A.B. Rohatgi, J.
(1) This is a petition under Art. 226 of the Constitution of India. The petitioners are four teachers. They are M. Sc. in Physics. All of them got themselves registered with Employment Exchange. A number of P.G.T. (Post Graduate Teachers) Posts fell vacant in 1969 in the subject of Physics. The Delhi Administration and the Director of Education, respondents I and 2, required the Employment Exchange to sent them names of suitable candidates for appointment to P.G.T. Posts. The Employment Exchange sponsored the names of 204 candidates in answer to this request. But only 100 candidates turned up. Their degrees and diplomas were scrutinised. 55 candidates out of these 100 were called for interview. Only 50 appeared. They were interviewed and their merit was assessed with reference to the percentage of marks secured by them in different examinations. The Staff Selection Board, after interviewing them, prepared a panel of 1969-70. In this panel the names of 12 candidates who had secured the highest marks were put in the order of merit. One Scheduled caste candidate was put at No. 13. The life of this panel, it was expressly said, shall remain in force up to 21-7-1970.
(2) The names of these four petitioners did not appear in this panel. thereforee, these persons did not get any regular appointment on the basis of that panel. But there were some adhoc vacancies in the department in the subject of physics. During November 1969 and December 1969 these four petitioners were appointed in the P.G.T. Grade on adhoc basis for three months and later on their appointments were extended till such time as the vacancies were filled on a regular basis. Their appointments, however, were continued till 6-7-1970. On 6-7-1970, an order was issued by the Director of Education that the services of these adhoc teachers, namely, the petitioners are terminated with immediate effect. So these petitioners' appointment as P.G.T. teachers came to an end.
(3) After termination of their services what happened was this. During the period of July 6,1970 to 8th December 1970, these petitioners Were reappointed to a lower post, name as Trained Graduate Teachers (TGT). The order of appointment said :
'INcontinuation of this office order No. 42, dated 6-7-1979, and consequent on the termination of their services as Post Graduate Teachers, the following teachers are allowed to continue as Trained Graduate Teachers in the scale of Rs. 190-425 w.e.f. 6-7-70, as they were holding these posts prior to their appointment as PGTs and are posted to the same schools for the time being till further orders against the vacancies of P.G.Ts. caused due to termination of their service.'
(4) The petitioners are continuing in their posts of TGTs since 1970 till today. Subsequently in these posts they were regularised. Tgt scale of pay is Rs. 190-425, while Pgt scale of salary is Rs. 300-600.
(5) The petitioners were dissatisfied with their lot They made representations to the Director of Education, respondent No. 2, on 13-1-1971 and October, 1971. They complained that they were entitled to Pgt Posts as they had been interviewed and selected for those posts by the Staff Selection Board. As a result of this representation the Staff Selection Board in their meeting of 5-4-1971 took the following decision :-
'THEStaff Selection Board decided that these candidates were appointed out of the merit list of 1969-70 after interviewing the candidates sponsored by the Employment exchange and as such to call them again for interview was not justified. Considering this fact sympathetically the names of candidates in respective subjects may be placed on the top of the panel of 1970-71 in order of their merit. Accordingly it is approved that the candidates whose names are given above may be included in the concerned panel'.
(6) Now the persons whose names were ordered to be put on the top of the list are the following six candidates :-
Subject : Post Graduate Teachers (Physics). SI. No. in Merit 1. Shri R.P. Garg. 17. 2. Shri Harcharn Sharma. 21. 3. Shri Kanti Pershad Sharma (Petitioner No. 3). 27. 4. Shri Om Pal Singh Dixit (Petitioners No. 2) 28. 5. Shri Bharat Kumar Uppal (Petitioner No. 4). 28. 6. Shri Vijay Pal Singh (Petitioner No. 1). 21.
(7) As these four petitioners were not appointed to Pgt posts in spite of their names being put on the 'top of the panel of 1970-71' they brought this writ petition on 6-2-1972 claiming that the order dated 6-7-1970 passed by the Joint Director of Education, .respondent No. 3, was illegal and that they be reinstated in service as FGTs and the arrears of pay and allowances of that post be paid to them. The petitioner, apart from the Delhi Administration, Director of Education, Joint Director of Education, respondents 1 to 3, have also imp leaded a number of other Pgt teachers. But the only contesting respondents are respondents I to 3. On their behalf affidavits were filed along with the annexures in 1973 and 1974 to which I will refer presently.
