Gujarat High Court
Riyaz Yusufkhan Modan vs State Of Gujarat & 3 on 11 August, 2015
Author: M.R. Shah
Bench: M.R. Shah, G.R.Udhwani
C/LPA/1031/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1031 of 2015
In SPECIAL CIVIL APPLICATION NO. 9887 of 2014
With
CIVIL APPLICATION NO. 7018 of 2015
In LETTERS PATENT APPEAL NO. 1031 of 2015
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RIYAZ YUSUFKHAN MODAN....Appellant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR EKRAMA H QURESHI, ADVOCATE for the Appellant No. 1
MS MANISHA LAVKUMAR AGP for the Respondent No. 1 - 3
MR MIHIR JOSHI, SENIOR ADVOCATE WITH
MR DG SHUKLA, ADVOCATE for the Respondent No. 4
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 11/08/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Being aggrieved by and dissatisfied with the impugned judgement and order passed by the learned Single Judge dated 28/4/2015 passed in Special Civil Application No. 9887 of 2014, by which the learned Single Judge has dismissed the said Special Civil Application, the appellant Page 1 of 13 HC-NIC Page 1 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER herein - original petitioner has preferred the present Letters Patent Appeal.
2.00. That the appellant herein - original petitioner was appointed as an Assistant Professor (Rubber Technology) by order dated 19/10/2013 for a fixed period of 11 months or till regularly selected candidate by GPSC is available, whichever is earlier. That the original petitioner joined the services on 21/10/2013 on such contractual appointment. That on availability of the candidate selected by the GPSC, services of the original petitioner came to be terminated on 26/6/2014.
2.01. Feeling aggrieved and dissatisfied with the termination order, the original petitioner preferred Special Civil Application No. 9887 of 2014. That by the impugned judgement and order, the learned Single Judge has dismissed the aforesaid Special Civil Application by observing that after the contractual period of 11 months and as regularly selected candidate by GPSC was available, the original petitioner has no right to continue on the post.
2.02. Feeling aggrieved and dissatisfied with the impugned judgement and order passed by the learned Single Judge, the appellant herein - original petitioner has preferred the present Letters Patent Appeal.
2.03. That despite disapproval of the practice of filling up Page 2 of 13 HC-NIC Page 2 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER the posts on ad-hoc basis and/or on contractual basis, more particularly in the field of education, by the Division Bench of this Court in the case of K.D. Vohra, reported in 2003 (2) GLR 1343 and subsequent decision of this Court in the case of Pranav Ganeshbhai Chakravarty Versus State of Gujarat and others, reported in 2007 (4) GLR 2923, the respondents have continued the practice of filling up the posts in the educational institutions and continued to run educational institutes by ad-hoc employees and/or appointing them on contractual basis. Before considering the present appeal on merits, this Court called upon the State Government as well as Gujarat Public Service Commission (hereinafter referred to as the "GPSC" for short) to state on oath with respect to the vacant posts of Professor / Lecturer / teaching staff in the Government Degree Engineering / Degree Pharmacy / Polytechnic / Diploma etc. and steps to be taken by the State Government and GPSC to fill up the vacant posts in different Government Engineering / Polytechnic Colleges.
2.04. That on behalf of the State of Gujarat, an Affidavit- in-reply dated 21/7/2015 has been filed by the Under- Secretary, Technical Education, Education Department, Gandhinagar. It is stated in the said Affidavit-in-reply that there are 47 government institutions, including Engineering Colleges, in the State. Along with the Affidavit-in-reply, the State has produced Chart showing number of sanctioned posts; posts already filled in by regularly selected candidates; ad-hoc appointees, if any; appointment on contractual basis and vacant posts. The relevant particulars in the form of Chart are as under :-
Page 3 of 13HC-NIC Page 3 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER Sr. Number Name of Sanctin Regular Adhoc Contr Vacant post.
No. of Post ed Post. filled actual
Institute up post
1 2 3 4 5 6 7 8
1 16 Principal 16 6 0 0 10
Govt. (7 Promotion & 3
Engineering Direct Recruitment)
College
Professor 204 21 0 0 183
(97 Promotion & 86
Direct Recruitment)
Associate 410 219 0 0 191
Professor
(In the
post only
promo
tion)
Asstt. 1724 624 100 307 693
Professor
2 30 Principal 30 3 0 0 27
Govt.
