Gujarat High Court
Rajeshkumar Pooransingh Dhaked vs State Of Gujarat on 21 September, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/11792/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11792 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 11792 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 11792 of 2017
==========================================================
RAJESHKUMAR POORANSINGH DHAKED
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR AMIT PANCHAL for ANGESH A PANCHAL(9138) for the Petitioner(s)
No. 1
MS. MANISHA LUVKUMAR, GOVERNMENT PLEADER with MR BHARAT
VYAS, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.
1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 21/09/2020
ORAL ORDER
1. The Present petition is filed under Article 226 of the Constitution of India for the purpose of seeking following reliefs:
"10. In the premises aforesaid, the petitioner, therefore, prays that this Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other appropriate writ, direction or order-
(A) Directing the respondents, their agents, servants, etc. to grant benefits of Permanency in Service, Higher Pay Scale, Leave Encashment, Page 1 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER Contributory Provident Fund, Leave Travel Concession, State Insurance, and such other benefits as are granted to persons working on permanent sanctioned posts and/or which are being granted and which are paid to similarly situated employees/or and the employees appointed by the State Government on permanent basis and who are doing similar work and are performing same duties, in conformity with the principle of 'equal pay for equal work', and as have been given to identically situated persons and on the principles laid down by Honourable Supreme Court of India in the judgment dated 26.10.2016, in the case of State of Punjab versus Jagjit Singh and others, in Civil Appeal No. Civil Appeal No. 213 of 2013 and connected matters, and in the case of Randhir Singh versus Union of India reported in (1982) 1 SCC 618, which judgments are binding under Article 141 of the Constitution of India, and also confirming the judgments of this Honourable Court rendered in Special Civil Application Nos. 4269 of 2016 confirmed in Letters Patent Appeal No. 616 of 2016, Special Civil Application 4787 of 2016 to 4791 of 2016; Special Civil Application No. 8152 of 2015 and connected matters, disposed of by way of CAV common Judgment dated 07.09.2016 and in Special Civil Application No. 709 of 2014 confirmed by the Division Bench of this Honourable Court in Letters Patent Appeal No.1079 of 2014;Page 2 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER
[B] Pending the admission, hearing and final disposal of this petition, Your Lordship may be pleased to :-
(i) Restrain the respondents, their officers, agents, sevants, etc. from terminating the services of the petitioner and/or from altering in any manners the service benefits being granted to the petitioner.
(ii) Restrain the respondents, their officers, agents, servants, etc. from in any manner continuing with the process of making appointments to the post of Lecturers, Readers, Professors in Ayurvedic Colleges under the Respondent State, which process is likely to commence in pursuance of the GPSC advertisement dated 15.05.2017 and/or any other notice or announcement for the process of appointment.
(c) Grant an ex partead interim relief in terms of prayer (B)(i) and (ii) above;
(D) Pass such other and further order
or orders, as may be deemed just and
proper in the facts and circumstances
of the present case;
(E) Award Costs."
2. The case of the petitioner is that the Page 3 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER petitioner was appointed as an ad hoc lecturer in the Indian System of Medicine and Homeopathy by the Department of Health and Family Welfare, initially for a period of six months, which period was further extended from time to time till regular GPSC candidates are available, whichever is earlier. In response to this appointment, the petitioner was continued in the employment and from time to time his employment was extended according to the petitioner. For approximately more than 5 years and 10 months from the date of joining, the petitioner continued but the petitioner was deprived of certain benefits. As a result of this, has filed this petition for seeking aforesaid relief. The main crux of submissions for seeking reliefs are as under:-
"3. By way of this petition under Article 226 of the Constitution of India, the petitioner challenges the arbitrary, high- handed, illegal, unreasonable and irrational action of the respondents in -
a) Denying 'equal pay for equal work', to the petitioner, as is being paid to employees working on regular basis against sanctioned posts and performing same duties which are discharged by the petitioner, although the petitioner has been selected after a due legal and regular process of selection by the respondents, and is working on a permanent sanctioned posts on ad-hoc basis;
Page 4 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDERb) Denying the benefits to the petitioner being an ad-hoc employee, which benefits have been extended to petitioners of Special Civil Application Nos. 4269 of 2016, 4787 of 2016 to 4791 of 2016 and which has been approved in Letters Patent Appeal No. 616 of 2016 and connected appeals, with the State Government having decided to regularize the services of the original petitioner and passed order i.e. Government Resolution bearing No.MKM /102016/1031/Chh dated 12/09/2016, wherein the Government has taken decision to regularize services of 28 Demonstrators-cum-Tutors of the Government Ayurveda college under the Director, Indian System of Medicine and Homeopathy, Gandhinagar and without treating the same as precedent, in so far as they relate to grant of Leave Encashment, Contributory Provident Fund, Leave Travel Concession, State Insurance and such other benefits which are also given to other employees in the State Government performing the same duties by virtue of their being engaged on regular basis and against sanctioned posts;
which action is violative of Article 14 of the Constitution of India Article and amounts to exploitation in a welfare state committed to a socialist pattern of society; moreover, action of not regularizing the services of the petitioner despite the appointment of the petitioner being done through legal means; and therefore depriving Page 5 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER the petitioner of his 'legitimate expectation' of 'equal pay for equal work', continuity of service, regularization of service and all consequential service benefits as being illegal, unreasonable, unjust, against the principles of natural justice and against the right enshrined under Articles 14, 16, 19(1)(g) and 21 of the Constitution of India.
