Gujarat High Court
Daxa Prabhudas Nimavat vs Commissioner Of Higher Education & 3 on 30 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2352/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2352 of 2014
With
SPECIAL CIVIL APPLICATION NO. 11432 of 2013
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DAXA PRABHUDAS NIMAVAT....Petitioner(s)
Versus
COMMISSIONER OF HIGHER EDUCATION & 3....Respondent(s)
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Appearance:
MR DP JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR. ANTANI, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 ,
4
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/03/2016
COMMON ORAL ORDER
1. As the issues raised in both the writ applications, more or less, are interrelated, those were heard analogously and are being disposed of by this common judgment and order.
2. The Special Civil Application No.2352 of 2014 is treated as the lead matter.
3. By these writ applications, the petitioner who was serving as an ad-hoc lecturer in the Government College, has prayed for the following reliefs;
"(A) This Honourable Court be pleased to admit and allow this petition.Page 1 of 8
HC-NIC Page 1 of 8 Created On Fri Apr 01 01:20:13 IST 2016 C/SCA/2352/2014 ORDER (B) This Honourable Court be pleased to issue appropriate writ, order or direction including writ in the nature of mandamus and quash and set aside the order dated 17.1.2014 passed by the respondent No.1- Commissioner of Higher Education and order dated 24.1.2014 passed by the respondent No.2-Principal, R.L. Lalan College, Bhuj and petitioner be extended the benefits of Resolution dated 23.6.2009.
(C ) During the pendency, hearing and/or final disposal of this petition present petitioner be extended the benefits of Resolution dated 23.6.2009.
(D) During the pendency, hearing and/or final disposal of this petition this Honourable Court be pleased to stay order dated 17.1.2014 passed by the respondent No.1- Commissioner of Higher Education and order dated 24.1.2014 passed by the respondent No.2-Principal, R.L. Lalan College, Bhuj.
(E) This Honourable Court be pleased to grant any other and further relief/s as may be deemed fit in the facts and circumstances of the case."
4. The facts of this case may be summarized as under;
4.1 The petitioner seeks to challenge the order dated 17th January, 2014 passed by the Commissioner, Higher Education, by which, the services of the petitioner came to be terminated.
4.2 It appears that the petitioner was serving as an ad-hoc lecturer past almost 20 years. It appears that in the year 2009, to be precise, by a Government Resolution dated 23rd June, 2009, a policy was introduced for the purpose of absorbing an ad-hoc lecturers in the grant-in-aid colleges. According to the said Government Resolution dated 23rd June, 2009, an ad-hoc lecturer was supposed to give an option to be absorbed in any grant-in-aid college. This was a one time arrangement introduced by the State Government.
Page 2 of 8HC-NIC Page 2 of 8 Created On Fri Apr 01 01:20:13 IST 2016 C/SCA/2352/2014 ORDER 4.3 For one reason or the other, the petitioner, who was serving in the Government College at Bhuj, was unable to exercise that option. However, she continued even thereafter to serve as an ad-hoc lecturer. In 2014, one candidate cleared the exam through G.P.S.C and was accommodated in the college where the petitioner was serving. Resultantly, the services of the petitioner came to be terminated. Essentially, the services were terminated because, in 2009, she had failed to exercise the option.
5. Mr. Antani, the learned AGP, has invited my attention to the affidavit-in-reply filed on behalf of the respondent No.1, wherein it has been stated as under;
"6. It is respectfully submitted that by way of the present petition the petitioner has prayed to quashing and setting aside order date 17.01.2014 passed by respondent no.1 whereby , the Commissioner of Higher Education, State of Gujarat has terminated the service of the petitioner who was an ad-hoc appointment as a regularly selected candidate was appointed by the GPSC.
7. It is respectfully submitted that the petitioner is an ad-hoc lecturer and admittedly the petitioner has not been selected by the Gujarat Public Service Commission. Only on the short ground that the petitioner has not fulfilled the provision of the recruitment rules of Gujarat Education Services (GES Class II) Collegiate Branch, the present petition is required to be dismissed. The petitioner has placed reliance on an order Annexure D to the petition dated 17.09.2008 passed in Special civil Application No. 2602 of 2008, the said order clearly mentions that as and when a Candidate regularly selected by the Gujarat Public Service Commission is available, it will be open for the respondent authorities to relieve the petitioner. This order clearly indicates that the petitioner can be relieved at any point of time when the department has a regularly selected candidate available from the Gujarat Public Service Commission.
