Gujarat High Court
Parmar Ramsinh Nathabhai vs State Of Gujarat on 1 April, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/9458/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR ORDERS) NO. 4 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 5 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 7 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 8 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR ORDERS) NO. 9 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2017
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 100 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 100 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4140 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5721 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 8761 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 8983 of 2018
Page 1 of 79
C/SCA/9458/2017 CAV JUDGMENT
With
R/SPECIAL CIVIL APPLICATION NO. 9790 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 15463 of 2017
With
CIVIL APPLICATION (FOR CLARIFICATION) NO. 1 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 15463 of 2017
With
CIVIL APPLICATION (FOR CLARIFICATION) NO. 2 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 15463 of 2017
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 15463 of 2017
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 4 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 15463 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 18167 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PARMAR RAMSINH NATHABHAI & 120 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Page 2 of 79
C/SCA/9458/2017 CAV JUDGMENT
Appearance:
MR A S TIMBALIA, ADVOCATE, MR NIRAV C SANGHAVI, ADVOCATE
MR. YATIN OZA, SR ADVOCATE for MR MN MARFATIA, ADVOCATE for
the Petitioners
PETITION WITHDRAWN/DISMISSED(73) for the Petitioner Nos. 76,82,93
MS SANGITA VISHEN, AGP for the Respondent(s) No. 1,2
MR MANISH J PATEL(2131) for the Respondent(s) No. 3
MR S.N.SHELAT, SR ADVOCATE for
MRS. V.D.NANAVATI, ADVOCATE for the applicants
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 01/04/2019
CAV JUDGMENT
1. This group of petitions is arising out of similar background of facts and law. Learned advocates appearing for the respective parties have requested the Court to deal with and decide this entire group by treating Special Civil Application No.9458 of 2017 as a lead matter and accordingly by taking factual background from this lead matter, all these petitions are dealt with by present common judgment and order.
2. This lead petition, under Article 226 of the Constitution of India, is filed seeking following reliefs.
"(A) This Hon'ble Court may be pleased to admit this Special Civil Application;
(B) This Hon'ble Court may be pleased to issue an appropriate writ of mandamus or any other appropriate Page 3 of 79 C/SCA/9458/2017 CAV JUDGMENT writ order or regularise the service conditions of the present petitioners and to confer the benefit of permanency on that post of Lecturers held by them in different Government colleges and to give them all consequential benefits with effect from filing of this petition. (C) This Hon'ble Court may be pleased to issue an appropriate, writ order or direction to direct respondents, their agents and servants not to terminate the service of the present petitioners in any manner.
(D) This Hon'ble Court may be pleased to direct respondents to forthwith frame and implement the scheme to relax age and to select the qualified and experienced adhoc Lecturers / Contractual Lecturers through a limited competitive exams as suggested by this Hon'ble Court in its order dated 24.3.2011 passed in LPA No.2986 of 2012; (E)That this Hon'ble Court may be pleased to allow this petition by issuing a writ or direction against the respondents to direct the respondents to consider the case for minimum pay scale of Lecturers as they have been appointed against sanctioned vacant post in the interest of justice.
(F)Pending admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to restrain the respondents from discharging the petitioners or terminating their services of the petitioners in any manner. (G) Pending admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to direct the respondents to maintain status quo of the service condition of the petitioners (H) To pass such other and further orders as may be deemed just and proper in the circumstances of the case."
2.1 This petition is filed on the premise that present petitioners have been appointed on vacant post of Assistant Professor / Lecturer in Government Arts, Commerce and Science colleges and Government B.Ed. colleges, AMP Law College Rajkot respectively on contractual basis for a fixed period of 11 months or till regularly selected candidates by GPSC are available whichever is earlier.
Page 4 of 79 C/SCA/9458/2017 CAV JUDGMENT2.2 The case of the petitioners that they are possessing requisite qualification for the post in question to which they are holding at present and the said appointment orders for 11 months are stated to have been extended from time to time. On oath, the petitioners have submitted that their appointments have been made on the basis of Government Resolution dated 17.06.2009 issued by Education Department and the appointments have been approved by Respondent No.2. All the petitioners have not produced their respective appointment orders with a view to avoid unnecessary burden on record of the case but have clearly asserted that all the petitioners are holding appointment orders.
2.3 The petitioners have rushed down to this Court by making a specific stand on oath that during the contract of their services, the Government has issued a fresh advertisement for recruitment to posts of Professor on regular basis which is in fact not needed at all since the petitioners are already having sufficient experience and requisite qualification. A further assertion which has been made that petitioners are apprehending that before the completion of their 11 months period, they may be removed from the service without following due process. Repeated averments have been made that Government is inclined to terminate services even before expiry of their renewed contract of 11 months. It has further been asserted that petitioners are serving in a vacant sanctioned posts and as such even though they are on contractual basis are entitled to minimum payscale for the post of Lecturers as per the decision delivered in Special Civil Application No.8152 of 2015. The Page 5 of 79 C/SCA/9458/2017 CAV JUDGMENT petitioners on account of their appointments are also entitled to not only the benefits of regular payscale but the other benefits like annual increment, vacation leave and rise in the payscale from time to time. However, it has been asserted that discriminatory treatment is meted out to the petitioners and as such State has adopted exploitative pattern and as the petitioners are being exploited by the State Authority and this practice has been adopted from time to time by the authority and inspite of petitioners having same qualification, same eligibility criteria are being dealt with as a contractual employees only. The petitioners have agitated this grievance since the GPSC has issued an advertisement for filling up 554 posts of Assistant Professor in different faculty in the Government Arts, Science and Commerce college and the subject for which the petitioners majority are in the subjects which are mandatorily required. On oath, it has been asserted that on earlier occasion in an identical set of facts detailed order is passed on 07.09.2016 whereby the State Government was directed to consider their cases for regularisation as they are working for more than decades and have been directed to frame and implement the scheme as suggested by Hon'ble Division Bench in Letters Patent Appeal and considered the case of petitioner for regularisation. Even the Bombay High Court decision is also tried to be pressed into service for claiming relief but then without clarifying any other circumstance preceding the filing of this petition multiple reliefs have been prayed for in para:6.
2.4 This group of petitions have been entertained by the Court but then after couple of months, the State as well as newly Page 6 of 79 C/SCA/9458/2017 CAV JUDGMENT recruited candidates not only who have been appointed actually in a regular process of recruitment but waiting for posting have come up for vacating interim relief which was granted wayback on 05.05.2017 and as such the Court in the background of the aforesaid serious issues of facts and law have chosen not to vacate interim relief but found it just and proper to deal with petitions finally. Hence, applications came to be rejected on 23.01.2019 and the hearing of this entire group, with the request of learned advocates, has been fixed in the first week of February, 2019.
2.5 Accordingly, petitions have been heard by this Court in which learned senior advocate Mr.Yatin Oza took lead and made submissions on behalf of the petitioners.
3. Mr.Yatin Oza, learned senior counsel appearing on behalf of petitioners, in common, for Mr.Marfatia, learned advocate for petitioners has, first of all, drawn attention to the reliefs clause contained in the petition, which is treated as lead matter i.e. Special Civil Application No.9458 of 2017 and has submitted that essentially the petitioners are pressing for reliefs contained in (B) and (E) of the reliefs clause. Learned senior advocate has submitted that these petitioners, majority of them are appointed as a Lecturer / Assistant Professor, through proper mode of selection conducted by their respective educational institutes and, therefore, cannot be said to be an irregular appointees. It has been contended that this innocuous mode of employment under the guise of contract is a device adopted to exploit the employees and time and again the Apex Court has deprecated this practice of such pattern.
Page 7 of 79 C/SCA/9458/2017 CAV JUDGMENTLearned senior advocate has submitted that, first of all, in the year 1996, at primary educational level, 'Balguru' scheme was floated. Thereafter, somewhere in the year 1999 new scheme for the purpose of appointment of Vidyasahayak and Shikhshan Sahayak came to be introduced. This is only with a view to see that State can absolve itself from the responsibility of permanent employment and now practically after the year 2006 almost in all services of the State this contractual employment pattern is adopted in every department right from police department to education department and after appointing these persons purely on ad hoc and temporary basis, the Government is making these employees as permanent on their sweet will after the lapse of five years. The Division Bench of this Court, according to learned senior advocate for the petitioners, has come out heavily and found that this is nothing but fraud on the constitution and struck down this employment pattern and directed the State authorities to pay the equal wages [Misc. Civil Application No.418 of 2012 in Writ Petition (PIL) No.49 of 2011 decision of Hon'ble Chief Justice Bhaskar Bhattacharya (as His Lordship then was) and Honourable Mr.Justice J.B.Pardiwala dated 11.04.2012]. In the decision delivered by the Apex Court even wayback rendered in case of Dhirendra Chamoli vs. State of U.P. reported in (1986) 1 SCC 638, Honourable Mr.Justice Bhagwati has also come out heavily and found that this kind of system being adopted is nothing but sheer exploitation. By referring to some of the decisions learned senior counsel has contended that for no fault on the part of the present petitioners who have been appointed after regular process are being discontinued and thrown in to Page 8 of 79 C/SCA/9458/2017 CAV JUDGMENT dearness. Following decisions are referred to by learned senior advocate (I) a decision rendered in Misc. Civil Application No.418 of 2012 in Writ Petition (PIL) No.49 of 2011 decision of Hon'ble Chief Justice Bhaskar Bhattacharya (as His Lordship then was) and Honourable Mr.Justice J.B.Pardiwala dated 11.04.2012, (ii) in a decision rendered in Special Civil Application No.10852 of 2003 and allied matters dated 17.09.2014, (iii) in a decision rendered in Special Civil Application No.4853 of 2015, (iv) (2017) 1 SCC 248 and (v) in the case of Dhirendra Chamoli vs. State of U.P reported in (1986) 1 SCC 638. By referring to these decisions, learned senior counsel has submitted that pattern of an employment is adopted only with a view to see that no person can claim any legal right out of this kind of employment. The importance of an issue of education for the country was treated as of immense importance and right from the speech of late Prime Minister Jawaharlal Nehru, in his last speech on the floor of house, has indicated this as a prime subject for the government to give importance. It has been submitted that the Professor / Lecturers in the Government colleges are being appointed through Gujarat Public Service Commission and only difference is that though petitioners are regularly selected candidates by selection committee of respective institute are fulfilling the eligibility criteria but only difference is that they are not on the basis of recommendation of Public Service Commission. It has been submitted that on regular interval, the Public Service Commission is required to notify vacancy upon analysis of requirement and regular requisition is to be made but in the present days, in the recent past, no such regular requisition are being made for the obvious reasons to exploit this Page 9 of 79 C/SCA/9458/2017 CAV JUDGMENT kind of importance so that State Exchequer may not have to pay regular pay structure to them as well as to see that no legal right be conferred in favour of employees like petitioners and as such the State Authority while permitting the services cannot be given a premium on its own wrong and it is the State Authority which is appointing and as such cannot be permitted to take a different stand. It has been further submitted that there is a specific Government Resolution issued by the State Authority mandating each department of its functioning to notify and analyse as to how many posts are required to be filled in and at what interval of time the recruitment process to be undertaken and this policy framed by the Government itself is not being ad here to and as such the action on the part of the authority in insisting upon the termination of petitioners' services is nothing but an absolute example of arbitrariness and capricious power with a mala fide intent. It has further been submitted that there is always a legitimate expectation in the mind of person who has been given an employment even on contract basis that they will be filled in and absorbed in regular setup over the period of time since they are meritorious and experienced persons and here, as per learned senior advocate for the petitioners, it is not the case of the respondent State that none of the petitioners are having any inadequacy about qualification and the requisite criteria. The only difference is that these petitioners are appointed by the alternative mode of recruitment by relevant institute and were not through the proper channel of recommendations of the Gujarat State Public Service Commission. The continuation of those petitioners over the period of time if not to be protected a serious prejudice will cause to several petitioners Page 10 of 79 C/SCA/9458/2017 CAV JUDGMENT as by efflux of time either they must be age bar or on account of some eventuality they might not be in a position to achieve eligibility criteria and furthermore it has been pointed out that these petitioners are bynow have acclaimed an adequate experience of teaching so continuation and absorption of them by regularising their services would be in the best interest of education of relevant institutions and, therefore, besides any technicality or hyper technicality, termination / discontinuation will not be in the interest of education at large. It has further been vehemently submitted by learned senior advocate that over the period of ten years several new colleges have been opened up in a mashroom like manner and the State Authorities are with open eyes allowing these institutions to cater the need of education by stopgap arrangement by engaging visiting professor. If this detail of number of colleges which are opened up, their vacancies which are available and how many colleges are being run through visiting professors would make the things clear about pattern of exploitation which has been adopted by the State Authority which is nothing but a fraud on the recruitment process. It has further been submitted that though this information have been demanded through even provisions of Right to Information Act, 2005, so far the same has not been provided in an autocratic manner. It has been further submitted that requirement of workload is not depending upon strength of student but whenever any college is coming forward to impart education is also always affiliated by respective university and the university is prescribing a syllabus as to what manner the teaching is to be undertaken and every affiliated colleges are under obligation to Page 11 of 79 C/SCA/9458/2017 CAV JUDGMENT strictly adhered to syllabus patten which is being prescribed by respective university so workload is not depending upon in any case on number of students which may be available. It has been submitted that even if two students are studying in the entire institute then also syllabus would be subjectwise which has been prescribed by the respective university is to be adhered to by the college. So lame reason which has been assigned by the authority about the workload is out of place for consideration in the present proceedings. Learned senior advocate has further contended that by nongranting of protection to the present petitioner would tantamount to allow the authority and the colleges to undertake study through visiting professors and the visiting professors would come and go at every frequent interval in absence of any check or control over them, there may not be any continuity of such kind of professor which would not be in the interest of students at large and as such instead of allowing educational institute to run by visiting professor these petitioners may be allowed to continue which are discharging their functioning since about number of years. It has further been contended by learned advocate that these petitioners are not backdoor entrant in any manner. Pursuant to the advertisement which has been published by private college the same pattern of recruitment is undertaken by the college vide its selection committee and after examining the relevant educational and experience criteria and as such in no circumstances these petitioners can be termed as backdoor entrant in any form.