The petitioner also seeks a declaration that the petitioner would be entitled to the benefits of the Government Resolutions as have been granted to other employees on their completing 8 years, 16 and 21 years of service, respectively"
3. In addition to aforesaid main submissions, multiple contentions have been raised. As a result of this along with other sets of petition, the present petition also appears to have been entertained.
4. Mr.Amit Panchal, learned advocate for the petitioner has raised multiple contentions, when the matter is taken up for hearing but then has frankly conveyed to the Court but almost identical situation, which arose in another petition was extensive dealt with by co-ordinate Bench of this Court just recently and the judgment is delivered on 3rd September 2020. Since there is no other distinguishable point available for the petitioner and since a detailed judgment is passed in almost similar Page 6 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER circumstance. Mr.Panchal, learned advocate for the petitioner has candidly drawn the attention of this Court of the said judgment and the relevant findings, which are arrived at by the co-ordinate Bench of this Court. Mr.Panchal has further submitted that here also is a case, in which the petitioner made an attempt but could not clear the examination, which was conducted by GPSC and has therefore, left it to the discretion of this Court since no other stand is available for the petitioner.
5. As against this, Ms. Manisha Luvkumar, learned Government Pleader appearing with Mr.Bharat Vyas, learned Assistant Government Pleader has also clearly contended that in the identical circumstance, the co-ordinate Bench of this Court has at length heard both the respective sides, in which, Mr.Panchal has also made a serious attempt to convince the Court but that petition came to be dismissed. In that petition also, the candidate appeared in the examination but could not succeed. Hence, this petition is squarely covered by the decision delivered by co-ordinate Bench of this Court dated 03.09.2020. Accordingly, has requested to dispose of on the same line as indicated above.
6. Having heard the learned advocate for the Page 7 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER parties and having gone through the candid submission made by the learned advocate for the petitioner and having seen the order passed by the co-ordinate Bench of this Court dated 03.09.2020 passed in Special Civil Application No.21033 of 2016, in considered opinion of this Court, there is no other distinguishable contention or circumstance pointed out to this Court.
7. Resultantly, the Court is inclined to adopt the similar line on which the decision is taken as indicated. Hence, the petition does not deserve to be entertained.
8. However, the Court would like to reproduce the findings of co-ordinate Bench of this Court, which came to be arrived at after considering the extensive submissions of both the sides.
"[7] The Court has heard learned advo- cates for the parties and perused the documents placed on record. The peti- tioner is one of the candidates who was appointed on ad-hoc basis as a lecturer (Sanskrit), Class-II vide order dated 05.03.2010. The appointment order which is placed at Annexure-R-III alongwith the affidavit of the respondents in Civil Ap- plication, the petitioner was appointed based on 14 conditions. The relevant for the purpose of this case would be condi- tion No.7 which means that the order of appointment of the candidate would auto-Page 8 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER
matically stand canceled after expiry of six months or availability of GPSC se- lected candidate unless specific order is passed to continue the petitioner. It ap- pears that from time to time on account of non-availability of GPSC selected can- didates, the appointment of the peti- tioner came to be extended periodically.
[7.1] Clause 10 would read to a mean that it is compulsory by the petitioner to make an application in the selection procedure of the GPSC for this very post which the petitioner did not do or absent herself from the selection procedure or after appearing for such selection, is not selected, the petitioner will lose her service without any notice and undertaking to that effect is required to be furnished to the petitioner at the time of joining as ad-hoc lecturer.
[7.2] The requisition for the post of lecturer (Sanskrit), Class-II was sent to GPSC by the State Government pursuant to which an advertisement was published on 15.10.2017 and pursuant to which written examination was conducted on 15.10.2017 and interview on 15.07/16.07.2019 were conducted. After the due selection procedure, GPSC declared final result and recommended the names of seven candidates eligible for appointment out of five candidates are already appointed, whereas two candidates are waiting for the appointment, however, the appointment could not be given on account of non- availability of the vacant post.
[8] It has also come on record that the petitioner herself had appeared for the selection process, but has failed to be Page 9 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER considered in the process for selection of lecturer (Sanskrit) Class-II and therefore, as per the condition of ap- pointment letter particularly condition No.10, the petitioner loses all the rights to be continued as an ad-hoc lec- turer.
[9] Over and above that, now when the candidates by GPSC are available as con- dition No.7 of the appointment order of petitioner, the petitioner will have to make way for the selected candidates. Therefore, no right of the petitioner is created to continue as ad-hoc lecturer in view of specific condition of her ap- pointment.