(8) On 25-8-1977 the petitioners made an application requiring respondents 1 to 3 to produce record particulars whereof were given in the application to enable them to inspect them No record has been filed up to date. This court made a number of orders to respondents 1 to 3 requiring them to produce record. At one stage Mr. K.S. Bindra, counsel for the respondents, on 19-12-1977 stated before the court that he had received the record from the department and that he will file the same in court. But this was not done. The registry then issued reminders to the respondents. But no record was filed. At long last the matter came before B.N. Kirpal, J. On 6-1-1982. He took a serious view of the matter and directed that contempt notice be issued to respondents I to 3 to show cause why action be not given against them for non compliance with the orders of this court. In answer to this order the Joint Director of Education filed an affidavit on 27-4-1982 affirming that the record was made over to counsel and that thereafter it is not traceable. So the record has not been produced. This is the long and short of the matter. What will be its e:Tect on the defense of the respondents I will point out a little later.
(9) The order of 5-4-1971 passed by the Staff Selection Board that these petitioners whose names were sponsored by the Employment Exchange ought to be put at the top of the panel of 1970-71 is the foundation of the petitioners' claim in this case. The merit list of 1969-70 is the bed rock of their case. In spite of the order of the Selection Board the petitioners were not appointed to Pgt posts, as I have said. In defense the Director of Education has pleaded that in terms of the order of Selection Board the names of these petitioners were put on the top of the panel. But during the life of the panel only two of the teachers out of the 6 candidates whose name were ordered to be put on the top of the panel were appointed to Pgt posts. They are R.P. Garg and Harcharan Sharma. The Director has complied with the order of the Board in so far as these two candidates are concerned. But with regard to these four petitioners it is pleaded that the life of this panel of 1970-71 was for a fixed period. Its life began in June, 1970 and ended in June 1971. It was extended further for a period of six months and finally the life of the panel came to an end in December, 1971. During this period of 1' years, which is said to be the life of the panel, the case of the Director is. that only 2 posts fell vacant so far as the direct recruits quota was concerned and out of the six candidates whose names were put on the top of the panel only two could be appointed against these posts. It was said that the ratio of appointment between the direct recruits and the departmental candidates to Pgt posts was 25 : 75 per cent. It is further said in the affidavit that in the quota of direct recruits four vacancies occurred during the life time of the panel. Two have gone to R.P. Garg and Harcharan Sharma. The remaining two went to two other teachers, namely, R.K.Goel and P.K. Jain who had become 'surplus by reason of taking over of the aided schools and had to be absorbed only in posts made available in direct recruit quota', to use the words of the affidavit dated 29-5-1974. This is the sole defense to the petition. It is this defense which needs to be closely examined in this writ petition.
(10) A fact of capital importance in this case is that these four petitioners were put on the merit list of 1969-70 on the basis of the interview held after calling the names of eligible candidates through the Employment Exchange. After they had come on the merit list they were entitled to be appointed in the order of merit to the post of PGTs as soon as a post fell vacant. This in short is the claim of the petitioners. For their claim the petitioners heavily rely on the Hand Book of personnel officers published by the Department of Personnel and Administrative Reforms, Cabinet secretariat. New Delhi. There are detailed instructions in chapter Iv of this Hand Book. The rules lay down that for purposes of direct recuitment the Government must ask Employment Exchange to sent the names of eligible candidates. The Government should not tap any other source of recruitment unless the Employment Exchange issues a certificate of non-availability of candidates with it. This Employment Exchange procedure cannot be departed from unless the Director General of Employment and Training is consulted and approval is given by the Joint Secretary of the Ministry concerned
(11) As a rule this normal procedure must be followed. This is the strict instruction. The employment Exchange sends the names of eligible candidates. They are interviewed and selected by a Selection Board if they fulfill the prescribed age and educational qualifications. The rules further lay down that if departmental candidates complete with the employment exchange nominees no preferential treatment is to be given to the Departmental candidates. Rule 3,6 says:
'Aperson who has been taken in a leave/short term vacancy through the Employment Exchange may be absorbed in subsequent leave/ regular vacancy in the same grade, in the same office, provided he, in comparison with other candidates on the Register of the Employment Exchange, stands a definite chance of being submitted if the subsequent vacancy is notified to the Employment Exchange. In such a case, it is not necessary to insist on the subsequent leave or regular vacancies in the same office being filled afresh through the Employment Exchange concerned. The transfer of the candidate a subsequent vacancy will be subject to the condition that there is no break in his service and the quota of vacancies for priority and non-priority candidates is not disturbed'
(12) This is a direct and positive instruction on the subject. It is based on the Ministry of Home Affairs Office Memorandum of 16.10.1957. It safeguards the rights of the candidates sponsored by the Employment Exchange.