3.1 Learned senior advocate has further submitted that these order of appointment may be branded as contractual employment Page 12 of 79 C/SCA/9458/2017 CAV JUDGMENT but this kind of contractual employment over the statutory posts of such character cannot be allowed to be filled in dehors the statutory norms. On the contrary, by looking at the appointment order reflecting on page:47, dated 24.07.2015, the learned senior advocate has vehemently contended that these are the posts of Assistant Professor / Lecturers are statutory in character and are to be filled in by the statutory norms. The appointment order has used terminology of such which in no circumstance possible to be digested that such act is permissible under any statutory rules as to how the authority has changed nomenclature post as 'Vyakhyata Sahayak' no such post exists in the university / institute nor known to any of the college authorities. Instead of nomenclature 'Vyakhyata Sahayak' as Professor or Lecturer or Assistant Professor, as the case may be. This 'Vyakhyata Sahayak' how it has come is unforeseen from any corners of present stand of the authority. It has been further submitted that these petitioners are tobe shunted off just to accommodate respective recruited persons who are appointed on recommendation of Gujarat Public Service Commission and are to perform the very same duty to undertake very same responsibility of imparting education and are in no way differentiating in discharge of their services. So when these petitioners are to be replaced or substituted by very same kind of Professor for very same duty, just because the petitioners are not through recommendation of Public Service Commission cannot be discontinued or allowed to be substituted by another sets of similarly situated employees. Only with a difference that they were selected through mechanism of Public Service Commission.
Page 13 of 79 C/SCA/9458/2017 CAV JUDGMENT3.2 Mr.Oza, learned senior advocate has further submitted that here is the case in which though there is specific term contained in the appointment order that after the lapse of 11 months they are to be discontinued or after lapse of academic session but these petitioners have been continued over the number of years and the last contract was in the year 2015 so despite aforesaid term, which is contained in their appointment, the authority have chosen to continue their service contract since the work is of paranial in nature and on the other side State Authority has miserably failed in recognising and recruiting on the post which was otherwise to be undertaken on the regular basis and, therefore, this engagement of the petitioner may not be termed as a contract of simplicitor services. This is nothing but a sheer contract of slavering and in one of the decision Justice V.R.Krishna Aiyer has observed in case of Baldev Raj Chadha vs. Union of India reported in (1981) 1 SLJ 118 that this tantamount to be a contract between lion and lamb.
3.3 Mr.Oza, learned senior advocate has further contended that by virtue of mandate of university grant commission which is to be observed by every authority normally colleges in which the subject of Hindi is treated as compulsory and that can be seen from the various documents contained in the present petition and as such so far as Hindi subject is concerned every institute is bound to accommodate Professor on this subject and it is obligatory on the part of institute to offer employment on this subject no college can deviate from such mandate of university grant commission. Learned senior advocate has further submitted that there are Page 14 of 79 C/SCA/9458/2017 CAV JUDGMENT practically two modes of recruitment process and the present petitioners are through one alternative mode of recruitment which is permissible in law and, therefore, at no fault on their part, their services should be put to an end. Learned senior advocate after vehemently contended has made an alternative submission that if regularisation of these petitioners is not feasible then in that case since petitioners discharging their services since number of years instead of terminating the services they may be accommodated in the grantinaid colleges of the State Authority. Since inaction on the part of the State Authority has resulted into plight of present petitioner it would be obligatory on the part of authority to accommodate these petitioners in grantinaid colleges and in past such exercise is undertaken at 23 times to which learned advocate has requested the Court to consider by issuing appropriate direction. It has been further submitted that in the year 2017, the Apex Court has observed and deprecated the practice of such kind of employment and heart burning of ground reality is very much reflecting in observations of Apex Court and the learned senior advocate has relied upon and insisted to consider observations made in para:57 and 58 of the decision in the case of State of Punjab and others vs. Jagjit Singh reported in (2017) 1 SCC
148. Of course, the main issue in that case was with regard to an equal pay for equal work but the observations contained therein are very relevant to the present issue as well. Hence, after considering the same, learned advocate has insisted to consider the request of present petitioner. On the contrary, has submitted that in addition of regularisation treatment which has to be made even present petitioners from the day of their employment are entitled for 'equal Page 15 of 79 C/SCA/9458/2017 CAV JUDGMENT pay for equal work' corresponding to pay which has been mentioned in the appointment orders of ensuing candidates who are awaiting for posting since these sets of employees who are recruited are very much discharging similar function on the similar post by replacing the petitioners in that case the same payscale which is mentioned deserves to be granted right from the date of appointment till the date and, therefore in additional to the relief of regularsiation learned advocate has insisted that the salary aspects deserve consideration by issuing appropriate direction as the petitioners are entitled legitimately to have prescribed payscale as has been made available to the newly recruited persons.
3.4 Learned senior advocate has then again reiterated that work is of paranial in nature, present petitioners are meritorious and fully eligible and qualified as by now has gained relevant experience as well and, therefore, since posts are sanctioned available with the institution on which petitioners are at present working, the relief of regularisation deserves to be considered. For that purpose, several decisions have been pressed into service to which a reference is to be made in later part of judgment. Learned senior advocate has further submitted that after these many years, these petitioners cannot be sent home simply because there is complete inaction on the part of the respondent authority in not observing the relevant requirement of process of recruitment. Hence, the relief prayed for in the petition deserves to be granted.
4. To meet with the stand taken by Mr.Oza, learned advocate appearing for the petitioners in common, Ms.Sangita Vishen, Page 16 of 79 C/SCA/9458/2017 CAV JUDGMENT learned Assistant Government Pleader has vehemently opposed the petition. Firstly, learned Assistant Government Pleader has drawn the attention of this Court to the relief clause which has been incorporated in the petition and then by referring to certain relevant averments which are made on oath has contended that these petitions are to be dismissed only on the ground of suppression of material facts. To justify this contention, learned Assistant Government Pleader has read over averments which are made on oath from paras:3.3 onwards and has contended that earlier round of litigation is completely suppressed while securing the interim relief ex parte from the Court in the present proceedings. It has been contended that almost all petitioners are in majority despite their service contract tenure having been lapsed are continued under the order of the Court since the ex parte order was obtained at the relevant point of time. On the contrary, not only earlier round of litigation is suppressed by these very petitioners who were majority of them party to the earlier round of litigation but the relevance of Special Civil Application No.8852 of 2015 which has been referred to for persuading the Court to grant interim relief is also completely suppressed and misleading and, therefore, on this ground alone no equitable jurisdiction be exercised in favour of the petitioners. By referring to page:233 of the petition compilation, a reference is made to decision delivered in the case of Special Civil Application No.8588 of 2015 wherein every aspect has been dealt with by the Court and has observed in no uncertain terms that these petitioners are not challenging the subsequent recruitment process and are seeking direction till Page 17 of 79 C/SCA/9458/2017 CAV JUDGMENT regularly selected candidates come from GPSC by making a reference to some of observations which are made from page:262 to 264 and has then drawn attention of this Court in para:5.1 reflecting at page:287 of a decision of the coordinate Bench of this Court in which petitioners were very much party to the same, has contended that these petitioners are bound to abide by the observations which have been made by coordinate Bench in earlier round of litigation. Learned Assistant Government Pleader has then drawn attention to a detailed chart indicating on page:289 and 290 that the petitioners, in first round of litigation as well as in second round of litigation and by enlisting them in a chart has vehemently contended that the present petitioners have clearly suppressed this fact of earlier litigation and this is nothing but a clear example of abuse of process of law and on this ground alone, petition deserves to be dismissed with heavy costs.
4.1 Learned Assistant Government Pleader has further submitted that the petitioners are seeking the writ of mandamus and in absence of any legal right or any substantive right no such writ is possible to be issued in favour of petitioner that that too at the instance of the petitioner. Whatever so called right which is claimed by the petitioner is generated due to two Government Resolutions i.e. dated 17.06.2009 and 29.06.2015 reflecting on page:219 onwards and what has been indicated in these resolutions is that Government on account of exigency has framed policy of ad hoc arrangement till regularly selected candidates come and undisputedly there is no other rule nor any Government Resolution which has given right of giving such kind of employment as has Page 18 of 79 C/SCA/9458/2017 CAV JUDGMENT been canvassed by the petitioner. Undisputedly, these Government Resolutions are not under challenge anywhere in the present proceedings and by virtue of clause contained in the said Government Resolution, the petitioners have restricted their socalled right just for a specific period and in no circumstance after securing such employment they have any legitimate expectation under the law. It is quite clear from the terms of appointment and the appointment itself that this appointment of the petitioner is out of aforesaid Government resolutions only and so long as Government Resolutions are valid not disturbed in any litigation. Such policy is required to be adhered to not only by the authority but upon the petitioner as well. By relying upon some of the terms of the contract of this employment, it has been stated that these appointments are not emerging any legal right in favour of them. As a result of this, in absence of any legal right and in absence of any corresponding obligation on the State, writ of mandamus may not be issued. Learned Assistant Government Pleader has further submitted that on the contrary, after streamlining, entire recruitment process in respect of educational institute, recruitment rules have been framed which are reflecting on page:219 dated 19.03.1991 and none of these provisions of the Rules are allowing any mode of recruitment in an alternative measure and in fact these rules are prescribing only mode of recruitment and undisputedly present petitioners are not out of these rules. As a result of this, petitioners' appointment cannot be said to be lawful in any manner. It has further been contended that even there is no scope for claiming relief of any regularisation as there is no provision at all made in these Rules of regularisation of service of Page 19 of 79 C/SCA/9458/2017 CAV JUDGMENT any employee. Hence, in absence of any statutory provisions, there is hardly any justification for petitioner to claim this relief as matter of right. In fact, learned Assistant Government Pleader has submitted that in absence of any statutory rules, the reliefs de hors the rules may not be granted in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. It has further been contended vehemently that this kind of issue has been cropped up in past before this Court and the Division Bench of this Court in Letters Patent Appeal has, in categorical terms, considered every submissions which have been canvassed by the learned advocate as in the present proceedings as well and by referring such kind of binding decisions, the Division Bench has opined that there is no legal right at all in favour of the petitioner to seek any relief. Learned Assistant Government Pleader has submitted that the Division Bench judgment was a subject matter of examination by Apex Court and the SLP has also been dismissed by the Apex Court which order is reflecting at page:405 of the petition compilation. Resultant effect is that Division Bench judgment holds the field even till today which is binding. Considering this decision also when the issue is squarely covered, there is hardly any relief possible to be granted in favour of petitioner and it has further been contended by learned Assistant Government Pleader that it is absolutely incorrect to say that the State Authority has not undertaken steps of recruitment in past. In fact, attempt of such has been visualised by the Court in earlier round of litigation where only in the year 201112, 201213, 201314, 201415, 201516 such kind of step of recruitment was initiated and it is but for this kind of petitioners who are seeking relief by suppressing the Page 20 of 79 C/SCA/9458/2017 CAV JUDGMENT material fact that entire regular process of recruitment may get affected. Resultantly, no case is made out in any form. Hence, petition being deovid of merits deserves to be dismissed.