Page 3 of 8HC-NIC Page 3 of 8 Created On Fri Apr 01 01:20:13 IST 2016 C/SCA/2352/2014 ORDER
8. It is respectfully submitted that the group of petitions were filed by the ad-hoc lecturers and this Hon'ble Court dismissed them vide order dated 15.07.2001. A Letters Patent Appeal No. 485 of 2002 filed against this order by the ad-hoc lecturers was also disposed on 11.12.2002. The Hon'ble division. bench held in para 26 that:
"Though these ad-hoc lecturers cannot be directed to be continued contrary to the recruitment rules, nor can they be Order to be regularized by any mode not warranted by the statutory rules governing the apointment to the cadre of Lecturer, GES Class II (Collegiate Branch), the facts and Circumstances of the case."
A copy of this order is attached to this petition vide Annexure E.
9. It is respectfully submitted that ad-hoc lecturers Shri R. R. Harshana and other challenged order of Letters Patent Appeal No. 485 of 2002 dated 11.12.2002 vide Civil Appeal No. 3028 of 2005 before Hon'ble Supreme Court which came to be dismissed.
10. It is respectfully submitted that the government framed transparent policy in accordance with the directives under these judicial proceedings vide Government Resolution GCO/152008/3862/KH/dated 23.06.2009 for the absorption of 201 ad-hoc lecturers in the grant-in-aid colleges. The present petitioner is listed at serial No.22 among the ad-hoc lecturers in Hindi between serial number 9 to 25 in the annexure to this resolution. All these lecturers of Hindi subject have exercised option to join grant-in-aid college and have resumed, except for the petitioner. The annexure to this resolution and to the proceedings of the option camp are annexed herewith as Annexure R-I (Colly).
11. It is respectfully submitted that a other similarly situated petitioner had filed a special Civil Application No. 6785 of 2009 before this Hon'ble Court challenging the government resolution dated 23.06.2009 in so far as it Page 4 of 8 HC-NIC Page 4 of 8 Created On Fri Apr 01 01:20:13 IST 2016 C/SCA/2352/2014 ORDER affected the service condition of those petitioner identically situated to the present petitioner and also for directions to treat the services of that petitioners as a regular candidate by protecting the service condition, including pay scale and seniority. This Hon'ble Court while dismissing the said petition was pleased to observe in paragraph 6 as under:
"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 Keshave Chandra Joshi (Supra) such a relief cannot be granted as held by the Hon'hle Supreme Court in the aforesaid decision ad-hoc in tune with the direction issued by the state government in the basic of Rs.8000. with other benefits such as Dearness allowances, Transport allowances, House rent allowances, Medical allowances. I further respectfully say that is the claim of the applicant-petitioner is to grant of benefits of the 6th pay commission, and pay perfection are accepted, it would be nothing but virtual regularization of the service of the applicant-petitioner, which in fact came to be turned down by the Hon'ble Division bench of this Hon'ble Court and by the Hon'ble Supreme Court. I respectfully say that if at all the applicant--petitioner is very much concerned with her right to live with human dignity which is a fundamental right guaranteed under Article 21 of the Constitution of India, than in that case, the applicant-petitioner ought to have given her option to be absorbed in any private aided colleges as has been done by the other similarly situated ad-hoc lecturers."