(13) The petitioners have also placed on record subsequent instructions issued by the Government of India to the Delhi Administration on 7.8.1976, 16.9.1973 and 13.10.1978 All these instructions clearly say that in the case of candidates routed through the Employment Exchange 'no validity period has been prescribed for panels'. The procedure is that the staff selection Board selects them after interview and prepares a merit list if they satisfy the requirements regarding age and educational qualifications. The names of these four petitioners were put on the top of the panel of 1970-71. The critical question is: can there be a life of the panel of 1970-71? Can it be said that the life of that penal expired by efflux of time in December, 1970, as is the case of the Director of Education.
(14) In my opinion, it will not be true to say that the life of the panel of 1970-71 ended in December, 1971 and the petitioners were rightly turned away on the ground that no vacancies arose within the life span of the panel to absorb them. The instructions of the Ministry of Home Affairs and the Department of Personnel are positively against this contention. The instructions say that there is no life span of the panel which includes the name of candidates sponsored through the Employment Exchange and found eligible both as regards age and educational qualifications. If this is the requirement then it cannot be said that the panel was exhausted because its period expired in December, 1971. There is a clear disregard in this case of the Employment Exchange Recruitment Rules issued by the Ministry of Home Affairs from time to time. If this is the conclusion, it must necessarily follow that the Government did not act according to the panel prepared by the Selection Board and at the top of which the names of these petitioners were ordered to be placed.
(15) A host of question arise on the order of 5.4.1971. The first thing to notice is that the Selection Board expressed strong disapproval when the petitioners were called again for interview before it at its meetings in March and April, 1971. They expressed the view that the candidates whose names appeared in the merit list of 1969-70 ought not to have been called for interview because their names had been sponsored by the Employment Exchange, because they had been interviewed by the Board, and because their names had appeared in the merit list. So on there grounds they took the view that calling them again for interview was unjustified. What is significant is that at this meeting of 5.4.1971 the Labour Commissioner was present. He was there to see that the rights of the nominee of Employment Exchange are not squandered away by disregarding the recruitment rules. This is why there was disapproval and a positive direction. The Board said that the petitioners cannot be taken for a ride and they must be assigned their due places in the merit list. They took a decision. They directed that the names of six candidates including the petitioners be placed on the top of the panel. Now out of these six persons two Garg and Sharma were appointed to Pgt posts. In fact Garg was never reverted. He continued to hold Pgt Post throughout. Harcharan Sharma was appointed to a Pgt post which fell vacant after the order of 5.4.71.
(16) The next question is, assuming that 2 other posts fell vacant, as the Director says, during the life time of the panel, could those posts be given to 'surplus' teachers. Counsel for the director says that there is no statutory bar in appointment 'Surplus' teachers, namely, Goel and Jain against the quota of the direct recruits because there was a pressing necessity to find employment for these teachers who had become surplus. In my opinion, the surplus teachers could not be appointed by the Director to the prejudice of the present petitioners. The abosrption of surplus teachers is the responsibility of the State. It is not disputed that at the relevant time in 1970-71 there was no statutory obligation. It was a moral claim of the surplus teachers which the State tried to meet. So the surplus teachers were the moral responsibility of the State and if they had to be provided the Government could have created more posts according to the exigencies of the situation.