4.2 Learned Assistant Government Pleader has further relied upon the decision in case of Secretary, State of Karnataka vs. Uma Devi (3) and others reported in (2006) 4 SCC 1 as well as the decision delivered by this Court in Special Civil Application No.6786 of 2009 dated 08.07.2009 and then has submitted that the petitions being devoid of merits and based upon abuse of process of law deserves to be dismissed with exemplary costs.
4.3 Learned Assistant Government Pleader has further submitted that looking to the propositions of law which has been laid down by the aforesaid decision of the Apex Court, by referring to para:46 to 47, a contention is raised that no case is made out by the petitioner. Learned Assistant Government Pleader has further sumed up the submissions by briefly reiterating that there is no legal right in favour of the petitioner. Whatever limited right which was available was flowing from the aforesaid two Government Resolutions and beyond that there is no other right available in favour of petitioner. It has further been submitted that from day one their contract of service was for a limited purpose of 11 months which was not to be extended but it is only on account of interim orders, petitioners are continued to discharge the duties. It has further been submitted that terms of the appointment are very much clear for this literate class of the petitioners and the arguments which have been advanced to justify the claim in the Page 21 of 79 C/SCA/9458/2017 CAV JUDGMENT petition has been completely answered in all respect by two aforesaid decisions i.e. one by the Division Bench of this Court and another by the Apex Court. It has further been contended that tenure of the petitioner was long back over and it is but for litigation being pending the petitioners are continued. The entire case which has been put up by the petitioner in present proceedings is based upon suppression of material facts. So much so that earlier round of litigation has not been disclosed before the Court when interim relief was obtained nor even during the course of hearing of Civil Application which has been decided by the Court at that time also it is not the petitioners who pointed out the factum of earlier litigation. Hence, this conduct itself is disentitling the petitioner from seeking any equitable relief. By referring to paras:47 and 50 of Uma Devi's case (supra) a submission is made that there cannot be any legitimate expectation to be claimed by the petitioners in any form and surprisingly though petitioners having ample opportunity to appear in the examination and to compete with other meritorious candidates, instead the petitioners have continued to litigate before this Court on false premise and according to learned Assistant Government Pleader a fraud is practiced upon the Court in suppressing the material facts.
4.4 Learned Assistant Government Pleader has further submitted that there are so many petitioners who were party to the present petition did appear in the examination and some of them who have cleared examination have withdrawn the petition whereas this lot of petitioners are the petitioners who either have chosen not to avail the opportunity to appear in the examination or have Page 22 of 79 C/SCA/9458/2017 CAV JUDGMENT miserably failed after appearing. Hence, this attempt on the part of the petitioner to retain in the litigation is nothing but depriving other eligible and meritorious candidates from posting.
4.5 It has further been submitted that much attention is tried to be diverted by canvassing that the newly opened up colleges in the recent past are allowed to run purely on Visiting Professors and the vacancies in large number available, to these details on page:445 of the affidavit submitted and a tabular chart is given and it is said that this submission is far from the truth. It may be that some of the colleges might not have few professors on contract basis but that fact would not emerge any right in favour of the petitioners. On the contrary, on regular interval requisitions are being sent and that detail is also provided in para:5 of page:408. Hence, it is ill founded in the mouth of petitioner to contend that there is no regular requisition. On the contrary, in the last recent advertisement, there are 351 posts have been pronounced for which the recruitment process is on. It is these petitioners who have made an attempt to thwart the proceedings simply with a view to continue under the protection of the Court. So far as various submissions which have been made by learned counsel appearing for the petitioners is concerned, Ms.Vishen, learned Assistant Government Pleader has relied upon following decisions and has contended that neither any legal right is available in favour of the petitioner nor any legitimate expectation can be claimed in any form. Such decisions are:
(i) (2008) 10 SCC 1; Official Liquidator vs. Page 23 of 79 C/SCA/9458/2017 CAV JUDGMENT Dayanand & Ors.;
(ii) (2016) 8 SCC 293; State of Maharashtra vs. Anita & Ors.;
(iii) (2011) 7 SCC 397; Union of India vs. Arulmozhi Iniarasu & Ors.;
and by referring to this has further contended that the petitioner neither can claim any regularisation nor can claim any benefit of 'equal pay for equal work'. This principle cannot be applied to the facts of the present case and in any case there is no significant pleadings with regard to such issue of equal pay for equal work. The similarity will have to be specifically pleaded and in absence thereof it is not proper on the part of the petitioner to agitate this issue. Ms.Vishen, learned Assistant Government Pleader has further submitted that there were large number of posts which are published for filling up and details whereof are given. In the year 2011, there was an advertisement, in the year 2016 as well as in the year 2018 there were advertisement as well. Even if that fact is taken into consideration, it is these petitioners who have been recently just prior to three years had been recruited purely de hors the statutory requirement but then a major period of their continuance is under the order of the Court since the same was obtained by suppressing material fact and as such even remotely there is hardly any legitimate right in favour of the petitioner to seek a writ of mandamus. Therefore, this remedy of extra ordinary jurisdiction is not amenable to the petitioners. It has further been contended that at one point of time learned counsel appearing for the petitioners has submitted that these petitioners can be Page 24 of 79 C/SCA/9458/2017 CAV JUDGMENT accommodated elsewhere in the private aided colleges as has been done somewhere in past but the petitioners are not entitled for the simple reason that as many as six opportunities were available to participate in process of selection. It is these petitioners who have chosen not to avail such benefit so question of absorption does not arise simply because few years around 34 years have passed on. The ratio laid down by Uma Devi's case is completely ousting the belief of the petitioners and hence petition deserves to be dismissed.
4.6 Learned Assistant Government Pleader has submitted that on the contrary this is a fit case in which exemplary cost should be awarded not only on the ground of suppression of material fact but on account of the fact that meritorious candidates who have been appointed are deprived of their respective posting which has resulted into their loss of seniority, loss of statutory salary and further the petitioners though have no right at all had taken undue benefit under the orders of the Court and as such while dismissing the petition some stringent order be passed as there appears to be abuse of process of law. With these summing up, learned Assistant Government Pleader has requested the Court not to grant any relief in favour of the petitioner.
4.7 To support the submission made by learned Assistant Government Pleader, Mr.Joshi, learned advocate appearing on behalf of GPSC has submitted that at a regular interval posts have been advertised and petitioners have chosen not to compete with other eligible candidates and further pursuant to recent Page 25 of 79 C/SCA/9458/2017 CAV JUDGMENT advertisement of October, 2018, the recruitment process is on and it is these petitioners who have chosen not to participate or after appearing some of them have miserably failed in securing any fruitful result and has submitted that petition deserves to be dismissed.
4.8 Mr.S.N.Shelat, learned senior advocate appearing on behalf of applicants, who have been appointed pursuant to the lawful recruited process, and upon advice of GPSC, has vehemently submitted that the applicants deserves to be joined in the present petition as are directly affected with the outcome of this. Hence, with the broad consensus, the applicants are allowed to be joined in the present proceedings by granting civil application for being joined as party. Upon such granting of liberty to join, learned senior advocate has offered his submissions and has, first of all, pointed out averments which are made by the petitioners in the petition. By referring to subpara of para:6 in the list of events has submitted that it is the averment of the original petitioner itself is binding the petitioners which in no uncertain terms indicated that all the petitioners are aware about the fact that their tenure is for 11 months only and if prayed that they may be continued till regularly selected candidates come. Meaning thereby, the petitioners were conscious about their tenure of service from the beginning. A further attention is drawn to para:7 in which it has been asserted by these very petitioners that they are working since about three years only and major period if to be looked into is under the order of the Court and, therefore, ratio laid down by Uma Devi's case is completely out of place which could not have been relied upon by Page 26 of 79 C/SCA/9458/2017 CAV JUDGMENT the petitioners since even 10 years tenure is not completed. A further attention is drawn to the averment made on oath in para:33 of the petition and by referring to subpara an attention is drawn that petitioners were conscious about the fact that as and when regular selected candidates would come they will have to go and it has further been pointed out that earlier round of litigation of these very petitioners is completely suppressed from the present proceedings. It has further been contended that what has been mainly prayed in substance is seeking regularisation of their services. By seeking interim relief the newly joined affected persons have been deprived of since about one year from legitimate right of their being posted. It is but for the interim relief uptil now even posting must have been ordered. Hence, immense prejudice is caused to these persons by the conduct of the petitioners. A reference is made to some of the dates is that advertisement which has been published pursuant to which on 14.05.2018 examination have been conducted on 24.05.2018, selection cum merit list came to be published on 04.06.2018, GPSC has recommended the names of his client for appointments and then on 13.06.2018 all these candidates have been actually appointed for their respective subject in the payscale of Rs.15600 onwards. If the plight of the presently lawful recruited persons to be compared with the petitioners who have absolutely no legal right, there appears to be an immense prejudice. Hence, the petition deserves to be dismissed with immediate effect so that posting can be effected.
4.9 Additionally, learned senior counsel has submitted that for granting relief of regularisation there must be some lawful right in Page 27 of 79 C/SCA/9458/2017 CAV JUDGMENT favour of petitioners. The regularisation is not possible to be directed in vacuum unless law permits and here the case in which none of the petitioners are able to point out any statutory force by virtue of which such regularisation can be claimed. It has further been contended that the persons who are coming in the employment by virtue of contract, they have got contractual right and nothing beyond and in absence of any legal right or in absence of any violation of fundamental right, it is not open for them to invoke extra ordinary jurisdiction under Article 226 of the Constitution of India. The learned senior counsel has submitted that almost every point is covered by learned Assistant Government Pleader at length and hence for the purpose of concluding his submission, learned senior advocate has submitted following decisions for consideration of this Court.
(i) 2003 (1) GLH 312, K.D.Vohra vs. Kamleshbhai Gobarbhai Patel para:17,
(ii) (2007) 1 SCC 407, Asstt. Commissioner, Anti evasion Commercial Taxes, Bharatpur vs. Amtek India Ltd. paras:37 to 41, 49
(iii) 2018 (0) AIJEL - 61595; Yogesh Mahajan vs. R.C.Deka, Director, All India Institute of Medical Sciences; Para:6 and
(iv) the decision delivered in Civil Appeal No.2356 of 2018, Upendra Singh vs. State of Bihar and ors.
and by referring to aforesaid decision a contention is raised that petitioners have not made out any case for seeking such kind Page 28 of 79 C/SCA/9458/2017 CAV JUDGMENT of relief. In fact, by referring to para:53, learned senior counsel has submitted that 10 years period which has been prescribed also must be a period without intervention of the Court and then only in that case regularisation may be considered. But here is a case in which these petitioners immediately upon the verge of completion of their tenure of 11 months by suppressing material fact obtained interim relief and have been continued presently with no legal right. Hence, in any case, the observations made by Apex Court in case of Uma Devi (supra) referred to in para:53 is not in a position to come in assistance to the petitioners. Learned senior counsel has submitted that in this peculiar background of fact, undue sympathy is not possible to be extended so far as decision of Division Bench of this Court headed by Honourable Mr.Justice Anant S. Dave rendered in Letters Patent Appeal No.189 of 2018 in Special Civil Application No.8339 of 2016 dated 20.02.2018, wherein some observations regarding contract between lion and lamb is referred to and observed but in that case, there was no statutory rules available. Hence, in that scenario, some observations have been made which cannot be equated in the present set of circumstance and by referring to aforesaid submissions learned senior counsel has submitted that petition deserves to be dismissed so as to see that regularly selected and appointed persons can have their appropriate posting to the post in question.
