Gujarat High Court
Maisuria Mahendra Bhagwandas And Ors. vs State Of Gujarat And Ors. on 28 August, 1989
Equivalent citations: (1990)2GLR719
JUDGMENT P.M. Chauhan, J.
1. Petitioners, graduates in Mechanical Engineering were appointed in 1985, 1986 and 1987 as the Assistant Lecturers in the post of Lecturers in Mechanical Engineering, in the pay scale of Rs. 650-1040, temporarily on ad hoc basis for the period of 11 months or till the G.P.S.C. selectees or regular appointees from the Head Office are available, whichever is earlier.
2. Petitioner in Special Civil Application No. 3754 of 1989, Maisuria Mahendra Bhagwandas, was appointed by the Principal, Dr. S. & S. S. Gandhi College of Engineering and Technical Education, Surat, respondent No. 3, by order dated December 20, 1985 and was subsequently continued by order dated December 22, 1986 on the same terms and conditions, by the Principal of the respondent No. 3. Petitioner in Spl.C.A. No. 3783 of 1989 K. M. Patel was appointed and continued by similar order, by copies of the orders are not produced by the petitioner. Petitioner in Spl. C.A. No. 3784 of 1989, A. G. Patel was appointed by order dated September 17, 1985 and was continued till further order. Petitioner in Spl. C.A. No. 3785 of 1989, R. M. Lumbhani was appointed by order dated February 8, 1986 and was continued on the same terms and conditions by order dated July 9, 1987 till further orders. Petitioner in Spl.C.A. No. 3786 of 1989, R. S. Solanki, was appointed by order dated September 28, 1985 by the respondent No. 3 and was continued on the same terms and conditions by order dated December 23, 1986, Petitioner in Spl.C.A. No. 3787 of 1989, N. M. Kapadia, was appointed by order dated September 17, 1985 by the said Principal was continued on the same terms and conditions by subsequent order dated September 25, 1986 till further orders. Petitioner in Spl.C.A. No. 3808 of 1989 G. D. Bassan was appointed by order dated August 5, 1987 by Govt. of Gujarat Education Department, Gandhinagar, on purely temporary basis till the GPSC selectees are available or till the said vacancy may be filled in by regular appointment or for the period of 11 months on ad hoc basis. The petitioner in Spl.C.A. No. 3809 of 1989 M. R. Desai was appointed by order dated March 29, 1985 by the Principal, the respondent No. 3, and was continued till further orders, by order dated March 20, 1986 by the respondent No. 3 on the same terms and conditions as stated above. Petitioner in Spl.C.A. No. 5287 of 1989, B. C. Tharar, was appointed as the Lecturer in Gujarat Education Service, Class II, by order dated July 22, 1986, on purely ad hoc basis for the period of one year or till the GPSC selectee is available, whichever is earlier, and was posted as Lecturer at Government Polytechnic College, Porbandar, by the Under Secretary, Education Department, Government of Gujarat, and is continued by order dated August 17/24, 1987 by the Director of Technical Education, on the same terms and conditions and on the expectation of the approval of that order by the Government. Petitioner in Spl.C.A. No. 5288 of 1989, P. C. Salvi, was appointed by order dated September 1, 1987 as Lecturer in Mechanical Engineering in Gujarat Education Service Class II and was posted at R. C. Technical Institute, Ahmedabad by the Section Officer, Education Department Government of Gujarat, on purely temporary and ad hoc basis for the period of 11 months or till the GPSC select may by available, which ever is earlier. Petitioner in Spl.C.A. No. 5216 of 1989, S. M. Bhatt was appointed by order dated August 5, 1987, by the Section Officer, Education Department, Government of Gujarat, in Gujarat Education Service, Class II, on purely temporary basis for the period of 11 months or till the selectee by the G.P.S.C. may be available, whichever is earlier, and was posted as Government Polytechnic, Palanpur. The petitioners in all the petitions were appointed in Gujarat Education Service, Class II, either by the Principal of the College or by the Director of Technical Education or by the Government on purely temporary and ad hoc basis for a period of 11 months or till the selectees by the G.P.S.C. are available, whichever is earlier. According to the petitioners, even though it was specifically stated in the appointment orders that they were appointed on the said terms and conditions they have right to continue in the service, as after the period of 11 months of their appointment, the petitioners are continued on the same terms and conditions.
