Gujarat High Court
State Of Gujarat & 9 vs Ninama Mukeshkumar Bachubhai & ... on 30 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/MCA/3809/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 3809 of
2016
In SPECIAL CIVIL APPLICATION NO. 19425 of 2016
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STATE OF GUJARAT & 9....Applicant(s)
Versus
NINAMA MUKESHKUMAR BACHUBHAI & 11....Opponent(s)
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Appearance:
MR RONAK RAVAL, GOVERNMENT PLEADER for the Applicant(s) No. 1 - 10
MR KB PUJARA, ADVOCATE for the Opponent(s) No. 1 - 2 , 4 - 7 , 10 - 12
NOTICE NOT RECD BACK for the Opponent(s) No. 1 - 2 , 4 , 7
NOTICE SERVED for the Opponent(s) No. 3 , 5 - 6 , 8 - 12
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 30/01/2017
ORAL ORDER
1. This is an application for modification preferred by the applicant-State with the following prayers, "8. ...
[A] THE LORDSHIPS may be pleased to admit / allow the present Misc. Civil Application;
[B] THE LORDSHIPS may be pleased to modify the order dated 08.12.2016 passed by the Hon'ble Court in Special Civil Application No. 19425 of 2016 and direct the authority to reinstate the contractual appointees whose services are terminated on the basis of last come first go and on the vacant post on which the GPSC candidates have not reported only.
[C] ..." Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER 2. This Court vide its order dated
08.12.2016, after taking into consideration the detailed submissions and the report so also the number of the persons, who did not report after the merit list was published, partly allowed the petitions of the opponents-original petitioners by holding thus;
"8.0 In the result, all these petitions are partly allowed. The impugned order dated 17.11.2016 passed by the respondent authorities, terminating the services of the present petitioners is QUASHED and set aside. All the petitioners shall be REINSTATED with all consequential benefits till the REGULAR APPOINTMENTS are actually made of more students through GPSC. It is however, clarified that this arrangement shall NOT CONFER any right upon any of the petitioners to the post on which they are working, once the process of appointment of regularly selected candidates gets completed OR the petitioners shall be entitled to claim the continuation of their service.
9.0 While parting, it is being repeatedly emphasized that in the process of filing-up 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 Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER 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 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."
3. In wake of the above, here, it would be profitable to refer to the decision of this Court in Special Civil Application No. 19424 of 2016 and the allied matter, wherein, this Court, at Paragraphs-7.0 to 9.0, observed and held as under;
"7.0 Before adverting to the facts of this case, it would be vital to recall, at this stage, directions issued by the Division Bench of this Court (Coram: Mr. S.J. Mukhopadhaya, C.J. and Mr. J.B. Pardiwala, J.) in Letters Patent Appeal No. 2986 of 2010 and the allied matters, wherein the Court was dealing with those candidates, who were initially appointed for a Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER period of 11 months with a rider that their services are liable to be terminated, when regularly selected candidates through the process of selection are recommended for appointment by the GPSC. They have been termed as ad hoc lecturer in Government Colleges and Polytechnics. The Court while referring to its own interim order dated 24.03.2011, which came to be confirmed subsequently on 07.09.2011, observed and hold that all the posts, which had been advertised, were needed to be filled-up by regular appointment and a large number of appointments were, though, made, there are yet further appointments required to be made. In such an eventuality, on appointment of such regular lecturers, the ad hoc lecturers may have to be shifted to other degree / diploma colleges to accommodate regular appointees.
The authorities, in such an eventuality, would accommodate ad hoc lecturers against some other posts in equivalent degree / diploma colleges in any other district. The Division Bench, further, took note of the fact that there is no allegation or departmental proceedings against any of the them.
7.1 This Court is conscious of the fact that so far as the present petitioners are concerned, they are discharging their duties on contractual basis with the respective degree / diploma colleges. This Court is also aware of the fact that they are discharging duties from the year 2014 and that they have been Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER continued without any break in service or without any further order issued by the government in that regard. Therefore, when under the circumstances, as had been noticed by the Division Bench of this Court in Letters Patent Appeal No. 2986 of 2010 and the allied matters, wherein also, the petitioners were appointed on ad hoc basis, are almost identical to the petitioners in this case and merely because there is different nomenclature in case of the present petitioners, who are on contractual basis, the submission on the part of the learned AGP that said ratio would have no applicability in case of the present petitioners, does not find favour with this Court.
7.2 This Court is not oblivious of the fact that in the case of these very petitioners, in the earlier round of litigation being Special Civil Application No. 12591 of 2015 and the allied matters, this Court had directed the State not to terminate their services, till regularly selected candidates by the GPSC are made available with a further clarification that the petitioners shall not be entitled to claim continuity and that they shall have to make way for the regularly selected candidates through GPSC.