Polytechnic
H.O.D. 199 48 0 0 151
Lecturers 2716 946 150 864 756
3 01 Principal 1 0 0 0 1
Pharmacy
Degree
College
Professor 2 1 0 0 1
Associate 8 6 0 0 2
Professor
Asst. 16 16 0 0 0
Professor
Pharmacy H.O.D. 1 1 0 0 0
Diploma
College
Lecturers 12 12 0 0 0
From the aforesaid it emerges that out of total 5339 sanctioned posts, only 1903 posts are filled in by regularly Page 4 of 13 HC-NIC Page 4 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER selected candidates by GPSC.
It was pointed out and submitted on behalf of the State that as per the recruitment rules, recruitment process has to be carried out by the GPSC. First Affidavit-in-reply was filed by the GPSC on 22/7/2015 stating the stages at which the recruitment for different posts with the GPSC is pending.
It was also found that the GPSC is also in shortage of regularly selected staff and they run only by 50% of the sanctioned staff.
2.05. Further Affidavit-in-reply is filed by the GPSC dated 25/7/2015, affirmed by Joint Secretary of the GPSC submitting further steps to be taken and/or future action plan, to clear the backlog of appointment of teaching staff in various government engineering / polytechnic institutions. It is stated that steps, as mentioned in Annexure-IV and Annexure-V to the aforesaid affidavit dated 25/7/2015, shall be taken to expedite the filling up of the respective posts.
3.00. Ms.Manisha Lavkumar, learned Government Pleader appearing on behalf of the State Government has also stated at the bar that certain matters with respect to certain rules for promotion and/or direct recruitment and/or amending the rules, are pending with the concerned department and the same shall be approved immediately and at the earliest.
Ms.Manisha Lavkumar, learned Government Pleader and Mr.Mihir Joshi, learned counsel appearing with Mr.D.G. Shukla, learned advocate, appearing on behalf of the Page 5 of 13 HC-NIC Page 5 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER GPSC, have stated at the bar that the State Government as well as the GPSC have taken the matter very seriously having realized that in the field of education, educational institutions cannot be permitted to run by ad-hoc employees and/or professors / lecturers / teachers appointed on contractual basis. They have stated at the bar and assured the Court that all efforts shall be made by the State as well as GPSC to see that teaching staff in government engineering institutions / colleges / polytechnic etc. shall be filled in by regularly selected candidates by the GPSC at the earliest. They have jointly stated at the bar that whatever the internal problems and difficulties between the GPSC and the State Government / concerned department, shall be sorted out at the earliest.
Ms.Manisha Lavkumar, learned Government Pleader appearing on behalf of the State has stated at the bar that requisition with respect to vacant posts (different posts) vacant in different government institutions / engineering / polytechnic etc. shall be sent to the GPSC within a period of one month from today.
Mr.Mihir Joshi, learned counsel appearing with Mr.D.G. Shukla, learned advocate, appearing on behalf of the GPSC has stated at the bar under the instructions from Ms.Asha Shah, Joint Secretary, GPSC that after receipt of the requisition from the concerned department / State of Gujarat, query, if any, shall be communicated to the concerned department, within a period of two weeks from the date of receipt of such requisition.
Ms.Manisha Lavkumar, learned Government Pleader Page 6 of 13 HC-NIC Page 6 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER appearing on behalf of the State has stated at the bar that query raised by the GPSC, if any, shall be responded and dealt with at the earliest.
Mr.Mihir Joshi, learned counsel appearing with Mr.D.G. Shukla, learned advocate, appearing on behalf of the GPSC has stated at the bar under the instructions from Ms.Asha Shah, Joint Secretary, GPSC that immediately thereafter within a period of one month, advertisement shall be given and applications shall be invited. It is further stated that thereafter at the earliest and within a period of three to four months, the entire process upto declaring preliminary result as well as final result shall be completed (in case, preliminary test, if any, is conducted looking to the number of applications received). He has also stated at the bar that thereafter within a period of two months, personal interviews shall be held and conducted and final result shall be declared and recommendations shall be sent to the concerned department / State Government.