5. After having a stand taken by learned Assistant Government Pleader and learned senior advocate as a part of rejoinder, Mr.Oza, learned senior advocate appearing on behalf of original petitioner has reiterated few of the decisions which have been cited by him on Page 29 of 79 C/SCA/9458/2017 CAV JUDGMENT earlier point of time and additionally have further relied upon following decisions:
(i) (2016) 8 SCC 293; State of Maharashtra vs. Anita & Ors.;
(ii) a decision dated 27.01.2017 passed by coordinate Bench in Civil Application No.12265 of 2015 and
(iii) (2018) 13 SCC 432, Sheo Narain Nagar & Ors. vs. State of Uttar Pradesh and Ors.,para:8.
and has vehemently reiterated that apart from the prayer of regularisation deserves to be granted even there is no escape for the authority not to give adequate appropriate salary to the petitioner as per the scale with which newly recruited persons have been appointed.
5.1 Mr.Oza, learned senior advocate has further submitted that there are several decisions in which such kind of exploitative pattern of engaging employees on contractual basis has been seriously deprecated and in the past also as many as around 600 employees appointed through nonPublic Service Commission Selection have been regularised and even in the year 20072009 the State has regularised this kind of candidates and as such since work is of perennial in nature, these petitioners have accumulated adequate experience and are holding requisite qualification simply because they are not appointed through recruitment process of GPSC may not be allowed to be thrown in the jaws of fear as there is legitimate expectations in favour of petitioner which cannot be Page 30 of 79 C/SCA/9458/2017 CAV JUDGMENT ignored by the authority. Learned senior advocate has thereafter emphasized and reiterated the aforesaid submissions which have been made hereinbefore and ultimately requested that there is no objection on the part of the petitioners to allow newly appointed but at the same time the services of the petitioner may not be allowed to be put an end which may create irreversible situation for them. Accordingly, reliefs prayed for deserve to be granted. Ultimately, learned senior advocate has, after producing decision as referred to above, requested the Court to allow the petitions with costs.
5.2 So far submissions with regard to nondiscloser of material facts is concerned not that much clarified but has submitted that since at the relevant point of time, the facts which were not placed on oath are not to be treated as suppression of material fact and the said issue has not been much emphatically clarified by the learned senior advocate and ultimately has requested the Court to allow the petition.
6. In surrejoinder to this, Ms.Vishen, learned Assistant Government Pleader has emphatically resisted the submissions of learned senior advocate and has reiterated that judgments which are cited are also not possible to be accepted in the background of peculiar facts of this case. On the contrary, an attempt is made to cite an overruled decision before this Court which is rendered in the case of U.P.State Electricity Board vs. Pooran Chandra Pandey and others reported in (2007) 11 SCC 92. Now that judgment has been overruled in a case decided by Apex Court in Page 31 of 79 C/SCA/9458/2017 CAV JUDGMENT case of Official Liquidator vs. Dayananda reported in (2008) 10 SCC 1 and, therefore, a serious attempt is made not only to suppress material fact but to cite an overruled decision to dodge the litigation. Learned Assistant Government Pleader has further submitted that all those judgments which have been cited in which there is long length of service of the concerned petitioners practically around more than 20 years whereas here in the instant case, none of the petitioners have even completed more number of years. So on that count only, the ratio laid down is not applicable. However, be that as it may, the consultation of GPSC is treated as directory as held in case of Jatinder Kumar vs. State of Punjab reported in AIR 1984 SC 1850 and here in the instant case since the statutory procedure is not observed, no legal right emerges in favour of petitioner. Learned Assistant Government Pleader has submitted that regular recruitment process is being undertaken and recently the post have been relinquished and the process is on for filling up 280 posts out of 351 vacant posts. In fact, for the petitioners this opportunity was available to contest and participate in the recruitment process by competing with other eligible candidates but these petitioners have not availed such opportunity and as such no equitable reliefs be made available. On the contrary, these petitioners are under the pretext of interim order of this Court, though long back their tenure of contract is elapsed. Resultantly, this being a contractual employment, the petitioners have very limited role which cannot be have as a matter or right.
7. To this submission of citing overruled decision, learned senior advocate Mr.Oza has submitted that even recently in a decision Page 32 of 79 C/SCA/9458/2017 CAV JUDGMENT delivered by Justice Chelemeshwar, case has been examined and the Apex Court, in case of Official Liquidator vs. Dayanand & Ors. reported in (2008) 10 SCC 1, has waterdowned the ratio of Puranchandra's case [(2007) 11 SCC 92], and, therefore, waterdowning the ratio is one thing and consideration is altogether different thing and, therefore, learned Assistant Government Pleader cannot accused of citing overruled decision of this Court. However, be that as it may, learned senior advocate has left it to the discretion of the Court and reiterated the request for grant of relief prayed for in the petition.
8. Having heard learned advocates appearing for the parties, few circumstances which are apparently reflecting from the record, are not possible to be ignored by this Court before arriving at ultimate conclusion.
8.1 First of all, this petition has been filed on 02.05.2017 and based upon the averments, which are made on oath, the Court on 05.05.2017 was pleased to issue notice and granted interim relief in terms of para:6(f) and 6(g). So this ex parte interim reliefs appear to have been granted at the unilateral version on oath of the petitioners. Now, in the context of averments, a serious issue has been raised by learned advocate for the respondent that not only the averments made on oath are misleading but there appears tobe a suppression of material facts and nondiscloser of earlier proceedings to which very petitioners were party and, therefore, the said order and the entertainment of petitions based upon the abuse of process by petitioners. Now in this context while Page 33 of 79 C/SCA/9458/2017 CAV JUDGMENT exercising equitable jurisdiction, the Court, upon examination of the material of this lead petition, found that a specific averment has been made that petitioners are apprehending their termination since during the term of contract a fresh advertisement issued for recruitment of Professors. At para:3.3 onwards, these averments are reflecting. Now if this is to be compared with the chart, which has been provided, and in relation to the appointment order [which is reflecting on page:47] one of such appointment order reflects it is dated 24.07.2015.
8.2 A bare perusal of contents of this appointment order which is an appointment order of petitioner no.2 indicates that his appointment is for 11 months for academic year 201516 or till the end of second semester or till regularly selected candidates from GPSC, whichever is earlier and it is made clear that this appointment is strictly as per the contractual basis in the subject of History. In condition no.(1), it has been mentioned that in the aforesaid event, whichever is earlier, the services would stand automatically discontinued. In condition no.(7), it has been stipulated that no other financial benefits will be amenable to the petitioners and based upon these terms, the petitioner came to be appointed. It appears that tenure of 11 months is already over and simultaneously regularly recruited candidates who are appointed are waiting for posting. It is but for this interim order, tenure appears to have been continued and as such during the subsistence of contract period advertisement is issued for recruitment appears to be not sounding any confidence. However, apart from this, one material aspect which is not possible tobe unnoticed by this Court is Page 34 of 79 C/SCA/9458/2017 CAV JUDGMENT that these very petitioners majority of them have approached this Court earlier by way of group of petitions headed by Special Civil Application No.4524 of 2016 in which after hearing at length, the Court clearly concluded and recorded the restricted claim of petitioners vide order dated 23.11.2016 after hearing learned advocates in the said group to which present petitioners were party. A decision is taken which is clearly not visible in any corner of present petition and, therefore, material circumstance is withheld by the petitioners on oath while obtaining notice and interim relief from the Court. Since this was tobe examined at length, the Court, while dealing with vacating of interim relief issue, has fixed up the matter peremptorily upon request of learned advocates since regularly selected candidates are awaiting their posting.
8.3 Now relevant observations, which are material to examine the stand of the petitioner on this case, of the decision rendered by this Court (Coram:Honourable Ms Justice Sonia Gokani) in Special Civil Application No.4524 of 2016 and allied matters, dated 23.11.2016, more particularly paras:5.1 and 6, since are relevant reproduced hereinafter.
"5.1 It is also to be noted that, pursuant to the directions issued to the respondent authorities, they have sent the requisition to the GPSC for appointment of persons on these posts on a regular basis. Such advertisement has already been issued in the month of November, and process is on. The petitioners in no manner challenges the subsequent advertisement. It is being clarified that this protection is in no manner affect that process which is continued, nor would this order grant any Page 35 of 79 C/SCA/9458/2017 CAV JUDGMENT right to the petitioner to continue on the post once candidates selected by the process conducted by the GPSC are available. This would also not allow them to claim any right of continuity.
6. With the forgoing discussion, all these petitions are allowed. The services of the present petitioners shall not be terminated by the repsondent authorities replacing them with another set of adhoc employees, till the regularly selected candidates through the GPSC are available."
The only protection which has been given to the petitioners, who were in earlier round of litigation, were protected from termination and not to be substituted or replaced by another sets of adhoc employee and the process of advertisement has been declared as not challenged and, therefore, very limited right was granted at that point of time with an express clarification that this protection would also not allow to them to claim any right of continuity.
8.4 Undisputedly not only that this material fact of earlier round of litigation by these very petitioners is suppressed from present proceedings but this order granting limited right only is accepted by these very petitioners and have chosen not to challenge said order and, therefore, this observation has attained finality.
8.4 The Court, under this circumstances, is of the opinion that this is one of the most significant circumstance while exercising extra ordinary jurisdiction which is equitable in nature. The law on the issue is amply clear that if conduct on the part of the petitioner is questionable, this extra ordinary jurisdiction may not be exercised even though there is some case on merits. The Court Page 36 of 79 C/SCA/9458/2017 CAV JUDGMENT would like to emphasis this proposition by quoting following observations made in decision rendered in the case of Patel Kaushikbhai Bhogilal vs. Zapli Khadni Dana Nakhwani, Chaklani Parabadi Trust, dated 04.02.1995, reported in 1996 (1) GCD 369 Guj., more particularly paras:22 to 24 which are since relevant are reproduced herein after.
"[22] The Apex Court in the case of Ramjas Foundation v. Union of India, 1993 Supp (2) SCC 20, in para No.7 observed;
"It is well settled that a person invoking an equitable extraordinary jurisdiction of the court under Article 226 of the Constitution is required to come with clean hands and should not conceal material facts. The objection regarding not affording an opportunity of personal hearing in respect of objections filed under Section 5A of the Act was one of the main planks of the grounds raised in the writ petition as well as in the special leave petition filed before this Court and ought we know if such ground had not been taken this Court would have entertained this appeal or not".
[23] In the light of the law enunciated above I have now to see whether the petitioners have come to this Court with upright and bona fide conduct and have given full and correct disclosure of material facts. Affidavit in reply has been filed in this case on behalf of the respondent No.5 and the petitioners have not filed any rejoinder affidavit controverting the facts stated therein. The petitioners deliberately concealed the facts;
(i) auction notice i.e. date, time and place of auction of lease hold rights in the land in question published in Newspapers "Sandesh" dated 22592. (ii) Public auction was accordingly held on 2951992, wherein Page 37 of 79 C/SCA/9458/2017 CAV JUDGMENT including the petitioner No.2 many bidders participated. (iii) In public auction the petitioner No.2 had offered annual rent of Rs.12001.00, less than the highest bid. (iv) possession of the land in question was given to respondent No.4. (v) the respondent No.4 put up construction on the land in dispute. (vi) the petitioner No.1 had not participated in the auction of the land. (vii) the petitioner No.1 has not disclosed why and how he joined the petitioner No.2 in this petition. (viii) the petitioners have not stated how they are related.