3. Gujarat Public Service Commission, by advertisement published on or about August 15, 1987, invited application for 60 posts of Lecturer in Mechanical Engineering & Placement & Training Officer (R.L.) in Gujarat Education Service Class II. Out of 60 posts, 17 posts are reserved for SC/ST/S & EBC candidates. The petitioners applied pursuant to that advertisement, but some of them were not invited for interview probably because they did not satisfy the requisite eligibility criteria, some of them contested, but are not selected. Petitioner S. M. Bhatt in Spl. C. A. No. 5316 of 1989 is selected and is included at Sr. No. 17 in the Waiting List. The GPSC sent the list of the selected candidates to the Government of Gujarat on or about March 13, 1989. The Government in the name and by order of the Governor of Gujarat by order dated March 18, 1989 appointed 42 selected candidates as Lecturers in Mechanical Engineering, Gujarat Education Service, Class II and posted then in various Engineering Colleges/Technical Institutes in State of Gujarat.
4. It transpires that the Lecturers who were posted in the Technical Institutes are transferred and are being posted in various Colleges. As the Lecturers in Mechanical Engineering, Gujarat Education Service Class II are now selected, the petitioners apprehending the termination of their services filed writ petitions in this Court. Even though the petitioners stated that they apprehended termination, it is now clear that their services are being terminated as they are appointed on ad hoc and purely temporary basis and subject to availability of the GPSC selectees.
5. In all the petitions the common contentions are that even though the petitioners were appointed on ad hoc basis, temporarily and on condition that their services were liable to be terminated on the availability of GPSC selectees, they have a right to continue and their services cannot be terminated by the respondents as they were continued in service after appointment and were made to understand that they were sent for training for about one month, provident fund was deducted from their pay, benefit of Leave Travel Concession was extended to them, Insurance amount was deducted from their pay and they were given the earned leave. They also contended that in similar situation, staff of the Civil Engineers, Public Works Department, was absorbed and therefore, they should also have been absorbed; but they are being discriminated by the Government. The petitioners accordingly assert their right to continue in the service, contending that the termination would violate the provisions of Articles 14 and 16 of the Constitution of India.
6. This Court, at the initial stage restrained the respondents from terminating the services of the petitioners, but subsequently modified the order and the petitioners are protected till the GPSC selectee takes over the charge and specific direction is issued that the petitioners should have over the charge as and when the GPSC selectee intends to take over the charge of the respective post.
7. In response to the notice, Mr. B. R. Bakshi, Jt. Director of Technical Education, filed Affidavit-in-reply dated July 13, 1989, on behalf of the respondents. It is contended by the respondents that the petitioners were appointed on purely temporary and ad hoc basis as Assistant Lecturers against the post of Lecturers and their services were liable to be terminated as and when the same were no more required by the respondents. The petitioners were informed of the said terms and conditions and they accepted the appointment on the said terms and conditions. It is also contended that there is no post of Asstt. Lecturer in Mechanical Engineering in Colleges/ Polytechnics in the State of Gujarat and the only posts available with the College/Polytechnics are of the Lecturers. The posts are required to be filled in by giving the appointment to the eligible candidates who are selected through the GPSC. The petitioners are neither eligible for the post of Lecturers nor they have any legal right to claim to hold the post of Lecturer and they have no right to continue on the post of Asstt. Lecturers as the said arrangement was for temporary period. The Gujarat Public Service Commission has completed the process of selection for the post of Lecturers and prepared select list of 42 candidates and these 42 selectees are required to be accommodated to the post of Lecturers in the different Engineering Colleges/Technical Institutions in the State of Gujarat. But because of the interim relief granted in favour of the petitioners continuing them in service, though there is no work for the Asstt. Lecturers, the Department is facing difficulty to issue rotation/request transfer of the Lecturers working in the different Colleges in the State and several administrative inconveniences are being caused to the respondents. It is specifically asserted that the order of termination of services of the petitioners have been issued on or about June 6/7, 1989. According to the respondents the petitioners have no right to continue in the service as they were appointed and ad hoc basis, temporarily on condition that their services will be terminated on the availability of candidates selected by the GPSC.