[10] Insofar as regularization of the pe- titioner is concerned, undoubtedly the petitioner has putting services of more than 10 years as ad-hoc lecturer and has gained experience in the line of teaching yet where the mode of appointment is pre- scribed, the Court cannot go beyond the prescribed mode of appointment to give direction for regularizing the petitioner which has effect of giving the appoint- ment on the post sanctioned. The princi- ple of law in public employment envisages the specific procedure so that the gen- eral public has equal opportunity to com- pete. The petitioner did compete, but did not succeed and therefore, no indefinable right is created in favour of the peti- tioner to continue on the post.
[11] Learned advocate has placed reliance on the judgment of Himpachal Pradesh High Court in the case of Pankaj Kumar (Supra), the relevant paras of the judg-
ment would indicate that the issue was Page 10 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER with regards to the appointment of teacher made under the Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assis- tant Teacher (PAT) Scheme, 2003 and the question that was for consideration be- fore the Division Bench is whether the selection of the teacher made in terms of the policies made by the State aimed had to provided primary education to the needy and poor hailing from tribal, hard and difficult areas, who are entitled to it as a matter of right, being a funda- mental right, and are poor, read with the fact that the regular/contractual teach- ers were not interested to work in the said areas, is illegal and not entitled to regularization? In this background, it is observed with some pain that the State Government when required has utilized the services of said teachers when the said teachers have lost their youth in per- forming their duties for the Government and had legitimate expectation. This judgment was carried before the Hon'ble Apex Court in the case of Chander Mohan Negi (Supra), wherein the Apex Court in para-11 has held as under:-
"11....In that view of the matter, we are of the view that when the appointees appointed under the scheme have completed more than almost 15 years of service now and also have acquired the professional qualifications, they cannot be denied regularization at this point of time. As the appointments were made as per the schemes notified by the Government such appointments cannot be treated as illegal, if at all they can be considered irregular. When it is the plea of the State that in view of the hard Page 11 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER topography/tribal areas in the State, large number of vacancies were there even single teacher schools and to achieve the objection of the Himachal Pradesh Primary Education Trust, 1997 such steps were taken, there is no reason to disbelieve the same more so, in absence of any affidavit by way of rejoinder by the writ-petitioners before the High Court controverting the allegations in the reply filed on behalf of the State."
[12] Therefore, both the Division Benches of the Himachal Pradesh High Court and the Apex Court were inclined to observe that as such considering the typical is- sue like topography/tribal areas, large vacancies and obligation of the State to achieve the object laid down under the Himachal Pradesh Primary Education Act, 199, such is not the case in the present facts and therefore, the Court is not in- clined to consider the cited judgments in favour of the petitioner.
[13] Learned advocate has referred to the judgment of this Court in the case of Acharya Madhavi (Supra) to contend that it was State's responsibility after the observations made by the Division Bench in Letters Patent Appeal No.2986 of 2010 that the State to consider to fail in its scheme to relax the age and select qualified and experienced ad-hoc lecturer through any limited competitive examina- tion. It would be pertinent to observe that the very judgment was subject matter of challenge by the very petitioner namely Acharya Madhvi in Letters Patent Appeal No.1184 of 2017, where the ques-
Page 12 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDERtion so far as raised in Special Civil Application No.8152 of 2015 was consid- ered in para-7.1 by the Letters Patent Appeal Bench which is limited to the ex- tent to consider putting all the ad-hoc lecturers appointed after May-2008 on par with all those ad- hoc lecturers ap- pointed prior to May-2008 from the date of their initial appointment. Insofar as the observation of creating a scheme, it would be pertinent to reproduce para-9 which ultimately the Letters Patent Ap- peal Bench had considered in the group of petitions "before parting with the present order, we may observe that the State Government is not justified in filling up the post of Professors/Lectur- ers by ad-hoc Lecturers/Professors for number of years. To continue such post on ad-hoc basis shall not be in the large interest of the students. Therefore, all efforts shall be made by the State/GPSC to see that the post of Lecturers/ Pro- fessors/Assistant Professors/Assistant Lecturers/Teaching Staff in the Polytech- nics/Engineering shall be filled in on regular basis, selected by GPSC at the earliest". It is pertinent to observe that Division Bench in LPA has, in fact, given approval for appointment of teach- ing staff through selection process by GPSC.
[16] For the forgoing reasons, the Court does not find any reason to interfere in this petition under Article 226 of the Constitution of India. The petition therefore deserves to be and is hereby dismissed. Rule is discharged. No order as to costs.
[17] In view of the order passed in the Special Civil Application, the Civil Ap- plication does not survive and hence, Page 13 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021 C/SCA/11792/2017 ORDER stands disposed of."
9. In view of the aforesaid observations and findings and in view of the similar sets of circumstance, this court is not inclined to entertain the petition. Accordingly, Special Civil Application being devoid of merits and the same stands dismissed with no order as to costs.
10. Since main Special Civil Application is disposed of. The Civil Applications do not survive and the same are disposed of accordingly.
(ASHUTOSH J. SHASTRI, J) ALOK/ VARSHA DESAI Page 14 of 14 Downloaded on : Thu Feb 25 01:49:15 IST 2021