Tapasvi Parul Shashikant & 42 vs State Of Gujarat & 15 on 16 March, 2017

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Gujarat High Court

Tapasvi Parul Shashikant & 42 vs State Of Gujarat & 15 on 16 March, 2017

Bench: Sonia Gokani

                  C/SCA/19423/2016                                                ORDER



                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    SPECIAL CIVIL APPLICATION NO. 19423 of 2016
              [On note for speaking to minutes of order dated 31/01/2017 in
                                  C/SCA/19423/2016 ]
                                        With
                     SPECIAL CIVIL APPLICATION NO. 20131 of 2016
                                               With
                     SPECIAL CIVIL APPLICATION NO. 20132 of 2016
         ==========================================================
                     TAPASVI PARUL SHASHIKANT & 42....Petitioner(s)
                                      Versus
                        STATE OF GUJARAT & 15....Respondent(s)
         ==========================================================
         Appearance:
         MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 - 43
         MR NIKUL K SONI, ADVOCATE for the Petitioner(s) No. 1 - 43
         GOVERNMENT PLEADER for the Respondent(s) No. 1
         MRS NISHA M PARIKH, ADVOCATE for the Respondent(s) No. 13
         NOTICE SERVED BY DS for the Respondent(s) No. 2 - 12 , 14 - 16
         ==========================================================
         CORAM:              HONOURABLE MS JUSTICE SONIA GOKANI
                                   Date : 16/03/2017
                                          ORAL ORDER

By way of this note for speaking to minutes, it is averred that in the cause title of the order passed by this Court in these matters on 31.01.2017, Special Civil Application No. 19424 of 2016 is WRONGLY mentioned, since, the same had already been disposed of by this Court vide its order dated 08.12.2016. Hence, the necessary corrections shall be made in the cause title of the order of this Court dated 31.01.2017, forthwith. DISPOSED OF, accordingly. Page 1 of 2 HC-NIC Page 1 of 19 Created On Sun Aug 13 06:15:05 IST 2017 1 of 19 C/SCA/19423/2016 ORDER (MS SONIA GOKANI, J.) UMESH Page 2 of 2 HC-NIC Page 2 of 19 Created On Sun Aug 13 06:15:05 IST 2017 2 of 19 C/SCA/19423/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 19423 of 2016 With SPECIAL CIVIL APPLICATION NO. 19424 of 2016 With SPECIAL CIVIL APPLICATION NO. 20131 of 2016 With SPECIAL CIVIL APPLICATION NO. 20132 of 2016 ========================================================== TAPASVI PARUL SHASHIKANT & 42....Petitioner(s) Versus STATE OF GUJARAT & 15....Respondent(s) ========================================================== Appearance:

MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 - 43 MR NIKUL K SONI, ADVOCATE for the Petitioner(s) No. 1 - 43 MR RONAK RAVAL, GOVERNMENT PLEADER for the Respondent(s) No. 1 MRS NISHA M PARIKH, ADVOCATE for the Respondent(s) No. 13 NOTICE SERVED BY DS for the Respondent(s) No. 2 - 12 , 14 - 16 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 31/01/2017 COMMON ORAL ORDER

1. This group of petitions since involve identical questions of facts and law, therefore deserve consideration by a common order.

2. The facts are drawn from Special Civil Application No.19423 of 2016.

3. The petitioners have been appointed as adhoc Page 1 of 17 HC-NIC Page 3 of 19 Created On Sun Aug 13 06:15:05 IST 2017

3 of 19 C/SCA/19423/2016 ORDER lecturers in the subject of Electronics & Communication Engineering in Gujarat Government Polytechnic, or until the regular appointments are made through Gujarat Public Service Commission ("the GPSC" for short) whichever is earlier.

4. The grievance of the petitioners is that their termination came abruptly on 18.11.2016 without availing any opportunity. Aggrieved by such an action of immediate and unilateral termination, the petitioners are before this Court.