8. Admittedly, the petitioners were appointed in Gujarat Education Service, Class II in the pay scale of Rs. 650-1040, which is within the purview of the consultation of the Gujarat Public Service Commission. Clause (3) of Article 320, Constitution of India, requires the consultation of the Public Service Commission on all matters relating to methods of recruitment to Civil Services and for civil post, on principles to be followed in making appointments to Civil Services and posts and in making promotions and transfer from one service to another and on the suitability of candidates for such appointments, promotions or transfers. Proviso to Clause (3) of Article 320 the Constitution of India, empowers the Governor to make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for the Public Service Commission to be consulted. In exercise of the powers under proviso to Clause (3) of Article 320, Constitution of India, the Governor of Gujarat has enacted. "The Gujarat Public Service Commission" (Consultation) Regulations, 1960. Regulation 3 provides that it shall not be necessary to consult the Commission in any of the matters specified in paragraphs (a) and (b) of Clause (3) of Article 320 of the Constitution in respect of the posts and services specified in the Schedule, and temporary appointments to all other posts and services for a period not exceeding or not likely to exceed one year. The post of Asstt. Lecturer in Mechanical Engineering, Gujarat Education Service, Class II, is not included in the Schedule and therefore, it be filled in only after the Public Service Commission has selected the candidates for the appointment on the basis of suitability. As there is no dispute that the posts in question are within the purview of consultation of the Gujarat Public Service Commission, it is not necessary for me to elaborate this aspect.
9. It is, however, clear that when the Public Service Commission is requested to select. It is the duty of the Commission with the help of experts in the particular subject to hold interview and to find out and select the candidates having requisite qualifications and experience fit to be recommended to the Government for appointment for the said post. While observing as above, the Supreme Court in the case of M. C. Bindal v. R.C. Singh further observed that under Article 320(3)(a) and (b), it is the duty of Public Service Commission to consider and to get itself satisfied as to which of the candidates has fulfilled the requisite qualifications specified in the advertisement. It is also observed that it is the constitutional requirement envisaged in Article 320 that the Commission will have to perform the duty of recommending the candidate fulfilling all the requisite qualifications for the post to the Government for being considered for appointment to the post concerned. It is of course, a well settled legal position that the duty to consult the Commission in the matter of appointment to civil posts by the Government is not mandatory but directory and as such the absence of consultation with the State Public Commission does not render any appointment made by the Government in civil posts invalid or illegal.
10. It is clear that while issuing the appointment and/or posting orders, the authorities as well as the petitioners were conscious of this fact, and therefore, specific mention was made in the appointment orders of the petitioners and the petitioners also accepted the posts with that conditions. It is also clear that for want of GPSC selected candidates the petitioners were appointed on purely temporary and ad hoc basis, with specific conditions that they will have to vacate the post, on availability of the GPSC selectees. The petitioners, therefore, now cannot make any grievance against their termination as the GPSC selectees are now available and are required to be posted.
11. The right of such ad hoc or irregular appointees to continue in the service, is no more res Integra so far as this Court is concerned Division Benches of this Court, at least in two judgments, viz., in Bhartiben Nanubhai Balsara v. State of Gujarat and Ors. 1989 (1) : XXX (1) GLR 659 and in Association of Assistant Engineers, Gandhinagar and Ors. v. State of Gujarat and Ors. 1988 (2) GLH (UJ) 1 : 1988 GLT 395, (Special Civil Application Nos. 5993, 6017, 6018 and 6530 of 1986) have settled the legal position regarding the right of ad hoc appointees. In Association of Asstt. Engineers (supra), the facts were practically similar to the facts and contentions of the instant matters. The Assistant Engineers were appointed by Irrigation Department without GPSC being consulted, on purely ad hoc basis for the period of one year till the candidates selected by the GPSC were available, which were earlier. The terms and conditions of appointment were practically similar to one under consideration. The posts of the Assistant Engineers were within the purview of consultation of the GPSC. Subsequently, the GPSC held interviews and selected the candidates and some of the petitioners of that case were also included in the Select List/Waiting List. Certain Assistant Engineers raised dispute and asserted their right to continue and to hold the post as they had been appointed and had served the department for particular period. Their contentions were repelled by the Division Bench of this Court observing that it was only because of want of GPSC selected candidates that purely temporary and ad hoc appointments were permitted till regularly selected candidates became available and the GPSC selected candidates being available, the ad hoc appointees were being asked to make room for them, and "to permit their continuance in service would not only be in violation of the term contained in paragraph 4 of the letter of appointment but would also amount to a breach of the requirements of Article 320 of the Constitution and no Court of law can permit such infraction". The ratio of the judgment is that such irregular appointees, without being selected by the competent authority, had no right to continue in service, nor can they be protected by the Court of law.