13. It is respectfully submitted that the government by way of resolution dated 03.08.2011 decided to approve benefits of ad-hoc services for the purpose of leave salary and pension only to the ad-hoc lecturers selected by the Gujarat Public Service Commission. Ad-hoc lecturers who opted for absorption in grant-in-aid colleges by way of "goodwill gesture" policy of resolution dated 23.06.2009 were extended the benefits of 6th Pay Commission as fresh appointment in the pay-band of Rs.15,600-39,100 with Additional Grade Pay of Rs.6000. It is further submitted that the ad-hoc lecturer who braced the goodwill gesture policy to get absorbed by Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Apr 01 01:20:13 IST 2016 C/SCA/2352/2014 ORDER fresh appointment in grant-in-aid in colleges were given the benefit of VIth pay commission as per the policy dated 23.06.2009, however, the petitioner herein has neither cleared the Gujarat Public Service Commission nor opted to get absorbed at the grant-in-aid college as per the goodwill gesture policy offered her by resolution dated 23.06.2009 and thereby choose to remain an adhoc lecturer bearing all the consequences thereof . 14 It is respectfully submitted that in a Special Civil Application No. 6785 of 2009 filed by identically situated adhoc lecturers, the hon'ble court in final order dated 08/.07.2009 (Annexure R-II) made the following interpretation:
"If the petitioner does not want to accept the appointment as per the Government Resolution dated 23.6.2009, in that case, petitioner has to face necessary consequences and he cannot claim, appointment on regular post on certain terms and conditions and on the other hand by not accepting the same, he has prayed for to continue him as ad hoc lecturer. If the petitioner does not want to accept the appointment on regular post as provided under the Government Resolution then he shall be continued as ad hoc lecturer and whatever consequences as ad hoc lecturer shall follow. "
15. It is respectfully submitted that as such the petitioner has no right because she has worked as an ad- hoc lecturer and has not selected by the Gujarat Public Service Commission. Ad-hoc appointees even otherwise does not have any rights and therefore they are not entitled to the benefits which are given to the regular appointees. The conduct of the petitioner is also required to be noted as she has neither cleared Gujarat Public Service Commission nor has chosen to get absorbed in a way opted by 198 out of 201 identically situated ad-hoc lecturers.
16 It is respectfully submitted that the petitioner admittedly was appointed as adhoc lecturer, has neither cleared the GPSC selection nor participated exercising choice offered her to get absorbed in the grant-in-aid college as per the policy dated 23.06.2009. The petitioner therefore at concluded stage of larger legal issues cannot reclaim (1) reinstatement or regularization of in service (2) salary as per VIth pay commission and (3) fresh appointment at grant-in-aid college under GR Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Apr 01 01:20:13 IST 2016 C/SCA/2352/2014 ORDER dated 23.06.2009.
17. In the present case a GPSC selectee has already been appointed in the place of the petitioner .employed adhoc. A copy of the notification dated 24.09.2013 is annexed herewith and marked as Annexure R-III.
18. It is respectfully submitted that it would also be pertinent to refer to order dated 24.1.2014 passed by the Commissioner of Higher Education giving detailed posting to Shri Bharatbhai Khemabhai Bavadia in the place of the petitioner. Shri Bharatbhai Khemabhai Bavadia has joined his duties at Shri R.R. Lalan College Bhuj on 25.1.2014 before the office hours. The copies of the order dated 24.1.2014 and letter dated 25.01.2014 are annexed herewith and marked as Annexure-R-IV (Colly)."
6. It is not in dispute that although the petitioner had failed to exercise the option in accordance with the Government Resolution referred to above, yet she continued to work for five years. In 2014, without giving her opportunity of hearing or without even a formal notice, straightway, the order of termination was passed.
7. It is true that the status of the petitioner at the time of her termination was ad-hoc, but at the same time, having regard to the ground on which her services came to be terminated, it was expected of the authority concerned to at least issue a formal notice and give an opportunity of hearing.
8. I could have quashed the order only on this ground alone. However, in the peculiar facts of the case and without citing it as a precedent, I expect the authority to give an opportunity to the petitioner to exercise her option so that she could be accommodated in any grant-in-aid college anywhere in the Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Apr 01 01:20:13 IST 2016 C/SCA/2352/2014 ORDER State. I may go to the extent of saying that even without calling for any option, the authority may consider posting her in any grant-in-aid college anywhere in the State of Gujarat on the same terms and conditions. Let such decision be taken within a period of four weeks from the date of the receipt of the writ of the order.
9. The Special Civil Application No.2352 of 2014 is disposed of in the above terms. I expect the authority to take a pragmatic approach of the matter and pass an appropriate order. If, ultimately, the petitioner is accommodated in any grant-in-aid college, the same shall be with continuity in service with notional effect.
10. So far as the second petition with regard to drawing of the pay scale at par with the regular employee is concerned, I am of the view that the petitioner is not entitled to claim such a relief. In that view of the matter, the second petition, i.e., the Special Civil Application No.11432 of 2013 is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Apr 01 01:20:13 IST 2016