(17) There is yet another answer to this argument. Suppose 2 surplus teachers were appointed in 1970 or 1971 the names of these four petitioners then ought to have been carried over to the penal of next year, assuming that panel had a life span. If the surplus teachers were to be preferred to the petitioners, then the petitioners should have been given the posts when in future the posts fell vacant. But the answer of the Director is that with the life span of the panel coming to an end the rights of the petitioners to Pgt posts were exitinguished altogether.
(18) Another question that arises is about the panel itself. The Director has not produced the penal of 1970-71. We do not know how many names were borne on this panel. That there was a panel is clear from the order of 5.4.1971 because the Selection Board said that the names of six persons be put on the top of the panel. Now the panel of 1970-71 has not seen the light of the day. It is not possible to find out as to how many persons from that panel were appointed and when? How many were number of vacancies and when they were filled? How were the vacancies between the direct recruits and departmental candidates distributed? When were Surplus teachers appointed. It is possible that juniors whose -names were on the panel after the petitioners' names may have been appointed during the period. Only the panel would have shown this. The petitioners cite the case of one Vijender Kumar Sharma as an example of capricious appointment in 1969 with the petitioners, in November, 1969 he was appointed as Pgt and he has continued as a Pgt teacher throughout without any break in his service. What is surprising is that his name does not appear in the merit list of 1969-70 nor on the panal of the year. inspire of this he continues to hold the post. The Director has not explained how Vijender Kumar Sharma was appointed, when and against which post? The true position is that junior must revert if there is no vacancy. This rule has not been observed as the case of Vijender Kumar Sharma vividly illustrates it.
(19) The panel of 1969 has been produced. The order of 5.4.1971 has been fifled by the Director. The affidavits speak that they are based on the record. But the records themselves have not been produced. Nor has the panel of 1970-71 been produced. It thereforee, in the absence of the records would be difficult to accept the defense of the Director that the panel was exhausted and apart from the four vacancies which were duly filled by him no other vacancy arose till December, 1971.
(20) I am of the view that there was no life span of the panel so far as these petitioners were concerned. I am also of the view that in any event the appointment of Goel and Jain as surplus teachers was not validly made in supersesion of the claims of the petitioners. Absorption of surplus teachers was the responsibility the of State. This is clear from the Delhi School Edcucation Act and Rules 1973. Rule 47 provides that where as a result of the closure of an aided school or any class or classes in any aided school any employee becomes surplus, such employee' 'shall be absorbed, as far as practicable in such Government school or aided school as the Administrator may specify'. This rule was framed in 1973. It has no application to the case. It did not apply in 1971 because it did not exist. It is, thereforee, difficult to resist the conclusion that the petitioners ought to have been appointed in the two posts which admittedly fell vacant in 1970-71 and went to surplus teachers.
(21) With the appointment of R.P.Garg and Harcharan Sharma the petitioners have no quarrel. They dispute the appointment of Goel and Jain in their (the petitioners') places. I think this contention is valid. I have reached the conclusion that the plea that the panel was exhausted does not hold good in the case of the petitioners whose names were sponsored through the avenue of Employment exchange. As the record in this case has not been produced, it is not possible to say that no other post fell vacant in the direct recruit quota because this plea of the Director is belived by the single instance of Vijender Kumar Sharma whose appointment remains a mystry. The petitioners ask for a writ of certiorari. This writ goes to the record. In such cases the record is brought up before the court. But here there is no record. So there is no defense to the petition. I would says this because the defense in the counter affidavit is not substantitated by any record. The petitioners thereforee succeed.
(22) Counsel for the respondents says that mere inclusion of petitioners' name in the panel did not create any right. I do not agree. When their names were ordered to be put on the top of the panel it means they had a right to the post, if a post fell vacant. It is this right which has been disregarded in this case. The claims of the petitioners have been passed over in silence. There are circumstances, internal and external, in this case which strongly suggest that there was no fair play. If there is one thing in the services which may be regarded as an absolute prerequisite it is fair play. Fair field and no favor, is the maximum which ought to be observed at all costs and at all times. Vijneder Kumar Sharma's appointment of the two surplus teachers cast grave doubts on the validity of the defense. Continuation of R. P. Garg throughout as Pgt indicates that the candidates did not have their due, their rightful places in the vacancies as they fell due. Surplus teachers, if they were to be absorbed, ought to have been absorbed against the departmental candidates which, we are told, was 75%. The direct recruits quota of 25% could not be frittered away at the sweet will of the Director. It is not. given to the Director to make and unmake employment rules at pleasure.