7.3 In the aforesaid premise, these petitions have come up for hearing, wherein the aforesaid prayers are sought for. This Court notices that after the select list was prepared by the GPSC and was forwarded to the respondent-Page 5 of 10
HC-NIC Page 5 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER authorities, without waiting for the process of appointment getting completed, in the middle of the academic term, the order of termination of the present petitioners is passed. It is quite surprising as to why such a haste is shown on the part of the respondent- authorities to terminate the services of the petitioners, when, in fact, newly appointed candidates have not yet occupied their seats. It has been made very clear by the Division Bench of this Court that the petitioners shall have to make way for the regularly selected candidates, and therefore, there could not have been any anxiety on the part of the respondent- authorities for terminating the services of the present petitioners with undue promptitude. The academic term, as is given to understand, has started only in the month of June, 2016, and the order of termination came to be passed in the month of November, 2016. Not only the academic term is going on, but, the examination of the students is also scheduled in the month of December, 2016, and despite that without completing the process and waiting to see, as to whether those candidates selected by the GPSC are, in fact, willing to join on the posts, which have been occupied by the contractual employees and even without waiting for final scenario to emerge, respondent-authorities have terminated the services of the present petitioners.
7.4 A specific query had been put to the learned AGP, Mr. Raval, Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER by this Court, as to what possible time is likely to be taken after select list is operated and it was replied that it may take about three months' time. This Court also notices another vital aspect, which is to be adverted to is that against the 278 vacancies notified vide advertisement dated 30.03.2013 by the GPSC, the number of candidates selected are only 265. Thus, 13 posts remain vacant, for which a fresh process shall have to be undertaken. It is also to be noted that out of 265 candidates, only 251 candidates have reported for the appointment by 28.11.2016. Thus, 14 seats remain vacant. However, since, four candidates have been granted extension for reporting for duty, there are, as of now, 10 clear posts, which remain vacant.
7.5 Thus, for those, who did not report for duty being 10 in numbers, the respondent-authorities may have to operate waiting list, if any. The process of filling-up of the posts by operating the waiting list may take yet some more time. Even otherwise, the Court notices that the total number of vacancies advertised vide advertisement dated 30.03.2013, as far as mechanical engineering branch is concerned, were 278 and the candidates selected by GPSC are 265 in numbers, and thus, 13 posts are even otherwise remaining vacant in mechanical engineering branch. Those vacant posts have to be advertised in the fresh process of recruitment, bearing in mind the student-teacher ratio prescribed by the AICTE and Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER till then, even the posts on which the petitioners have been appointed on contractual basis shall continue to remain vacant due to their termination vide order dated 27.11.2016. This Court, therefore, needs to step-in and interfere so far as the present petitioners are concerned. The order of termination, therefore also, deserves to be quashed and set aside.
8.0 In the result, all these petitions are partly allowed. The impugned order dated 17.11.2016 passed by the respondent authorities, terminating the services of the present petitioners is QUASHED and set aside. All the petitioners shall be REINSTATED with all consequential benefits till the REGULAR APPOINTMENTS are actually made of more students through GPSC. It is however, clarified that this arrangement shall NOT CONFER any right upon any of the petitioners to the post on which they are working, once the process of appointment of regularly selected candidates gets completed OR the petitioners shall be entitled to claim the continuation of their service.
9.0 While parting, it is being repeatedly emphasized that in the process of filing-up 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 Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER whose benefits such norms have been framed and set out by the 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."
4. It is the say of the applicant-
authorities that the ratio of 'First Come, Last Go' need to be maintained and yet, there are 10 posts vacant, where, there are 10 petitioners are already before this Court, wherein, some are ahead in merit / seniority, whereas, the rest are last. The apprehension on the part of the applicant-State is that, if, the further candidates approach the Court, it would not be possible for the authorities to give any posting. Moreover, those of the contractual employees may have to go to the vacant places where the candidates recommended by the GPSC have not resumed duties on the posts and those posts, by way of selection, have remained vacant.
5. So far as the request to send the Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Aug 13 04:59:45 IST 2017 C/MCA/3809/2016 ORDER contractual employees, till the regularly appointed candidates are posted or the wait-list is operated, is concerned, no further elaboration or clarification is desirable as this Court, on earlier occasion, categorically permitted the applicant-State to accommodate them wherever the posts remain vacant and the transfer to those places shall not be made a matter of issue by the candidates.
6. So far as the request of the 'Last Come, First Go' is concerned, waiting for the eventuality, the applicant-State cannot choose not to implement the order of this Court. Those of them, who are before this Court and shoe request is acceded to coupled with those petitioners, who are before this Court, shall be recorded by the applicant-State, wherein, those, who so far have not challenged the decision of the State taken on 18.11.2016, the request can be made not to implement the order. This Court is conscious of the fact that this arrangement has been made till, those, who are, otherwise, entitled, on long-term basis, to occupy those posts. DISPOSED OF, accordingly.
(MS SONIA GOKANI, J.) UMESH Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Aug 13 04:59:45 IST 2017