12. In Bhartiben's case (supra), the Division Bench of this Court was considering the case of Clerks and Typists, who were appointed by the different Heads of Departments who were otherwise competent to appoint, but without adhering to the relevant provisions of the recruitment rules. Such irregular appointees were in service for several years. They were appointed as the selectees by the Selection Committee under rules that were not available. Subsequently the selection was made under the provisions of the relevant rules and the selectees were being appointed as clerks/typists. The irregularly appointed clerks/typists asserted right to continue in the service. This Court considering the provisions of Articles 14 and 16 of the Constitution of India, relevant rules and also several decisions of the Supreme Court, held that the irregularly appointed clerks/ typists had no right to continue in service and they should vacate for the regularly appointed clerks and typists. The Division Bench of this Court observed that purpose, object and intent of the statutory recruitment and appointment Rules enacted in exercise of powers under Article 309 Constitution of India, is (1) to afford equal opportunity for public employment or appointment to the eligible similarly situated competing persons, (2) to draw the best available elements out of the competing candidates, (3) to reserve post for scheduled castes, scheduled tribes, socially and economically backward classes, physically handicapped and ex-service men, and (4) to provide impartial selection by the Selection Committee consisting of certain district heads of the Departments. An employment or appointment to the public service de hors or in violation of the recruitment or appointment Rules, will not only offend Articles 14 and 16 of the Constitution of India, but also frustrate the very purpose of enacting the Rules, leading to frustration and disappointment to eligible meritorious youths. Such a practice is illegal irregular and deserves to be discouraged and prevented. The statutory Rules are required to be followed scrupulously for the purpose of selection of candidates and for appointments. Any appointment to any post de hors the Rules or without being selected as per statutory Rules should be held as irregular and invalid. Referring to the provisions of Articles 14 and 16 of the Constitution of India, it is observed that the said provisions guarantee the fundamental right of equality before law and equality of opportunity for all citizens in all matters relating to employment or appointment to any office under the State. Article 16 is only an incident of the general concept of equality enshrined in Article 14 of the Constitution in the matters of appointment and employment to the public office. Equality guaranteed by Article 16 of the opportunity to apply for the appointment to the post under the State and to be considered on merits. Any employment or appointment to the public office under the State will offend guarantee of equal opportunity if the appointment or employment is made in violation of the provisions of Articles 14 and 16 of the Constitution of India. Admittedly, in the instant case the appointments were not made by the competent authority under the relevant Rules for selection by the GPSC, and therefore, the petitioners have no right to continue to hold the office and should vacate for those who are selected by the GPSC and appointed by the Government.
13. Admitted, the petitioners were appointed for a particular period with clear understanding that they will have to vacate when regularly selected candidates will be available. Their appointment is purely temporary and ad hoc. The dictionary meaning of 'ad hoc' in Webster's International Dictionary is 'pertaining to or for the sake of this case alone'. In the Random House Dictionary, the meaning is 'for this special purpose with respect of this subject or thing'. The Full Bench of Punjab & Haryana High Court in S. K. Verma and Ors. v. State of Punjab and Ors. considered the case of such employee and observed that Article 14 or 16 are attracted only when equals are treated unequally or to put it in reverse unequals are treated equally. The ad hoc employees cannot claim any hostile discrimination qua some unspecified person, who are not even parties to the petition and who in some eventuality may late come to hold the posts, which they are being asked to vacate. An ad hoc employee with an existing service record cannot be deemed in the eye of law as identically equivalent to an aspirant for the post which he is likely to vacate. Article 16 could not even remotedly be invoked. The appointment of the irregularly appointed petitioners cannot be continued for indefinite period as they were not appointed under the provisions of the Rules. They should, therefore, vacate for the regularly selected candidates under the Rules by the competent authority.