[24] The petitioners have not come up before this Court with clean hands. The Charity Commissioner sanction lease in favour of the respondent No.4 vide order dated 255 1992 and the petitioners have not challenged the order either before Charity Commissioner or before this Court. The petitioners permitted or allowed the respondent No.4 to proceed with construction on the land in question. The petitioner No.1 has given offer of Rs. 1 lac annual rent by an application dated 6101993 i.e. more than one year of the order dated 2581992 and one year and about 5 months after auction of lease hold rights. The petitioner No.2 has cancelled another fact the date of his joining as the secretary of the trust. The petitioners have made a false statement that the petitioner No.2 came to know about the order dated 25892 after he joined the trust as Secretary. The petitioner No.2, as stated earlier was one of the bidder in the auction. He knows about all aspect from the date of auction. From the facts which are on record of this case I am satisfied that the petitioners have not made full and correct disclosure of all material facts in this case. They on the contrary suppressed material facts and thereby obtained an order of issue of notice as well as ex parte interim stay. The petitioner disentitle themselves of any relief on merits. Present is clearly a case where the petitioners have abused the process of this Court. The petitioners have not approached to this Court with clean hands. In these facts and circumstances of the present case, an exemplary cost has to be awarded to the respondent No.4."
Page 38 of 79 C/SCA/9458/2017 CAV JUDGMENT8.5 The Court with pain observes that to secure equitable relief may be of an urgent nature cannot allow the petitioners to abuse the process by concealing material fact and to arrive at this conclusion the Court has an advantage of entire list produced by the opponents which is reflecting on page:289 of the petition compilation which is the list of petitions filed by these very petitioners which has not been disclosed in the present proceedings. It is only unearth and revealed from the affidavitin reply which has been filed by the Respondent No.2 authority. Hence, the Court is of the opinion that this is one of the vital considerations not to be ignored while deciding the present case on hand.
8.6 Now apart from this, undisputedly, these posts of Assistant Professors in Government Arts, Science and Commerce colleges are to be filled in during the rules which have got statutory effect. The rules which are framed in exercise of proviso of Article 309 of the Constitution of India and in supersession of the rules made in this behalf the rules have been put by the State Authority by virtue of Notification dated 19.03.2011 which is reflecting on page:214 of the petition compilation. A reading of this rules has clearly stipulated the eligibility criteria, process of recruitment and undisputedly the petitioners are not appointed through this process and mode of recruitment which is prescribed in this Notification. This has got a statutory effect. Hence, the appointment of the petitioner is not backed by any statutory force as there is a non compliance of this Notification and it is not the case of the Page 39 of 79 C/SCA/9458/2017 CAV JUDGMENT petitioners as well that they have been appointed even on contract basis through this mode of recruitment. Hence, in absence of any statutory force behind their appointment no legal right either to continue or to renewal of contract or to regularise is emerging in favour of petitioner. Hence, in absence of any legal right to issue a writ of mandamus is a question for consideration before this Court and the Court has an advantage of one of the decisions of Apex Court in case of The Rajasthan State Industrial Development and Investment Corporation vs. Diamond and Gem Development Corporation reported in AIR 2013 SC 1241 that unless and until any legal right is breached, no writ of mandamus can be issued.
8.7 Yet another circumstance by which in overall submission the grievance is raised that as to how the post of Assistant Professor is differently worded and nomenclatured but for that purpose, there is a specific resolution passed by the State Authority dated 17.06.2009 which is not under challenge and no pleadings are reflecting at all in the entire petition and, therefore, this lame submission dehors the pleadings is not possible to be considered and accepted. Accordingly, appointment of the petitioners have no support of any statutory force. Additionally, before considering any other issues, even the principle of judicial discipline still holds the field in its full vigour and no Court should ignore such well recognised principles. Now, in furtherance of this, substantially all these contentions which have been raised by learned counsel appearing on behalf of the petitioners have been dealt with in extenso by the Division Bench of this Court and such binding Page 40 of 79 C/SCA/9458/2017 CAV JUDGMENT decision is still holding the field. Hence, so long as such view is still holding the field, this Court is unable to ignore rather bound to observe the judicial discipline.
8.8 The decision delivered by the Division Bench of this Court in Letters Patent Appeal No.485 of 2002 delivered on 11.12.2002 in a group of petitions and after hearing at length practically every issues have been examined and dealt with. To give a rough idea about such detailed discussion which took place after consideration of all the relevant decisions, the Division Bench has not only dealt with the issue of consultation and its obligation in the context of Article 320(3) of the Constitution of India with Public Service Commission but has also considered the contention with regard to effect of violation of statutory rules. After examining at length, the Court has also dealt with the contention with regard to the legitimate expectation of the candidates who are serving on temporary basis visavis the regularly candidates who have been selected as per statutory rules through Public Service Commission and after observing at length a specific conclusion is derived by the Division Bench of this Court that ad hoc lecturers cannot be directed to be continued contrary to the recruitment rules nor they can be ordered to be regularised by any mode note warranted by statutory rules governing the appointments to the cadre of lecturers. The ad hoc lecturers thereby had been treated as a separate and distinct class and as such simply because the passage of time has lapsed, they are not entitled to seek any regularisation and compare their status with that of regularly selected lecturers through statutory modes with an aid and assistance of Gujarat Page 41 of 79 C/SCA/9458/2017 CAV JUDGMENT Public Service Commission. At the best, it has been observed that this ad hoc lecturers are entitled for token compensation even if the Government agency is found to be responsible for inaction in seeking regular requisition to the Gujarat Public Service Commission and accordingly by holding specifically all Letters Patent Appeals came to be dismissed and this judgment is not in a position tobe disputed by the learned senior counsel for the petitioners. Since the Court has given a due weightage to this Division Bench judgment of this Court rendered in Letters Patent Appeal No.485 of 2002 dated 11.12.2002 [2003 (1) GLH 312], certain relevant paras contained therein are reproduced herein after.
"16. As noticed above, consultation with the Commission in any of the matters specified in paragraphs (a) and (b) of clause (3) of Article 320 is not necessary in respect of the posts specified in the Schedule to the Exemption from Consultation Rules of 1960 and the post of Lecturer, Gujarat Education Services, Class II, is not included in that Schedule. Such consultation is, however, not necessary in respect of the temporary appointments to all other posts and services for a period not exceeding or not likely to exceed one year as per clause 3(b) of the Regulations of 1960. Thus, no consultation is required when the post is to be filled in for temporary period not likely to exceed one year. This exemption does not authorise the State Government not to consult the PSC in respect of the appointments which are likely to exceed one year. This would mean that, in all such cases, the Government is required to apply its mind and decide before making any temporary appointment whether such appointment is "for a period not exceeding or not likely to exceed" one year. Even in cases where the temporary appointment is not likely to exceed one year, the Government issued circular dated 22nd January 1998 which is mentioned below Page 42 of 79 C/SCA/9458/2017 CAV JUDGMENT Regulation 3 of the said Regulations of 1960 that it is necessary to consult the PSC if such temporary appointment involves relaxation of recruitment rules of the post, finalised in consultation with the PSC even in urgent cases. The Circular of 1992 issued by the Government under Article 162 of the Constitution for making local appointments cannot expand the scope of Regulation 3, and enable the Government to make temporary appointments for an indefinite period exceeding one year. It is an unfortunate situation that the GPSC did not worry about the erosion of its power of being consulted by the culpable inaction on the part of the Government to consult it for appointments to the post of Lecturers, Gujarat Education Service, Class II, despite more than 400 vacancies having arisen.
"16.1 It was contended on behalf of the PSC that, in absence of getting the requisition from the Government inspite of its reminders, it could not exercise its functions. Correspondence was shown to us reflecting the inaction on the part of the Executive in not consulting the GPSC in respect of these vacancies and the lukewarm attitude of the Executive. The GPSC need not have felt itself helpless in not being able to do its work and could have resorted to appropriate legal proceedings for seeking a remedy against the State Government for compelling it to perform its local obligation to consult the Commission in matters in which it was as per the Rules, Regulations and Constitutional provisions required to be consulted. Such inaction on the part of the GPSC as well as the State Government, which had put the machinery of consultation in context of these posts to disuse, verges on negligence in performance of the statutory functions, and amounts to a reckless disregard to the consequences of such inaction in breach of statutory duties entrusted to them. Such reckless inaction and breach of statutory duties would obviously be attributable to the individuals who were required to discharge their functions according to the rules, regulations and the constitutional provisions requiring consultation with the GPSC in the matter of such appointments.Page 43 of 79 C/SCA/9458/2017 CAV JUDGMENT
16.2 The provisions contained in Article 320 with regard to the matters in respect of which the PSC shall be consulted have been held not to be mandatory, because, it was not stated what would be the consequences of the disregard of these provisions, and, clause (3) warranted exclusion of matters from consultation by the Executive. This would mean that, from the point of view of the public, the obligation laid on the Executive was not an enforceable right but only a directive principle. However, in such a case, the PSC is now able to mention in its report under clause (5) of Article 320 about the matters in which its recommendation was not accepted or where it was not consulted though required to be so consulted and such report will have to be placed before the Legislature. The provisions of clause (5) of Article 302 was clearly enacted to ensure that there would be a reasonable certainty that the Executive will be disposed to act with caution and not exercise its powers in an arbitrary fashion and act as if the Public Service Commissions did not exist. If the Executive or the personnel of the Commission do not discharge their duty properly and without fear or favour, then they demean these welcome constitutional provisions. After all, the Constitution cannot either create competent men or compel the Executive to choose the officers required to discharge important functions with care and impartiality.
17. It was argued that, from the continuance of the ad hoc appointees for long period, it should be inferred that the recruitment rules were relaxed in their favour and they are deemed to have been regularised. The appointments of the appellants and the like were mere local appointments made dehors the rules and such ad hoc appointments could not have been made for a period exceeding one year, without consulting the Public Service Commission. The posts having not been filled up on regular basis in accordance with the statutory rules were required to be treated as vacant for the purpose of undertaking the process of regular recruitment. The terms of appointment of the ad hoc appointees clearly Page 44 of 79 C/SCA/9458/2017 CAV JUDGMENT stipulated that they would be relieved when the PSC candidate or a transferee was available. Such ad hoc status of these appointees did not at any stage alter by any rules or regulations having force of law. The appellants and the like who were appointed in ad hoc capacity, therefore, continued to hold the posts in that capacity only, and there would be no alteration of their status from ad hoc appointees to regular recruits. As held by the Supreme Court in State of M.P. v. Dharam Bir, reported in (1998) 6 SCC 165, it is not open for any government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. The exigencies of service often require ad hoc arrangement till the regular selection gets finalised. If the ad hoc employees who continued as ad hoc beyond one year are to be regularised or deemed to have been regularised as argued on their behalf, that would frustrate the very process of selection and appointment as per the mode and procedure prescribed by the statutory rules, and, as would happen in the present case, no posts would be left for the regularly selected persons, because, two persons cannot hold the same post on a regular basis. As held by the Apex Court in Piyara Singh's case (supra), efforts should always be to replace such ad hoc employee by a regularly selected employee as early as possible. Such temporary employee may also compete along with others for such regular selection / appointment and if he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be held in abeyance for the purpose of allowing the ad hoc employee to continue. When the field is covered by the statutory rules laying down the mode of regular appointments, the Courts will not be justified in directing any regularisation which may be dehors the rules. No illegality should be allowed to perpetuate under the Court orders. Therefore, the Court while holding that the regular appointments by direct selection to the post of Lecturers can be made only as per the recruitment rules and the general rules in consultation with the GPSC as Page 45 of 79 C/SCA/9458/2017 CAV JUDGMENT contemplated thereunder, cannot, in the same breadth, order that the ad hoc appointees irregularly continuing beyond one year pending the availability of regular GPSC recruits should be treated as regularised due to their prolonged continuance on ad hoc basis. That would amount to asking the government to violate the statutory rules in the context of the ad hoc appointees while professing to uphold and enforce them in context of the direct recruits. Such selfcontradictory approach would be a mockery of the legal system. It would be for the State Government to devise any scheme consistent with the recruitment rules or a validating statutory provision, if at all the ad hoc appointees are to validly hold the post. It is obvious that the State cannot be compelled by the Court to legislate in the matter for making any statutory exception in the recruitment rules or to retrospectively validate by a statutory provision any such ad hoc appointment."