(23) One thing is clear. There was arbitrariness. All arbitrariness is offensive to legality. This is the basic principle of service jurisprudence as of administrative law. In turth service law is a developing branch of administrative law. Power must not be abused. If there is misuse of power the courts will interfere. The employment exchange Recruitment rules were disregarded. Time bound panels were framed in contravention of these rules. Employment Exchange Rules explode the theory of time bound panels in so far as candidates sponsored through the Exchange are concerned. Panels are well recognised in cases of departmental candidates. But to extend them to the field of Employment Exchange nominees is to deny the right of the best man available at the time and duly selected and to nullify it completely by applying the gullotine of time.
(24) It was said that the petitioners can aspire to the post of P.G.T. in the long run through the avenue of promotion. But in the long run we are all dead, as Keynes has said. ''Men live fast and are imparient of the slow working of natural laws', as Bryee has observed. (Quoted in P.S. Atiyah-The Rise and Fall of freedom of contract, P. 650)
(25) The Staff Selection Board a pointed out the illegality and expressed its displeasure over the employment procedures of the respondents. The roman maximum 'first come first served' was accepted by the selection board. But in truth and substance it was never implemented. Case by case, precedent by precedent, the courts are building up a service jurisprudence aiming to secure to the man his right to the post if he is otherwise qulified to hold the post. in a way the law is assuring to him the right to work. One single aim of the employment procedure through the Exchange is to secure this right to work to its nominees. It is true that to work is not a guaranteed fundamental right in our Constitution, though it aims at a socialist republic. The movement of progressive societies, Sir Henry Maine has said, has been from status to contract. Now, it is again from contract to status. The legal position of a Government servant is more of a status than of a contract. (Roshan Lal Tandon V. Union of India 1967. SLR. 832. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. In such contracts as those of service the tenandey in modern times is to withdraw the matter more and more from the domain of contract into that of status (Salmond and Williams on contract, 2nd Edn. P. 12). It is this status which the law seeks to protect to the employee. On the whole case I have come to the conclusion that the petitioners had a right to the P.G.T. Posts and it is this right that has been infringed.
(26) Counsel for the respondents argued that there was delay in filing the petition. There is no merit in this contention. In July, 1970, the petitioners were reverted to Tgt posts. In January, 1971, they represented against injustice done to them. The representation was repeated in October, 1971. In April, 1971 the Selection Board gave a decision in their favor. They waited for their appointments to Pgt in 1971 and 1972. In February, 1972, in the winter of their discontent, they filed this petition which it was clear that the department was denying them their right to Pgt Posts. Delay in the case is not fatal. This is the conclusion I have come to on this part of the case.
(27) The next question is about the relief. To what reliefs are they entitled. These petitioners were appointed as PGTs in November and December, 1969. Their appointments were terminated on 6-7-1930. The order of April, 1971, show that they were entitled to be appointed as PGTs. To call them again for interview before the Selection Board was held to be unjustified. The order of termination dated 6-7-1970 and the order of appoitment to Tgt posts passed soon after clearly show that they continued to work in the same school in the same posts as before. The only thing was that they were down graded. From P.G.T. they become TGT. This was illegal. So the order of this court must now put them back to PGT. The order must relate back to 6-7-1970. The petitioners will thereforee be entitled to the salary of Pgt teachers as from 6-7-1970 because for no fault of theirs they were not appointed. No one can be penalised for no fault of his. It will not be right to deny them the salary of the posts to which they became entitled. (See alappat Narayana Menon v. State of Kerala (1977) 2 Slr 656 : Charan Dass Chadha v. State of Punjab (1980) 3 Slr 702.
(28) Their seniority will count from the dates of their respective appointments in November and December, 1969. Respondents 1 to 3 will take steps to appoint them in Pgt posts as soon as possible. The parties are, however, left to bear their own costs.