5. It is undisputed fact that pursuant to the advertisement issued in the year 2013, GPSC selected 7000 candidates. The appointment orders came to be made for 71 candidates. They joined the service. They continued in the service till the impugned order came to be passed on 18.11.2016.

6. It is the grievance on the part of the petitioners that staff position of the lecturers in subject of Electronics and Communication should reveal that there is a deficit against sanctioned post. Even after 71 appointments were Page 2 of 17 HC-NIC Page 4 of 19 Created On Sun Aug 13 06:15:05 IST 2017 4 of 19 C/SCA/19423/2016 ORDER made, 25 adhoc lecturers would be required. It is further the say of the petitioners that the GPSC issued advertisement on 24.11.2015 for regular recruitment of 31 lecturers in the very field. The petitioners have applied and written test was held. Result is awaited. It is also the say of the petitioners that for regular recruitment of 31 lecturers in this field, when the process has not been completed, there is no rational for passing the order of termination so far as present petitioners are concerned.

7. According to the petitioners as per the All India Council for Technical Education ("the AICTE" for short) norms, the total sanctioned strength is 279 posts of lecturers. However, the respondent authority has sanctioned only 205 posts and the same has also not been filled up by regular appointment till date. It is further their grievance that the workload of the lecturers by Circular dated 7.2.2015 also has been increased wrongfully. Instead of resolving the problem of shortage of lecturers, it is a method of increasing the workload, which is contrary to the Page 3 of 17 HC-NIC Page 5 of 19 Created On Sun Aug 13 06:15:05 IST 2017 5 of 19 C/SCA/19423/2016 ORDER AICTE norms.

8. The petitioners have, therefore, approached this Court with a specific prayer that until all 279 posts of the lecturers of Electronic & Communication are filledup by way of regular appointments, the petitioners are required to be continued. Another aspect that has been raised is of the merger of two shifts, which is again, according to the petitioners, is not what the AICTE norms provide for, and therefore, the decision which is challenged in this petition is the result of nonapplication of mind on the part of the respondents as averred.

9. In the aforesaid background, the petitioners have requested for the following reliefs: "18. The petitioners therefore humbly pray that YOUR LORDSHIPS BE PLEASED to issue a writ of or in the nature of mandamus and/or certiorari and/or prohibition and/or any other appropriate writ, order or direction:

(a) to admit this petition and to allow the same by issuing notice for final disposal on returnable date;

(b) to quash and set aside the impugned order of termination dated 18112016 passed by the respondent No.2 as per AnnexureC;

(c) to direct reinstatement and continuation of the petitioners in service as Lecturers of Electronics & Communication Engineering under the respondents with all consequential benefits of continuity and others, as if the Page 4 of 17 HC-NIC Page 6 of 19 Created On Sun Aug 13 06:15:05 IST 2017 6 of 19 C/SCA/19423/2016 ORDER impugned order was never passed;

(d) to hold and declare and direct that the respondents are duty bound to sanction 279 posts of Lecturers of Electronics & Communication Engineering for intake of students of 1860 as per the AICTE's norms and the petitioners are required to be continued in service until all the said posts are actually filled up by regular appointments;

(e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, be pleased to stay the further operation of the impugned order date 1811 2016 passed by respondent No.2 as per AnnexureC and to allow the petitioners to discharge duties and to draw salaries as they were doing prior to the passing of the impugned order;

(f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, be pleased to direct the respondents to place on record the actual facts and figures of the number of Lecturers of Electronics & Communication Engineering required to be appointed as per AICTE's norms, the number of Lecturers actually filled up by regular recruitment, by Adhoc appointments and by contractual appointments, and the number of vacancies still available as on 17 112016, that is on the day before the date of passing of the impugned order, and how many appointees have actually joined the service out of 71 appointment orders issued on 2710 2016;

(g) to grant any appropriate and just relief/s;"

10. Respondent No.2 has filed affidavitinreply contending inter alia that a common reply is given for all Engineering Branches. It is not in dispute that pursuant to the advertisement issued by the GPSC, the lecturers in different engineering streams which include Electronics Page 5 of 17 HC-NIC Page 7 of 19 Created On Sun Aug 13 06:15:05 IST 2017

7 of 19 C/SCA/19423/2016 ORDER engineering and Computer Engineering had been advertised. Sanctioned posts of Electronics & Communication stream is 76. It also has reference of Letters Patent Appeal No.1085 of 2014 where the State Government challenged the order of learned Single Judge wherein it has directed not to replace adhoc employees with another set of adhoc employees.