8.9 In this view of the matter, practically all contentions which have been raised by learned senior counsel appearing on behalf of the petitioners have been taken care of hence Court need not deviate from such propositions of law which has been rather reiterated in the coming years. Hence, the reliefs which are prayed for in a situation like this are not possible to be extended in favour of petitioners.
8.10 So far as the factual details which are reiterated and pressed into service are the facts which are seriously in dispute and Court need not reiterate this well recognised principles propounded by series of decisions that in exercise of writ jurisdiction the facts which are in dispute normally cannot be examined or adjudicated upon and it is left open for the appropriate forum to decide and deal with. One of such propositions which has been delivered by Page 46 of 79 C/SCA/9458/2017 CAV JUDGMENT the Apex Court in the case of Chennai Port Trust vs. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and others reported in (2018) 6 SCC 202 / B as well as in the decision in the case of Satya Pal Anand vs. State of Madhya Pradesh and others reported in (2016) 10 SCC 767 is also worth to be taken into consideration hence relevant abstract only is reproduced herein after.
In the case of Chennai Port Trust vs. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and others reported in (2018) 6 SCC 202, the Apex Court has dealt with this issue of contractual employees.
In the case of Satya Pal Anand vs. State of Madhya Pradesh and others reported in (2016) 10 SCC 767, para:25 reads as under:
"25. It is a well established position that the remedy of Writ under Article 226 of the Constitution of India is extra ordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This Page 47 of 79 C/SCA/9458/2017 CAV JUDGMENT view of the High Court has found favour with Justice Dipak Misra. We respectfully agree with that view."
Now in this context the detailed affidavit which has been filed summerising as to which are the disputed version are inserted in the affidavitinreply which has been filed at length and the Court looking at it is not inclined to exercise such examination of facts in exercise of extra ordinary jurisdiction more particularly when a systematic attempt appears to have been made to thwart the process of regular recruitment under one pretext or another by continuing litigation at the behest of the petitioner. The record of the present petition itself is clearly suggesting that despite the fact that tenure of their contract is over still majority of colleges are allowed to run on the visiting professors but this aspect has been aptly clarified by a list issued by office of Commissioner of Higher Education, Gandhinagar and from the chart entire details are such which substantially falsified stand of the petitioners. In any case, these petitioners who made an attempt to continue themselves even after litigating on earlier petition having circumscribed their right to challenge by claiming a different relief on the basis of practically some factual background once again an attempt is made to seek even regularisation for which there is no right crystalised in favour of petitioner. This Court is not inclined to exercise the power in view of the fact that as many as total number of 109 colleges in the State of Gujarat are set up and 74 colleges are having discipline of arts and out of those 74 colleges, 62 colleges having subject of Hindi being taught. Now as against sanctioned post of Assistant Professor in Hindi subject are 99 and out of the said 99 posts, 39 Page 48 of 79 C/SCA/9458/2017 CAV JUDGMENT posts are field in by regularly selected GPSC candidate whereas 44 posts are field in on the basis of contractual method. Now in view of the policy and in view of exigency, there are as many as 41 regularly selected GPSC candidates who are waiting posting in the subject of Hindi colleges in view of their preference, however, it is but for the present litigation no ultimate postings are in a position to be made. The details which are given in an affidavit dated 10.09.2018 is clearly indicating that under the guise of ad interim relief which has been continued granted ex parte without any reason, these candidates are since long, though scanned regularly as per law, are not in a position to avail the benefit of their successful clearance in recruitment. So if the colleges are to be balanced between the petitioners and the regularly GPSC selected candidates certainly the equities are leanining in favour of newly recruited candidates rather than these petitioners who have till date successfully continued themselves under one or another pretext. The Court is unable to accept the stand of the petitioners, as a result of this, even on the aspects of vacancies Court is not in a position to accept the stand of the petitioners more particularly when it has been brought to the notice of this Court by a detailed chart at page:445 wherein out of leftout vacant posts of 351 even the process of further requisition has commenced. Hence, in absence of any legal right in favour of petitioners, Court is unable to accede to the request made by the petitioners. The dates given are not possible to be ignored by the Court particularly when the same is placed on record on oath with the support of affidavitin reply. Learned counsel in this background has tried to persuade the Page 49 of 79 C/SCA/9458/2017 CAV JUDGMENT Court by dribbling sympathy but such niceties have long been set at rest not only by Division Bench of this Court in a binding decision but by recent pronouncement as well which are referred to above. Hence, the Court with a heavy heart, knowing the consequence to be fall back upon the petitioners, is unable to accept the submission particularly when statement is created by the petitioners by their own conduct. Some of them have participated in the examination and those who have cleared have withdrawn their respective challenge from the petition majority of them either not appeared but chosen to continue with the litigation since they were protected or the candidates who have not secured the selection have continued their challenge in a situation like this even if there might be some fallback upon the petitioners, the Court can not ignore principles propounded by series of decisions and also cannot ignore the legitimate expectation of regularly selected candidates through GPSC and through statutory mode of recruitment. Hence, this being a situation, no case is made out by the petitioners, as a result of this, left with no other alternate the petitioners' case deserves no consideration.
9. The Court while coming to this conclusion has considered the recruitment rules framed under Article 309 of the Constitution of India which has got full effect and the said rules by virtue of Notification dated 19.03.2011 are framed in supersession of all the rules made in past the effect of this statutory rules cannot be given a gobye rather it is time and again reminded that no Court shall take a decision contrary to the statutory rules. The attempts made by the petitioner by claiming multiple reliefs even after disposal of Page 50 of 79 C/SCA/9458/2017 CAV JUDGMENT earlier petition, no case is made out to grant the relief as prayed for in the petition. So far as equal pay for equal wage is concerned, the status, the responsibility, the nature of appointment everything will have to be considered and simply because these petitioners have been continued at a specific payscale looking to their nature of employment and their status visavis statutory rules the petitioners are not possible to be equated with regularly selected GPSC candidates. The 'equal pay for equal work' principle has been time and again was the subject matter of scanning by Apex Court and over the period of time, the said principle has well been explained in a later decision which Court can not ignore. Hence, keeping in view the observations made by the Apex Court on this issue of 'equal pay for equal work' observed in a decision in the case of Dhirendra Chamoli vs. State of U.P. reported in (1986) 1 SCC 638, this Court is unable to accede to the request of the petitioner on that issue as well particularly when such issue is crystalised finally. Hence, in view of this peculiar background of facts and in view of the detailed submissions made by learned senior counsel appearing for both the sides, this Court is not inclined to accept the stand of the petitioner and the submissions which have been made are found to be devoid of merits. Accordingly, no case is made out in considered opinion of this Court. Hence, keeping in view this background in mind, some of the decisions which are heavily relied upon are being dealt with herein after.
10. The first decision, which has been relied upon, is a decision delivered by the Division Bench of this Court dated 20.02.2018 rendered in Letters Patent Appeal No.189 of 2018. A close perusal Page 51 of 79 C/SCA/9458/2017 CAV JUDGMENT of the said decision was dealing with a fact situation in which the appointment was made to post of Assistant Station Officer (Fire Brigade), on a fixed salary of Rs.10,000/ and tenure of 5 years containing various conditions and further the said employee was to be discontinued on account of misconduct, act of indiscipline which was tantamount to be a stigma and as the such fact situation was different from what has been on the hand, the Court found that in such a scenario the discontinuance was examined and since the learned Single Judge had not adverted to a device of appointment not on regular basis, the Court observed that it was a contract between Lion and Lamb. So in a peculiar set of said circumstance, the Court examined the validity of the order of the learned Single Judge and the appeal came to be disposed of. The learned Single Judge in that case had clearly observed that plain reading of termination was stigmatic action and as such there was a live nexus between the misconduct and the action of termination. So in that factual scenario, the Hon'ble Court had observed which background is altogether different.
10.1 So a slight change in the fact or one additional fact would make a world of difference in applying the ratio, the Court is inclined to examine further judgments as well hereinafter.
10.2 Mr.Oza, learned senior advocate has relied upon the following decisions, one of which is delivered by the learned single judge of this Court dated 17.09.2014 in case of group of petitions headed by Special Civil Application No.10852 of 2003 but a perusal of said case has indicated that classification was found by the Page 52 of 79 C/SCA/9458/2017 CAV JUDGMENT learned single judge to be an artificial and there was a long passage of 18 years practically in the continuance of office by the employee and hence in that peculiar facts, the learned Single Judge has dealt with the issue but it has been conveyed that the Letters Patent Appeal has been carried on against the said decision. The facts are quite distinct wherein the employees were working in Kalptaru Super Market at Vadodara and during the passage of their service, some of them have been transferred. The appointment letters came to be made to different posts after selection in respect of public advertisement published by Gujarat Still State Civil Supply Corporation and the grievance arose about their termination during the subsistence of contract and since the termination of their services on completion of extended period, the petitioners filed the petition. No doubt, some of the observations contained in the said decision are possible to be found attractive but reading the said judgment at length it appears that the said apprehension of employee was on the basis of policy of absorption in eventuality of closer of its store. Hence, again a close reading of said judgment indicates that these petitioners have filed their respective petitions during the subsistence of contract whereas here in the present case majority of them are under the shelter of interim protection ex parte granted though long back their service tenure is over. Hence, principle which has been hard pressed by the learned advocate is not possible to be applied as a straight jacket formula particularly when almost exactly on a similar situation the Division Bench of this Court has considered the contentions which are almost similar to the present one. Hence, this Court is not inclined to apply the said principle particularly when facts are different, conduct of the Page 53 of 79 C/SCA/9458/2017 CAV JUDGMENT petitioners are different and the earlier litigation has also got some bearing upon equitable exercise of jurisdiction.
10.3 Yet another decision which has been tried to be pressed into service are decision delivered by the learned single judge on 10.10.2017 in Special Civil Application No.4853 of 2015 in which there was a question with respect to parttime teacher was working on a contract basis as a part time daily wager for a fixed salary for a period of 11 months which was extended time to time and in that scenario, the regularisation was sought for on the main plea that those petitioners have also been appointed after selection process akin to the recruitment rules and their employment was continued from year to year. In the said decision, the posts were readvertised to replace the petitioners which have been continued for last 15 years and the employment was tobe substituted and as such by a brief order it was found by the Court the scheme under which the petitioner was appointed, regularisation was missing from the rule book and the regularisation casts huge financial implication on the public exchequer but again the said decision which has been pressed into service is in the background of different sets of circumstance. Hence, the Court is unable to extend the benefit of the said decision in favour of petitioners.
10.4 Following are some of the decisions have been relied upon one in case of Writ Petition (PIL) No.49 of 2011 delivered by Division Bench of this Court on 20.01.2012 wherein the essential challenge was in the said publication litigation to seek direction to pay minimum of payscale available in the cadre of the employees Page 54 of 79 C/SCA/9458/2017 CAV JUDGMENT who are appointed on the regular permanent posts with deemed date and sought incidental reliefs. The Division Bench has opined specifically but as per say of learned advocates representing the respondents that SLP, which has been filed, is pending awaiting final adjudication. Hence, since the Court was looking at a different controversy altogether, principle may not be helpful to the petitioners. Here 'the equal pay for equal work' which has been sought as one of the incidental relief, for that parameter which are prescribed by the Hon'ble Apex Court in decision reported in (2017) 1 SCC 148 are not confidently possible tobe applied here particularly when the principle of 'equal pay for equal work' is in a later decisions also aptly illustrated. Here the petitioners are on the contractual basis having a different classification and, therefore, simply because they are working and discharging similar duty, no automatic invocation of the principle of 'equal pay for equal work' to be adopted. The Hon'ble Apex Court, in a later decisions also, have clarified that employees who have been not in consonance with the recruitment rules and the employees forming a different class altogether are not entitled automatically for equal pay for equal work and again at the cost of repetition, this issue has also been dealt with by earlier Division Bench of this Court. Resultantly, without much elaboration at length, the Court is of the opinion that such principle is not in a routine manner possible to be applied. Of course, the ratio laid down by the Apex Court will have to be followed and observed in its true sense but if the background of fact is not permitting the Court then the precedential value also will have tobe taken into consideration by the Court.
