to
the petitioners & in similar manner, have been confirmed in
32
2025:HHC:11679service on completion of successful probation period in
terms of 1994 Regulations, whereas, petitioners appointed
much earlier continue to serve on contract basis against
permanent posts.
(g). Denial of regular appointment to the petitioners
is contrary to the 1994 Regulations. Respondents’ action in
not appointing petitioners on regular basis is arbitrary and
unconstitutional. In the given facts of the case, where
stipulation of contractual appointment on payment of fixed
emoluments in the advertisement is violative of statutory
regulations, principle of estoppel cannot be held against the
petitioners for denying them the benefits that flow to them
under the Statutory Regulations.
5. In view of above, this writ petition is allowed.
The respondents are directed to treat the petitioners as
having been appointed on regular basis from the date of
their initial appointment for all intents and purposes. The
respondents are also directed to confirm the services of the
petitioners on their successful completion of probation
period prescribed at the relevant time in terms of the 1994
Regulations. Consequent thereupon, petitioners shall be
entitled for all the service benefits including seniority,
regular pay scale and increments etc. attached to their
33
2025:HHC:11679
post. This exercise be carried out within six weeks, failing
which, monetary benefits shall be payable alongwith
interest @ 5% per annum from the date of filing the
petition. Pending miscellaneous application(s), if any, also
stand disposed of.
Jyotsna Rewal Dua
April 30, 2025 Judge
Mukesh