Ms.Manisha Lavkumar, learned Government Pleader appearing on behalf of the State has stated at the bar that thereafter within a period of 21 days, actual appointment on regular basis shall be made.
Mr.Mihir Joshi, learned counsel appearing with Mr.D.G. Shukla, learned advocate, appearing on behalf of the GPSC and Ms.Manisha Lavkumar, learned Government Pleader appearing on behalf of the State, have stated that with a view to see that recruitment process is completed within the aforesaid time-bound schedule, there shall be periodical joint meeting between the Secretary, Education Department;
Page 7 of 13HC-NIC Page 7 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER Commissioner Technical Education; Secretary, GPSC and Joint Secretary, GPSC, to review the situation and to consider periodical progress and to remove the defect / query, if any.
Considering the larger interest of the students and with a view to see that education may not suffer, as by not filling up the sanctioned posts of professor, lecturers, teaching staff etc. on regular basis in the educational institutions and to run the educational institutions by ad-hoc employees appointing lecturers, professors, teaching staff etc. on contractual basis, ultimately education in the State has to suffer. Even otherwise, it is required to be noted that as per the statutory rules and regulations and even as per the AICTE Norms, requirements of teaching staff is GPSC selected candidates. Way back in the year 2003 and thereafter in the year 2007, as such this Court, disapproved of such practice of running educational institutes by such ad-hoc employees on contractual basis. In the case of Pranav Ganeshbhai Chakravarty (supra) faced with the similar situation, however, at the relevant time, in the medical education, after recording the statements made at the bar on behalf of the State as well as GPSC, this Court issued the following directions :-
"(i) The State Government and the concerned Departments are directed to send requisition for remaining 291 posts in Medical Education Faculty to the Gujarat Public Service Commission on or before 31st March 2007;
(ii) The State Government and the concerned Departments are directed to send requisition for remaining 140 posts in Medical Service Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER Department to the GPSC by 28th February 2007.
(iii) The State Government and the concerned Departments are directed to send requisition for 1332 posts in Public Health Service Department to the GPSC on or before 28th February 2007.
(iv) After receipt of requisitions from the State
Government, if there is any query and/or
clarification from the Gujarat Public Service
Commission, the GPSC shall immediately revert back to the State Government within one month from the date of receipt of requisition. The State Government and the concerned Department shall reply to the GPSC within the period of one month thereafter in respect of any query and/or clarification as may be necessary to do so within the aforesaid stipulated time.
(v) After the requisition is received, the GPSC shall give advertisement in local newspapers inviting applications for appearing in the examinations/interviews within the period of 2 months and thereafter the entire exercise inclusive of holding of examinations/interviews, declaration of results, recommendation to be made to the State Government shall be completed by the GPSC within the period of 6 months from the date of such advertisement.
(vi) On receipt of the recommendation from the GPSC, the State Government under the concerned Department is directed to issue appointment orders accordingly within the period of 2 months from the date of receipt of the result and/or the recommendation from the GPSC whichever is Page 9 of 13 HC-NIC Page 9 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER later. Thus, right from the date of sending requisitions and till the date of issuance of appointment orders, the entire exercise shall be completed within the period of 11 months, meaning thereby as far as possible/practicable no posts in the aforesaid department shall be continued to be filled-in by ad-hoc appointees for more than 12 months.
(vii) If a candidate who is offered appointment on the basis of the recommendation of the GPSC does not report for duty and/or join the duty within the stipulated time, the State Government and the concerned department shall immediately approach the GPSC for operating the select list/waiting list further, and the post/s should be offered to the next available candidate immediately.
(viii) In future, as and when the posts fell vacant, either due to retirement, transfer and/or for some other reason, the State Government shall immediately send requisition to the GPSC, but not later than one month after the vacancy has arisen. However, as far as possible, the requisition must be sent to the GPSC well in advance even much prior to the date on which the posts would fall vacant.