Page 55 of 79 C/SCA/9458/2017 CAV JUDGMENT10.5 Yet another decision which has been tried to be applied is a decision delivered by the Apex Court in the recent time in Civil Appeal No.10956 of 2018 in which a case arose from State of U.P. Wherein the respective appellants before the Apex Court were daily rated employees employed in the Forest Department of U.P. and a writ petition was brought for seeking regularisation of their services the minimum of the payscale available to the counter parts working on regular posts in which the High Court of Uttar Pradesh has held that daily rated waged workers shall be paid at minimum of payscale and after considering the observations made by the Apex Court in Jagjit Singh's case, the Apex Court directed the State of Uttar Pradesh to pay the minimum of payscale to the appellants. In the very said decision, two issues cannot be overlooked that the Hon'ble Supreme Court was not called upon to adjudicate on the rights of appellants relating to regularisation of their services and in that context referred to in para:11 the Hon'ble Apex Court has propounded that ad hoc employees appointed on casual basis or contractual basis and the likewise are entitled to minimum of regular pay. Again for the cost of repetition, the Court is of the opinion that petitioners are not entitled to equitable relief from this Court having projected the conduct which apparently uncalled for of concealing the material facts and not only that an attempt was made to show that some of the judgments i.e. (2007) 11 SCC 92 which is overruled in a later decision is tried to be relied upon with an aim to secure the relief, this Court is not inclined to consider the said relief for 'equal pay for equal work'. Again a reference is tried to be made of a decision which is reported in (1986) 1 SCC 637. In that case also, a close reading it was Page 56 of 79 C/SCA/9458/2017 CAV JUDGMENT specifically conceded in a counter affidavit by the deponent that the persons engaged by Nehru Yuvak Kendra are performing the same duties and upon such background the mandate of equity enshrined under Article 14 of the Constitution of India is propounded by the Apex Court. But as said earlier action in exactly similar situation when the Division Bench in Letters Patent Appeal No.485 of 2002 has clearly opined which principle is not disturbed, the Court is not inclined to take a different view in a different background.
10.6 Other decisions which are pressed into service are one which is a decision dated 30.01.2019 in Civil Application No.1 of 2018 and the perusal of the said decision practically an issue was whether an ad hoc employee can be replaced by other ad hoc or contractual employees and in that context, the decision was passed on which situation is not prevailing in case on hand. Hence, no reliance is possible to be made by learned senior counsel for the petitioners.
10.7 Yet another decision which is tried to be pressed into service but the manner in which an attempt is made to dump the decisions on the Court having different background of facts, the Court is not inclined to encourage such attempt which has been made. For example, one Civil Application for stay, which has been pressed into service, which is decided in a group of applications on 27.01.2017 headed by Civil Application No.12665 of 2015, the Hon'ble Court was confronted with the situation where in that case respondent organisation had adopted a mode of rejection of staff which is in service for more than 10 years on the ground that Page 57 of 79 C/SCA/9458/2017 CAV JUDGMENT project has lost its life and having found that facts are not correct till the conclusion of the main proceedings the services were ordered not to be terminated. Now, this is basically at the interim stage but when the Court has taken up an issue finally, the final outcome which is more relevant to be relied upon instead of interim orders, which have been passed and has well propounded that interim orders are not to be treated as precedent. Hence, the Court is not inclined to accept the submissions made by learned senior advocate appearing for the petitioners.
11. The bunch of judgments have been thrushed upon the Court which the Court found that it is another attempt of shirking out from the suppression of earlier round of litigation, hence the Court is not inclined to accept the submissions made by learned senior counsel appearing for the petitioners.
12. Now, in the context of aforesaid decisions, which have been relied upon by learned senior counsel for the petitioners, Ms.Sangita Vishen, learned Assistant Government Pleader has relied upon following decisions:
(i) a decision delivered in Special Civil Application No.6786 of 2009 decided on 08.07.2009;
(ii) (2006) 4 SCC 1; Secretary, State of Karnataka vs. Uma Devi (3) and others;
(iii) (2008) 10 SCC 1; Official Liquidator vs. Dayanand Page 58 of 79 C/SCA/9458/2017 CAV JUDGMENT & Ors.;
(iv) (2016) 8 SCC 293; State of Maharashtra and others vs. Anita and another;
(v) (2011) 7 SCC 397; Union of India and another vs. Arulmozhi Iniarasu and others.
12.1 A bare perusal of aforesaid decisions would indicate that the same appears to be well supported to the submissions which are made by learned Assistant Government Pleader. Almost in an identical situation, learned Single Judge of this Court on 08.07.2009 has clearly opined that prayer for the petitioner to continue is not possible to be granted as it has been opined by Apex Court with ad hoc employees have no right to continue till regularly selected employees come. Said observations made in para:6 since relevant are reproduced herein after.
"6. Now so far as the prayer of the petitioner to continue the petitioner as ad hoc lecturer in the government institution where he is serving till regularly selected GPSC candidate is available is concerned, in view of the decision of the Hon'ble Supreme Court in the case of Ram Adhar (supra) and Keshav Chandra Joshi (supra) such a relief cannot be granted. As held by the Hon'ble Supreme Court in the aforesaid decision ad hoc employee has no right to continue till regular persons go."
12.2 Yet another decision in the case of Secretary, State of Karnataka vs. Uma Devi (3) and others reported in (2006) 4 SCC 1 in which also a general proposition which is relied upon Page 59 of 79 C/SCA/9458/2017 CAV JUDGMENT appears to be misconstrued by learned senior advocate for the petitioner. The relevant observations made by the Apex Court in the said decision itself are not possible to be ignored. The relevant paragrapsh in this regard are wroth to be quoted here since the said observations are based on several decisions of Apex Court. Hence, without over burdening the present judgment only relevant abstracts contained in paras:43, 45, 47 and 50 are reproduced herein after.
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc Page 60 of 79 C/SCA/9458/2017 CAV JUDGMENT employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently.Page 61 of 79 C/SCA/9458/2017 CAV JUDGMENT
By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware Page 62 of 79 C/SCA/9458/2017 CAV JUDGMENT of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the Page 63 of 79 C/SCA/9458/2017 CAV JUDGMENT employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality."
12.3 Looking to the aforesaid observations this Court is also in a considered opinion that the contention which has been raised by learned Assistant Government Pleader sounds more confidence than that of case of the petitioners. Learned Assistant Government Pleader has further relied upon decision delivered by the Apex Court in case of Official Liquidator vs. Dayanand & Ors. reported in (2008) 10 SCC 1 which is again in respect of public employment and after considering the various decisions which are relied upon by the petitioners. In fact a serious attempt was made at one point of time to mislead the Court by heavily relying upon the observations made in Puranchandra Pandey's case reported in (2007) 11 SCC 92, a two Judges' Bench decision, which was watered down by the Apex Court in this decision of Official Liquidator vs. Dayanand & Ors. reported in (2008) 10 SCC 1. The relevant observations contained which are directly answered to some of the contentions of the petitioners are required to be reproduced herein after.
"101. We shall now advert to the question whether the respondents can invoke the doctrine of legitimate expectation for supporting the impugned orders. This part of the respondent's claim is founded on their assertion that notwithstanding the contrary stipulation Page 64 of 79 C/SCA/9458/2017 CAV JUDGMENT contained in the orders of appointment, they had expected that in view of the 1978 Scheme the Government will absorb them in the regular cadres on some future date and give benefit of the principle of equal pay for equal work. The argument of Shri Bhaskar P. Gupta and Ms. Jyoti Mendiratta is that the respondents had joined as company paid staff with the hope that they will be absorbed in the Government service, but their hopes have been totally belied because instead of creating adequate number of posts for absorption of company paid staff in accordance with the 1999 Scheme, the Government has arbitrarily abolished large number of posts in direct recruitment quota and on that account, even those who have been adjudged suitable will never get absorbed in the regular cadres. In our opinion, there is no merit in this argument. The pleadings of the parties and records produced before the High Courts and this Court do not show that any competent authority of the Government of India had ever given any assurance much less made a promise to the respondents that they will get absorbed against the sanctioned posts or that there will be no abolition of posts meant to be filled by direct recruitment. As a matter of fact, the respondents joined as company paid staff knowing fully well that they were being employed as additional staff in connection with the liquidation proceedings and on the basis of sanction accorded by the concerned Court and further that they will have no right to seek absorption. They also knew that their employment will come to an end on the expiry of the tenure specified in the letter/order of appointment or on cessation of the liquidation proceedings. In this scenario, the doctrine of legitimate expectation cannot be invoked for sustaining the directions given by the High Courts for absorption of all company paid staff with consequential benefits or for nullifying the policy decision taken by the Government to gradually reduce the direct recruitment quota.
114. By applying the ratio of the aforementioned judgment to the facts of this case, we reiterate that the respondents cannot invoke the doctrine of legitimate Page 65 of 79 C/SCA/9458/2017 CAV JUDGMENT expectation. At the cost of repetition, it needs to be emphasized that the respondents were employed by the Official Liquidators as additional staff pursuant to the sanction accorded by the concerned Courts. The conditions of their appointment clearly envisaged cessation of employment at the end of fixed tenure or on completion of liquidation proceedings. Of course, as it later turned out, the respondents were made to work in relation to different liquidation proceedings and for that purpose, the term of their employment/engagement was extended from time to time and they continued in service for many years in the same capacity. However, no material has been placed before this Court to show that any promise was made or any assurance was held out to the respondents by any competent authori9ty of the Government of India for their absorption in the regular cadres. There is nothing in the language of Rule 308 of the 1959 Rules from which it can be inferred that those employed as additional staff in connection with the liquidation proceedings will, in future, be absorbed in the regular cadres."
12.4 In this situation, even the judicial discipline is also well explained by the Apex Court while considering the case and, therefore, the binding decision of coordinate bench has also been dealt with lucidly. Resultantly, the Court is inclined to emphsise upon aforesaid relevant observations which are reproduced herein before.
12.5 Yet another decision which has been pressed into service is a decision in the case of Union of India and another vs. Arulmozhi Iniarasu and others reported in (2011) 7 SCC 397 where again the issue regarding regularisation is being dealt with by the Apex Court in respect of parttime contingenuous labourers and in that context whether High Court should issue writ of Page 66 of 79 C/SCA/9458/2017 CAV JUDGMENT mandamus to command the authority to regularise is also well explained. Hence, the Court is of the view that those observations since relevant deserve to be quoted herein after more particularly in paras:23 and 26 which are the apt observations and since the Court is inclined to reproduce the same.
"23. It is plain from the terms of the letter of appointment that the respondents were told in unambiguous terms that their appointments were temporary and would not confer any right to claim any permanent post in the Department. It is not the case of the respondents that at any point of time, during their engagements with the appellants, a promise was held out to them by the appellants that they would be absorbed as regular employees of the Department. In fact, no such promise could be held out in view of the Government OM dated 761988 banning the employment of persons in regular posts.
26.Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed / absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. (Ref. Sushanta Tagore v. Union of India [(2005) 3 SCC 16], State Sugar Corpn. Ltd. v. Sant Raj Singh [(2006) 9 SCC 82], State v. Sashi Balasubramaniam [(2006) 13 SCC 252] and State of Orissa v. Prasana Kumar Sahoo [(2007) 15 SCC 129]"
12.6 A further decision which has been relied upon is a decision in the case of State of Maharashtra and others vs. Anita Page 67 of 79 C/SCA/9458/2017 CAV JUDGMENT and another reported in (2016) 8 SCC 293 in which also the Apex Court has dealt with an issue of nature of employment and estopple against challenging the nature of employment / appointment once having accepted since those of recent times, relevant observations made in paras:12, 14 and 15 are reproduced herein after.