10.1 The Division Bench confirmed and observed that those petitioners would not be entitled to claim for continuation of their services. It is their say that pursuant to the advertisement of 2013, the GPSC conducted the examination and recommended the candidates to the State Government for appointment.

10.2 According to the State, 16 lecturers have to be relieved out of 59 adhoc and contractual lecturers on the basis of last come first go principle and other 53 lecturers have been relieved due to lack of teaching workload and less number of students. It is further their say that total strength of students is only about 46% of the total sanctioned strength. It is further Page 6 of 17 HC-NIC Page 8 of 19 Created On Sun Aug 13 06:15:05 IST 2017 8 of 19 C/SCA/19423/2016 ORDER the case of the respondent authority that it had consulted the GPSC for the post of lecturers in the year 2015 and advertisement came to be published on 24.11.2015 for the post of lecturers on regular basis. In wake of nonavailability of vacant post at the moment and as contractual employees cannot claim right of regularization as a matter of right, their grievance is prematured.

11. On direction of the Court, the AICTE has been impleaded as party respondent. Dr. C.S.Verma, Regional Officer, Central Regional Office, All India Council for Technical Education, Bhopal has filed his affidavit stating therein that the ACITE being a regulatory and parent body and established under the AICTE Act, 1987, has laid down the regulations and every technical institution approved by AICTE is required to follow the regulations of the AICTE and any breach thereof would attract punishment under the Chapter IV of (Approval Process Handbook). Therefore, it is not open for any institution to violate the regulations and norms prescribed by the AICTE from time to time. It further has Page 7 of 17 HC-NIC Page 9 of 19 Created On Sun Aug 13 06:15:05 IST 2017 9 of 19 C/SCA/19423/2016 ORDER stated that for proper planning and coordinated development of the technical education system throughout the country and also promotion of qualitative improvement of technical education in relation to the planned quantitative growth and also to ensure proper maintenance of norms and standards in the technical education system, the AICTE has been publishing Approval Process Handbook for every academic year detailing the conditions of approval and procedure to process the application and/or promoters. He further has stated that the AICTE, in exercise of its powers conferred under Regulation 4.3 of the Regulations, published the Approval Process Handbook, which provided for process of seeking approval for starting new Technical Institution, extension of approval to exiting approved Technical Institutions, introduction of new technical courses, variation of intake of technical courses etc. He further submitted that in case of violation of any rules, regulations and provisions, as prescribed under Approval Process Hand Book published from time to time, Page 8 of 17 HC-NIC Page 10 of 19 Created On Sun Aug 13 06:15:05 IST 2017 10 of 19 C/SCA/19423/2016 ORDER then in that event the AICTE can take penal action as provided under the provisions of Chapter IV of the Approval Process Handbook. The institutions recognised by the AICTE are under the obligation to follow all the rules, regulations and provisions of Approval Process Handbook published from time to time. It is also submitted that the institutions recognised by the AICTE will have to maintain the ratio as mentioned in Approval Process Handbook.

