Gujarat High Court
Chandrika K Parmar vs State Of Gujarat & 2 on 11 September, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/CA/4886/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 4886 of 2017
In SPECIAL CIVIL APPLICATION NO. 2108 of 2017
WITH
SPECIAL CIVIL APPLICATION NO.2108 of 2017
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CHANDRIKA K PARMAR....Applicant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
MR MITUL SHETAL, ADVOCATE FOR MS.AVNI H PANDYA, ADVOCATE for the Applicant(s) No. 1 MR NIRAJ ASHAR, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 - 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 11/09/2017 COMMON CAV ORDER
1. Heard learned advocate Mr. Mitul Shelal for the petitioner and learned AGP Mr. Niraj Ashar for respondent - State. Perused the record.
2. The petitioner herein has challenged the action of the respondents in not regularizing the service of the petitioners as tutor at B. J. Medical College, though the petitioner has been employed as a tutor in pharmacology for more than 19 years.Page 1 of 18
HC-NIC Page 1 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER Thereby, petitioner was appointed as such on 30.09.1997 initially on temporary and ad-hoc basis when she applied pursuant to advertisement for the post and had undergone selection process including interview. During the course of her services, she has been transferred to different medical colleges. But, lastly, she was discharging her duties in B. J. Medical College. It is contended by the petitioner that though she was serving as a tutor in the subject of pharmacology, since the year 1997 without regularizing her on such post, advertisement for the same post of tutor in pharmacology, published in the year 2016 by the Gujarat Public Service Commission (herein after referred to as "the GPSC") is not proper. It is also contended that after completing selection process, the GPSC is in process of issuing order of appointments to new candidates again on temporary basis for a period of two years. Therefore, petitioner apprehends that if fresh appointment is made then her services may be terminated, since she was appointed on ad-hoc basis. Therefore, petitioner has preferred this petition contending that she is entitled to be regularized and also entitled to all the service benefits as if, she is regular employee or in the alternative she is ready and willing to continue as ad hoc tutor against vacancies of tutor and, thereby, sought direction against respondents not to discontinue her services which is for the period of 19 years but virtually not to appoint any regular tutor contending that such action of the respondents is exfacie arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India.
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It is further contended by the petitioner that though in the year 2006 also when petitioner apprehends that her services may be discontinued, she has preferred Special Civil Application No.25417 of 2006 before this High Court wherein the High Court has passed following order;
"3. In light of this fact, it is open for the petitioners to make detailed representation to the respondent authorities within a period of one month from the date of receiving the copy of this order.
4. As and when the respondent authorities receive the representation of the petitioners, it is directed to the respondent authorities to consider the case of both the petitioners on the same line as it was considered in case of Dr.Maru and also consider the case of petitioners in light of subsequent advertisement issued in February,2007 for ad-hoc tutor and then, pass appropriate reasoned order in accordance with law, within a period of three months from the date of receiving such representation from the petitioners.
5. Meanwhile, the respondents are directed to maintain the status-quo.
6. In view of the above observations and directions, present petitions are disposed of, without expressing any opinion on merits. However, in case if ultimate decision is adverse to the petitioners, it is open for the petitioners to challenge the same before appropriate forum in accordance with law. Notice is discharged. Direct service is permitted."
3. Thereby petitioner continued in services till March 2013 and then transferred to B. J. Medical College Ahmedabad as tutor where she is serving till date of termination.
4. Thereby, the main prayer by the petitioner in main petition is to regularize her services as a tutor in pharmacology department Page 3 of 18 HC-NIC Page 3 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER with ancillary reliefs to restrain the respondents from terminating her services on the ground of being ad-hoc employee, with alternative relief that respondent may transfer the petitioner to the vacant post of tutor in subject of Pharmacology available in the Government Medical College at Ahmedabad / Bhavnagar / Jamnagar or at any other vacant post of tutor in the subject of Pharmacology.. Petitioner has also prayed for interim relief to restrain the respondents from terminating her services pending the main petition.