(ix) As stated above, there are 1129 posts required to be filled-in by regularly selected candidates by GPSC in respect of Medical Faculty, out of which requisition for 838 posts are also sent by the State Government and for remaining 291 posts, requisitions will be sent by 31st March 2007. As regards Medical Service Department, Page 10 of 13 HC-NIC Page 10 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER 451 posts are required to be filled-in by the candidates selected by GPSC, out of which requisitions for 311 posts are sent to the GPSC, and for remaining 140 posts, requisitions will be sent by GPSC by 28th February 2007. As regards Public Health Service Department, in all 1332 posts are required to be filled in by the GPSC selected candidates and requisition for all the aforesaid posts will be sent to the GPSC on or before 28th February 2007. Thus, GPSC and the concerned department in State Government, more particularly the Commissioner of Health, Medical Services and Medical Education, are directed to fill-up the posts in all the aforesaid 3 departments within the stipulated time, as stated above."
This Court in para 13 of the aforesaid decision, after recording the observations made by the Division Bench of this Court in the case of K.D. Vohra (supra), by which the the Division Bench deprecated such practice of running educational institutions by ad-hoc employees and/or employees appointed on contractual basis, again noted that inspite of observations made by the the Division Bench in the case of K.D. Vohra (supra), there is no improvement in the situation and more than 50% posts are occupied by the candidates not regularly selected by GPSC and said posts are remained vacant.
Despite the above strong disapproval, there is no change in the situation and as observed hereinabove, more than 50% of the sanctioned posts in the government engineering / polytechnic institutions etc. have remained vacant and some Page 11 of 13 HC-NIC Page 11 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER of the posts are filled in by ad-hoc professors, lecturers, teaching staff, teaching staff, appointed on contractual basis. Under the circumstances, the concerned respondents, more particularly State of Gujarat, Education Department and Higher Education and Technical Education and the GPSC are directed to act as per their respective Affidavits filed by them in the present proceedings and directed to act, as stated above and see to it that the sanctioned vacant posts in the government engineering / polytechnic institutions etc. are filled in by the regularly selected candidates by GPSC at the earliest and within the stipulated time, as stated hereinabove. With a view to see the progress in the process of filling up the aforesaid sanctioned vacant posts, the State Government as well as GPSC to submit periodical report before this Court in the present proceedings, every month between 1st and 7th of every English Calender month, for a period of six months and the first periodical progress report be submitted on or before 7/9/2015 and the same shall be placed before this Bench.
Now, so far as the case of the appellant herein - original petitioner is concerned, at the outset, it is required to be noted that the appointment of the appellant herein - original petitioner as an Assistant Professor (Rubber Technology), was purely on temporary and contractual basis for a period of 11 months or till regularly selected candidate by GPSC is available, whichever is earlier, and hence, on availability of the regular employee selected by GPSC, services of the appellant herein - original petitioner has been terminated. Under the circumstances, it cannot be said that the learned Single Judge has committed any error in dismissing the Special Civil Application preferred by the appellant herein - original Page 12 of 13 HC-NIC Page 12 of 13 Created On Sat Oct 10 02:03:27 IST 2015 C/LPA/1031/2015 ORDER petitioner. However, it is reported by the State Govt. that still there are two posts of Assistant Professor (Rubber Technology) vacant. Under the circumstances, let the appellant herein - original petitioner make a formal application to the Commissioner, Technical Education for his reappointment on the post of Assistant Professor (Rubber Technology) on the same terms and conditions on which he was earlier appointed and if there is nothing adverse to the appellant herein, the concerned authority is directed to consider the case of the appellant for the appointment on the aforesaid vacant post on the same terms and conditions, more particularly till GPSC selected candidate is available or for a period particular period whichever is earlier. However, as observed by the learned Single Judge in the impugned order, all the efforts shall be made by the concerned authority to see that the posts of Assistant Professor (Rubber Technology) are also filled in by regularly selected GPSC candidates at the earliest.
With the observations and directions as aforesaid, present Letters Patent Appeal stands disposed of. Consequently, Civil Application No. 7018 of 2015 also stands disposed of.
In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(M.R.SHAH, J.) Sd/-
(G.R.UDHWANI, J.) Rafik...
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