12. Rejoinder affidavit has been filed which may not require further elaboration.

13. Learned advocate Mr. Pujara appearing for the petitioners has made detailed submissions and they have been adopted by learned advocate Mr. Soni for the petitioners. Emphasis on the part of the petitioners is that there is no rational for termination of service of all the petitioners. It has been further emphasized by the learned advocate that norms which have been decided by the AICTE for the faculty requirement and the cadre ratio cannot be unilaterally changed and defaced by the respondent authority. By virtue of Page 9 of 17 HC-NIC Page 11 of 19 Created On Sun Aug 13 06:15:05 IST 2017 11 of 19 C/SCA/19423/2016 ORDER the statutory provisions and the regulations set for all technical institutions that the said ratio is decided. He, therefore, has urged that the action on the part of the respondent authority of removing all persons, who were on contractual basis is deserving interference. It is further urged that nonobservance of those regulations and provisions would fetch penal actions, and therefore also, the impugned order deserves to be quashed.

14. Learned Assistant Government Pleader Mr.Raval appearing for the State has urged that there are no intake of students so far as the Electronics and Communication Engineering is concerned. Therefore, to insist on continuing the contractual employees even when there is no work is to burden the public exchequer. He further has urged that the respondent authority needs to accommodate those who have been regularly selected after the GPSC conducted examination and 71 candidates have been already selected. He has urged that this is not a matter where the Court needs to interfere.

Page 10 of 17 HC-NIC Page 12 of 19 Created On Sun Aug 13 06:15:05 IST 2017 12 of 19 C/SCA/19423/2016 ORDER

15. Learned advocate Ms.Nisha Parikh representing the AICTE has argued along the line of affidavitinreply filed by her officer.

16. This Court on earlier occasion, while deciding other matters in the case of the employees in the field of Mechanical and Electrical Engineering, interfered with the decision dated 8.12.2016, directing the State authority to reinstate the petitioners with all consequential benefits till the regular appointees are actually made available through the GPSC and once the process of appointment of regularly selected candidates gets completed or till the petitioners can claim the continuation of service on account of the selection.

17. While parting, certain observations made by this Court in that order require reproduction at this stage: "9.0 While parting, it is being repeatedly emphasized that in the process of filingup sanctioned posts, which are occupied by the ad hoc contractual employees by the regularly selected candidates, the respondent authorities are expected to undertake the process of ending of terms of those on ad hoc / contractual basis, being conscious of the plight of the students for whose benefits such norms have been framed and set out by the Page 11 of 17 HC-NIC Page 13 of 19 Created On Sun Aug 13 06:15:05 IST 2017 13 of 19 C/SCA/19423/2016 ORDER AICTE over and above the need of appreciating the letter and spirit of the ratio laid down by this Court in its correct perspective rather than being in extreme haste of relieving those, who are genuinely found to be working diligently. As noted above, so far as the present petitioners are concerned, there is not a whisper uttered about their conduct or any adverse remark and since their appointment, they have been discharging their duties diligently. Direct service is permitted."

18. This Court needed to start with these observations in wake of the fact that so far as the branch of Electronics and Communication Engineering is concerned as stated in the affidavitinreply by the State, the total number of the candidates selected are 71. Considering the sanctioned strength as per the State OF 205 for giving appointment to all 71 candidates in wake of existing vacancy only 16 persons' services are only required to be terminated. Instead of that services of all those who were working on contractual basis, came to be terminated. This was done essentially with an emphasis that the workload is less and there are less number of students in the said stream. The total strength of the students is only 46 Page 12 of 17 HC-NIC Page 14 of 19 Created On Sun Aug 13 06:15:05 IST 2017 14 of 19 C/SCA/19423/2016 ORDER existing. There are no new degrees and after admission in the new academic term as there was no requirement for these persons. This Court noticed that as per the AICTE norms, the sanctioned strength is being determined as mentioned in the affidavitinreply by the Central Regional Officer prior to initiation of any new technical institution. Introduction of new technical courses would also require adherence to the rules and regulations and the provisions, as prescribed under the Act so also under the said Handbook published from time to time. It further specifically makes mention of the ratio as is provided under the said Handbook and under the regulations.