14. Mr. Vasawada, learned Advocate appearing for the petitioners, submits that the judgment in Bhartiben's case (supra) was challenged before the Supreme Court in Civil Appeals Nos. 9058 to 9064 of 1988 and the Supreme Court directed to give opportunity to some of the candidates who were not given opportunity to appear for the test. Closely, considering the judgment of the Supreme Court it is clear that the law laid down by this Court in Bhartiben's case (supra) is virtually, confirmed by the Supreme Court. However, the Supreme Court felt that, it is just to give opportunity to those who did not get the opportunity to appear in the test and therefore, the Supreme Court directed the State to give opportunity to such persons and consider them on merits. It was made clear that those who were already called for interview and were rejected have no right for even being called for interview. Supreme Court observed "with regard to ad hoc employees who have already appeared and have not been selected they will not be entitled to appear before the Selection Committee and their services may be terminated in accordance with law".
15. In support of the submission that the petitioners have right to continue to hold the posts, Mr. Vasawada, learned Advocate for the petitioners referred the judgment in Ratanlal and Ors. v. State of Haryana and Ors. in which the point for consideration was as to whether it was open to the State Government to appoint teachers on ad hoc basis at the commencement of the academic year and terminate their services before the commencement of next summer vacation or earlier and to appoint them again on ad hoc basis at the commencement of the next academic year. Supreme Court observed that the ad hoc teachers were unnecessarily subjected to an arbitrary 'hiring and firing' policy of adhocism followed by the State Government for a long period and that has led to the breach of Articles 14 and 16 of the Constitution of India and such a situation should not be permitted to last longer. The Supreme Court, however, directed the State Government to tale immediate steps to fill up, in accordance with the relevant rules, the vacancies in which teachers were working on ad hoc basis and to allow those teachers who were holding the post on ad hoc basis to remain in those posts till the vacancies were duly filled up. These observations, if considered minutely, are rather against the petitioners. The directions of the Supreme Court that the teachers should be allowed to be continued in the post till the vacancies are duly filled up by regularly appointed teachers, means that such teachers had no right to hold the post permanently. So far as the instant matters are concerned, the petitioners were appointed on purely ad hoc and temporary basis with clear understanding that they will have to vacate when the regularly appointed persons are available. The petitioners, therefore, cannot make any grievance against their termination, nor they are protected under any relevant provision of the Constitution or under any law.
16. The contention of the petitioners that they were treated as regular employees and were extended all the benefits, viz., earned leave, Leave Travel Concession, Medical Allowance, deduction of Provident Fund and Insurance premium from their pay, and therefore, they should be considered as regularly appointed Lecturers in Mechanical Engineering, Gujarat Education Service, Class II, on long term basis, cannot be accepted as such benefits are being given to almost all the employees of the Government. If such benefits would not have been given to the petitioners then they would have made grievance for discriminating them. Merely because such benefits were extended to them, that does not give them any right of being considered as permanent employees.
17. It is asserted for the petitioners, G. D. Bassan, M. R. Desai, P. C. Salvi and S. M. Bhatt, in Spl. Civil Application Nos. 3808 of 1989, 3809 of 1989, 5288 of 1989 & 5316 of 1989 respectively, that they were appointed in the name and by order of Governor of Gujarat, by the Government in Education Department and therefore, they should be treated as regular appointees to the post of Lecturers in Mechanical Engineering, Gujarat Education Service, Class II, by the competent authority, and so far as others are concerned, even though they were appointed by the Principal of the College or the Director of Technical Education, their appointment was not objected to and virtually approved by the Government, and therefore, they have right to continue on the posts held by them. It is abundantly clear that in the orders by the Government as well in the orders issued by the Principal of the College or the Director of Technical Education, the petitioners were appointed on purely ad hoc and temporary basis for a particular limited period or till the candidates selected by GPSC may be available. What is important is selection by the competent authority which is GPSC and the appointment is required to be made according to the provisions of the rules. From the List produced in Special Civil Application No. 5316 of 1989, it is clear that the GPSC has now selected 42 such Lecturers in Mechanical Engineering, Gujarat Education Service, Class II, and the Government on accepting the recommendations of the GPSC has appointed them.