"12. Subsequently, the said Resolution was modified by Government Resolution dated 15.09.2006. In the said Resolution, the column specifying "Pay Scale" was substituted with column "Combined Permissible Monthly Pay + Telephone & Travel Expenses". However, there was no change in the decision of the government on filling up the posts on contractual basis. Government Resolution dated 15.09.2006 stipulates the terms and conditions of the contractual appointments. Clauses 'A', 'B', 'C' and 'D' read as under: (A) The appointment of the said posts would be completely on contractual basis. These officers/employees would not be counted as government employees.
B) The said appointments should be made on contract basis firstly for 11 months. After 11 months the term of the agreement could be increased from time to time if necessary. Whereas, the appointing authority would take the precaution while extending the terms in this manner that, at one time this term should not be more than 11 months. The appointment in this way could be made maximum three times. Thereafter, if the competent authority is of the opinion that the reappointment of such candidate is necessary then such candidate would have to again face the selection process.
C) The concerned appointing authority at the time of the appointment would execute an agreement with the concerned candidate in the prescribed format. The prescribed format of the agreement is given in Appendix 'B'. It would be the responsibility of the Page 68 of 79 C/SCA/9458/2017 CAV JUDGMENT concerned office to preserve all the documents of the agreement.
D) Except for the combined pay and permissible telephone and travel expenses (more than the above mentioned limit) any other allowances would not be admissible for the officers/employees being appointed on contract basis."
14. It is relevant to note that the respondents at the time of appointment have accepted an agreement in accordance with Appendix 'B' attached to Government Resolution dated 15.09.2006. The terms of the agreement specifically lay down that the appointment is purely contractual and that the respondents will not be entitled to claim any rights, interest and benefits whatsoever of the permanent service in the government. We may usefully refer to the relevant clauses in the format of the agreement which read as under: "1. The First Party hereby agrees to appoint Shri/Smt._________ (Party No. II) as a ________ on contract basis for a period of 11 months commencing from __________ to __________ (mention date) on consolidated remuneration of Rs.___________ (Rupees _____________ only) per month, and said remuneration will be payable at the end of each calendar month according to British Calendar. It is agreed that IInd party shall not be entitled for separate T.A. and D.A. during the contract period....
2. ..........
3. .........
4. ...........
5. Assignment of 11 months contract is renewable for a further two terms of 11 months (i.e. total 3 terms), subject to the satisfaction of Competent Authority, and on its recommendations.
6. The Party No. II will not be entitled to claim any rights, interest, benefits whatsoever of the permanent service in the Government."
Page 69 of 79 C/SCA/9458/2017 CAV JUDGMENT15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents' engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria."
12.7 So from the aforesaid observations having drawn the attention by learned Assistant Government Pleader, the Court is of the view that same has been rightly pressed into service to dislodge the foundation of case of the petitioners.
13. A further reference also not possible to be unnoticed by the decisions which have been relied upon by Mr.S.N.Shelat, learned senior counsel. This Court has very much kept in mind and noticed the observations and the decisions reported of Division Bench of this Court in case of K.D.VOhra and others vs. Kamleshbhai Gobarbhai Patel reported in 2003 (1) GLH 312. So the Court is not inclined to overburden this judgment but is emphatically observing in para:17 of the said decision. Hence, the said paragraph is reproduced herein after.
"17. It was argued that, from the continuance of the ad hoc appointees for long period, it should be inferred that the Page 70 of 79 C/SCA/9458/2017 CAV JUDGMENT recruitment rules were relaxed in their favour and they are deemed to have been regularised. The appointments of the appellants and the like were mere local appointments made dehors the rules and such ad hoc appointments could not have been made for a period exceeding one year, without consulting the Public Service Commission. The posts having not been filled up on regular basis in accordance with the statutory rules were required to be treated as vacant for the purpose of undertaking the process of regular recruitment. The terms of appointment of the ad hoc appointees clearly stipulated that they would be relieved when the PSC candidate or a transferee was available. Such ad hoc status of these appointees did not at any stage alter by any rules or regulations having force of law. The appellants and the like who were appointed in ad hoc capacity, therefore, continued to hold the posts in that capacity only, and there would be no alteration of their status from ad hoc appointees to regular recruits. As held by the Supreme Court in State of M.P. v. Dharam Bir, reported in (1998) 6 SCC 165, it is not open for any government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. The exigencies of service often require ad hoc arrangement till the regular selection gets finalised. If the ad hoc employees who continued as ad hoc beyond one year are to be regularised or deemed to have been regularised as argued on their behalf, that would frustrate the very process of selection and appointment as per the mode and procedure prescribed by the statutory rules, and, as would happen in the present case, no posts would be left for the regularly selected persons, because, two persons cannot hold the same post on a regular basis. As held by the Apex Court in Piyara Singh's case (supra), efforts should always be to replace such ad hoc employee by a regularly selected employee as early as possible. Such temporary employee may also compete along with others for such regular selection / appointment and if he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be held in abeyance for the purpose of Page 71 of 79 C/SCA/9458/2017 CAV JUDGMENT allowing the ad hoc employee to continue. When the field is covered by the statutory rules laying down the mode of regular appointments, the Courts will not be justified in directing any regularisation which may be dehors the rules. No illegality should be allowed to perpetuate under the Court orders. Therefore, the Court while holding that the regular appointments by direct selection to the post of Lecturers can be made only as per the recruitment rules and the general rules in consultation with the GPSC as contemplated thereunder, cannot, in the same breadth, order that the ad hoc appointees irregularly continuing beyond one year pending the availability of regular GPSC recruits should be treated as regularised due to their prolonged continuance on ad hoc basis. That would amount to asking the government to violate the statutory rules in the context of the ad hoc appointees while professing to uphold and enforce them in context of the direct recruits. Such selfcontradictory approach would be a mockery of the legal system. It would be for the State Government to devise any scheme consistent with the recruitment rules or a validating statutory provision, if at all the ad hoc appointees are to validly hold the post. It is obvious that the State cannot be compelled by the Court to legislate in the matter for making any statutory exception in the recruitment rules or to retrospectively validate by a statutory provision any such ad hoc appointment."
13.1 Further decisions which are relied upon are one which is reported in case of Indian Drugs and Pharmaceuticals Limited vs. Workman, Indian Drugs And Pharmaceuticals Limited reported in 2006 (0) GLHEL - HC - 38282 and while considering the said decision, the relevant observations contained in paras:37 to 41 deserve a specific attention and hence the same are reproduced herein after.
"37. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization Page 72 of 79 C/SCA/9458/2017 CAV JUDGMENT can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan & others vs. State of Kerala & others 1996 (10) SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore vs. State of Maharashtra 1997(3) SCC 209, Union of India & others vs. Bishambar Dutt 1996 (11) SCC 341. The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.
38. In Dr. Surinder Singh Jamwal & another vs. State of Jammu & Kashmir & others AIR 1996 SC 2775, it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules.
39. In Ashwani Kumar & others etc. vs. State of Bihar & others etc. AIR 1996 SC 2833, the appointment made without following the appropriate procedure under the rules/Government circulars and without advertisement or inviting application from the open market was held to be in flagrant breach of Articles 14 and 16 of the Constitution.
40. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi vs. Accountant General, Ahmedabad & others 2003(2) SCC
632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.Page 73 of 79 C/SCA/9458/2017 CAV JUDGMENT
41. The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary."
13.2 Yet another decision which is delivered by the Apex Court in case of Yogesh Mahajan vs. R.C.Deka, Director, All India Institute of Medical Sciences reported in 2018 (0) AIJEL - SC - 61595 which is dealing with an issue of ad hoc employee vis avis Articles 14 and 16 scope for seeking regularisation and against nonrenewal of employment contract. Now, the Apex Court while dealing with such issue has aptly summerised the position of a contract employee and its lawful right. The relevant observations of this recent decision deserve consideration for its application in the present order and hence the same are reproduced herein after.
"6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At Page 74 of 79 C/SCA/9458/2017 CAV JUDGMENT best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.
7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner.
8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walkin interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so."Page 75 of 79 C/SCA/9458/2017 CAV JUDGMENT
13.3 Further recent decision of the Hon'ble Apex Court in case of Civil Appeal No.2356 of 2018 wherein also an issue cropped up of regularisation of a college employee and while dealing with such a situation, law regarding regularisation have been observed which cannot be unnoticed or given a gobye, hence, para:8 of the said decision is reproduced herein after which is reiteration of principle which has been propounded in past.
"8. Law pertaining to regularisation has now been authoritatively determined by a Constitution Bench judgment of this Court in Secretary, State of Karnataka and ors. v. Umadevi and ors., (2006) 4 SCC 1. On the application of law laid down in that case, it is clear that the question of regularisation of daily wager appointed contrary to law does not arise. This ratio of the judgment could not be disputed by the learned counsel for the appellant as well. That is why she continued to plead that the appointment of the appellant was made after following due procedure and in accordance with law. However, that is not borne from the records. Pertinently, order dated August 13, 2003, vide which the appellant was refused regularisation on the aforesaid ground was not even assailed by the appellant at that time. It may be mentioned that in Uma Devi, the Court left a small window opened for those who were working on ad hoc daily wage basis for more than ten years, to regularise them as a onetime measure. However, that was also subject to the condition that they should have been appointed in duly sanctioned post. Further, while counting their ten years period, those cases were to be excluded where such persons continued to work under the cover of orders of the courts or the tribunal. The High Court has, in the impugned judgment, discussed these nuances and has also referred to the judgment in Uma Devi and held that the benefit of one time measure suggested in that case could not be extended to the appellant because of the following reasons:Page 76 of 79 C/SCA/9458/2017 CAV JUDGMENT
"The Appellants clearly fall in the exception noticed in paragraph53 of Umadevi (supra) as their claims were sub judice on the date the pronoucement of the Constitution Bench was made in view of pendency of C.W.J.C. No.12235 of 2005 disposed subsequently on 29.08.2006. Such litigious continuation in employment stands excluded from the directions of Umadevi.
The Appellants claim to have been regularised within the staffing pattern. In our opinion, it is not the crux of the matter. The crucial question is if their initial appointment by the Managing Committee was in consonance with Article 14 of the Constitution of India by open advertisement and competitive merit selection. On account of various interpretations by more than one Bench of M.L.Kesari (supra) reference from the order refusing regularisation dated 13.08.2003 that the appointment of the Appellants on daily wage was not in consonance with the law.
The conclusion in Ram Sewak Yadav (supra) at paragraph 43 is as follows: "43 (A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad hoc, and temporary appointments, the period of service being irrelevant;
(B) An illegal appointment void ab initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.
(C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article Page 77 of 79 C/SCA/9458/2017 CAV JUDGMENT
14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.
(D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders."
14. Several other decisions have been relied upon by learned senior counsel Shri S.N.Shelat but having found aforesaid decisions are more relevant and of enough assistance to avoid unnecessary burden every judgment is not discussed or reproduced in the present order.
15. Hence, keeping in mind the aforesaid situation propounded by series of decisions and after analysing record of the case, this Court is of the considered opinion that no case is made out by the petitioner for the relief for which they have litigated even in the second round. May be that incidental relief is found to be different but the summery of overall principle of aforesaid decision has led this Court to opine and conclude that no case is made out by the petitioners.
16. Of course, some of the petitioners by virtue of present order has got serious repercussions of discontinuance but no undue sympathy is possible to be extended by this Court except by observing that if any legitimate monetary claim is left out, the same can be agitated before the appropriate forum. Subject to the Page 78 of 79 C/SCA/9458/2017 CAV JUDGMENT aforesaid observations, all these present petitions are hereby dismissed with no order as to costs. Since the main petitions are disposed of Civil Applications are disposed of as having been not survived and it would be open for the authority to act in accordance with law since the regularly selected candidates through Gujarat Public Service Commission now already available.
17. At this stage, when the order is pronounced, Mr.Oza, learned senior counsel appearing for the petitioners prays for stay of operation of the present order so as to enable the petitioners to approach the higher forum. This request is opposed by learned advocates appearing on behalf of the respondents but in view of the fact that interim order was operative throughout right from 05.05.2017, the Court is inclined to consider the request with a view to give fair chance of appeal to the petitioners. Accordingly, the present order shall not be operative till 15.04.2019.
(A.J. SHASTRI, J) MISHRA AMIT V. Page 79 of 79