19. On verification, a query was raised by this Court to the respondent authority, it has been answered by learned Assistant Government Pleader for the State that no process has been initiated for making any change in the total sanctioned posts which at present according to the State is

205. The Court is not to go into the aspect of the challenge to the sanctioned strength which Page 13 of 17 HC-NIC Page 15 of 19 Created On Sun Aug 13 06:15:05 IST 2017 15 of 19 C/SCA/19423/2016 ORDER has been also raised for and on behalf of the petitioners herein. According to learned advocate appearing for the petitioners as per the sanctioned number of students, the post should be 279 and not 205. It is a separate challenge in which the Court does not need to enter into, at this stage. Even going by the number which has been given by the State Government of 205, this Court noticed that after regularly selected candidates are accommodated, which is 71 in number, only 16 persons are required to be terminated on the last come first go basis. As it appears from the record out of 71, only 69 have reported, the requirement of termination would arise only in case of 14 (fourteen) candidates who are junior most.

20. The action of the respondent State when viewed from entire gamut of facts, it has used this occasion of regular appointment as an opportunity to remove those who have been working on contractual basis, included the person who has been working for 27 years. His services came to be terminated along with the service of number of Page 14 of 17 HC-NIC Page 16 of 19 Created On Sun Aug 13 06:15:05 IST 2017 16 of 19 C/SCA/19423/2016 ORDER other petitioners who have put in almost 3 to 5 years of service. The State of course is entitled to manage its financial affairs but at the same time, it is obligatory on its part to act as per the policies which categorically lay down certain dictum. Moreover, so far as in norms set out by the AICTE also there are detailed provisions under which every institute is required to govern itself and, therefore, even if there is any requirement of making any change either in the sanctioned post or in clubbing the shifts or enhancing the workload, the AICTE would into force. Restricting the challenge of the present petitioners to the sanctioned post alone and without entering into other aspects at this stage, it is uncontroverted fact that out of the sanctioned strength of 205 in number for Electronics and Communication Engineering, 45 contractual lecturers on the basis of last come first go can continue. Therefore, the action on the part of the State without even making any move for reduction in the sanctioned post of 205 in number, merely on the ground of less intake of Page 15 of 17 HC-NIC Page 17 of 19 Created On Sun Aug 13 06:15:05 IST 2017 17 of 19 C/SCA/19423/2016 ORDER students in the midst of the term and that too after sending the indent to the GPSC for filling up 31 regular post, would deserve interference.

21. In view of the forgoing discussions, petition is partly allowed quashing and setting aside the impugned order of termination dated 18.11.2016 passed by respondent No.2. Without individually examining the case of the petitioners, it is being directed that all those petitioners who are the junior most shall need to make a way for the regularly selected employees on the principle of last come first go.

22. Rest shall be reinstated with all consequential benefits till the regular appointments are made or there is any change made by the AICTE at the behest of the respondent State in the sanctioned strength granted for Electronics & Communication Engineering.

23. This arrangement shall, in no manner, confer any right on the post as has been directed in the earlier order. Once the process of appointment of regularly selected candidates is completed as has been started in the year 2015, Page 16 of 17 HC-NIC Page 18 of 19 Created On Sun Aug 13 06:15:05 IST 2017 18 of 19 C/SCA/19423/2016 ORDER they shall make way for regularly appointed candidates. Two seats are likely to be filledin by waitlisted candidates, there will be requirement of termination of 16 persons. If there are no waitlisted candidates, those two seats which are vacant shall continue to be governed by the arrangement which is being directed in case of the rest of the contractual employees.

24. As regularly selected candidates shall be given place of their choice, the petitioners shall need to be transferred to those places which are vacant. No objection in that respect shall be raised and even otherwise this Court notices that in the petition memo itself, the petitioners have shown their willingness to serve anywhere in the State.

25. With this, the petitions stand disposed of.

This in no manner preclude the State to move the AICTE for reduction in the sanctioned post. Direct service is permitted.

(MS SONIA GOKANI, J.) SUDHIR Page 17 of 17 HC-NIC Page 19 of 19 Created On Sun Aug 13 06:15:05 IST 2017 19 of 19

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