18. Mr. Vasawada, learned Advocate for the petitioners also contended that some members of the staff of the Civil Engineer, Public Works Department, who were similarly and identically situated and were serving under the Public Works Department, were subsequently absorbed in the Education Department, and therefore, the petitioners should also be absorbed. Even if that is accepted to be true, that would not create any right in favour of the petitioners. Committing wrong by Government in one matter would not create right in favour of the other persons and the Government cannot be compelled to repeat such wrong. The petitioners can assert only their positive right and cannot get any benefit of the wrong or mistake committed by the Government. By this, I do not mean to observe that it is established that any such wrong was committed by the Government or that the Civil Engineers were absorbed in violation of the constitutional provisions or the rules.
19. Mr. Vasawada, learned Advocate for the petitioners submitted that one matter in which Dr. V. N. Shah is the petitioner, Special Civil Application No. 2529 of 1986, is admitted by this Court, in which the petitioner was appointed on ad hoc basis, and therefore, this matter should also be admitted. There cannot be any comparison. Each matter is required to be considered on its merits and the relevant facts and the law.
20. By amendment, the Gujarat Public Service Commission was sought to be added as a party and it was sought to be contended that some of the candidates who had submitted the applications were intimated but subsequently their interviews were cancelled and that act of the GPSC is not legal and valid and therefore, the GPSC be directed to give one more chance for interview to such persons, but Mr. Vasawada, learned Advocate for the petitioners did not press this contention at the time of hearing of these matters and submitted that the petitioners will, if at all advised, file writ petitions challenging that decision of the Gujarat Public Service Commission. Mr. Vasawada, rightly made the statement as any challenge to the decision of the Gujarat Public Service Commission is an independent cause of action involving the different set of facts and contentions and the relevant law. That aspect is not considered in this judgment and the petitioners are at liberty to challenge the decision of the Gujarat Public Service Commission for not inviting some of the petitioners for interview, if they so desire.
21. It is, however, clear that the public advertisement was issued specifying the requisite qualifications, etc., for the post of Lecturer in Mechanical Engineering. Gujarat Education Service, Class II, and admittedly the petitioners had submitted the applications and all of them, except the petitioner S. M. Bhatt in Spl.C.A. No. 5316 of 1989 who is selected and included in the Waiting List at Sr. No. 17, have not been selected. The petitioners are, therefore, not considered either eligible or suitable by the Gujarat Public Service Commission for the said post and for that reasons also they have no right to continue on the said post or to hold the said post.
For all these reasons the petitions deserve to be dismissed. It is, however, just to direct the respondents to continue the petitioners who are selected and included in the Select List/Waiting List and similar other ad hoc appointees who are included in the Select List/Waiting List for the post of Lecturers in Mechanical Engineering, Gujarat Education Service, Class II, in available vacancies. So far as the ad hoc appointees already included in the Select List/Waiting List, are concerned, they should be adjusted first as per their serial number in the Select List/Waiting List against available vacancies, if any and after that other ad hoc appointees be adjusted against the available vacancies for the post for which they are appointed till the GPSC selectees or regular appointees are available. For the ad hoc appointees, other than those who are included in the Select List/Waiting List, their seniority in the appointment on ad hoc basis should be maintained and the principle of last come first go should be followed. This will, however, not create any right in favour of the petitioners or similarly situated persons who are directed to be adjusted against the vacancies available, to continue or to hold the post and they will have to vacate the post when the GPSC selectees or regularly appointed Lecturers in Mechanical Engineering, are available. With these observations all these petitions are dismissed interim relief vacated. Notice in each matter is discharged with no order as to costs.