5. Before any interim relief is granted, it seems that pending this petition, petitioner has been terminated by an order dated 07.02.2017 stating that since her name is not disclosed in waiting list by the GPSC and since her services were ad-hoc, it has been decided to put an end to her services. Therefore petitioner has no option but to amend the petition contending that ad-hoc employee cannot be replaced by appointing another ad-hoc employee and, therefore, appointment of new ad-hoc tutor on the same post after terminating the services of the petitioner is violative, arbitrary and against the settled law. It is submitted that Manoj Halpati, Rushwa Mistri, Rahul Chaudhary, Prakash Malav and Archana Chaudhari have not passed the GPSC examination. However, their services are continued as such, whereas in discriminatory manner, services of the petitioner has been discontinued. It is also submitted that since petitioner has completed the services of more than 19 years, Page 4 of 18 HC-NIC Page 4 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER she cannot be terminated without following due process of law since impugned order dated 07.02.2017 was passed without issuance of any notice or conducting any inquiry and, therefore, it is also violative of principle of natural justice and exfacie arbitrary. It is also contended that though there was a direction by this Court in its order dated 23.03.2017 to consider and decide the representation of the petitioner, respondents have failed to consider the representation of the petitioner so as to regularize her services. It is also contended that some juniors to the petitioner have been continued in service. In view of such development, petitioner has also prayed for setting aside the order dated 07.02.2017 terminating her services with ancillary relief to stay the execution and implementation of such order and thereby to reinstate her.
6. It is surprising to note that the day on which, an order of termination was passed i.e. 07.02.2017 in fact matter was listed before the co-ordinate bench of this High Court on the very same day when following order was passed;
"Learned AGP Mr. Ronak Raval seeks time to take necessary instructions with regard to present vacancy so also in relation to the services carrier (condition) of the present petitioner. Let the matter appear on 09.02.2017."
7. It seems that on 9th when the order of termination was served, petitioner has amended the petition as recorded herein above and thereafter on 13.02.2017 the Court has issued notice for Page 5 of 18 HC-NIC Page 5 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER final disposal returnable on 17.02.2017 with a direction that affidavit in reply be filed. However it seems that respondents have filed affidavit in reply only on 18.02.2017 and petitioner has filed rejoinder affidavit at 24.02.2017. Meanwhile in absence of interim order petitioner has preferred this Civil Application on 07.04.2017, which was also dragged till August and ultimately both the parties were heard on merits in the month of August 2017.
8. In addition to above facts, I have referred the pleadings of both sides and available material on record.
9. In such Civil Application now petitioner has prayed to restrain the respondents and to direct the respondents to reinstate the petitioner against existing vacant post of tutor in pharmacology in any government college of the State subject to such terms and conditions as may deem fit and proper by this Court.
10. In response to such pleadings by the petitioner, it is contended by respondent No.1 - State that petitioner has not cleared the GPSC examination nor had secured her place in the waiting list and, therefore, her ad-hoc services were required to be terminated. It is also contended that there is no substance in the allegation by the petitioner regarding continuity of service of her junior that they have not cleared GPSC examination submitting that the service of Dr. Sneh Dudhia and Dr. Nishita Darji have also been Page 6 of 18 HC-NIC Page 6 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER terminated, who are juniors to the petitioner and, therefore, no junior to the petitioner is in service. Whereas some of the ad-hoc teachers have cleared the GPSC examination and secured their position in waiting list and, therefore, they are continued in service.
11. It is further submitted by the respondents that in the appointment order of the petitioner dated 30.09.1997 appointing her as a tutor in pharmacology in addition to certain other terms and condition, following was one of the conditions;
"They should apply to the Gujarat Public Service Commission when the post is advertised by the commission in future. If they fall to apply or fails to appear for interview or if, they are not selected by the Commission then their services will be liable to be terminated forthwith."
12. It is further contended that the Government Resolution dated 27.08.1997 by the General Administration Department, State of Gujarat regarding guidelines and instructions for ad-hoc appointment makes it clear in Clause 6 that the persons, who are appointed on ad-hoc basis shall have to abide by following conditions in addition to other conditions of service i.e. in future as and when the Gujarat Public Service Commission or Gujarat Subordinate Service Selection Board or Panchayat Service Selection Board published advertisement for such post, the ad-hoc employee shall apply to such post and that if such candidate does not apply or does not appear for personal interview or are not Page 7 of 18 HC-NIC Page 7 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER selected in the recruitment process, then their ad-hoc services would be liable to be terminated without issuance of any kind of notice. Such condition further makes it clear that during such process, if recruiting agency could not find out regular employee then ad hoc employee would continue as such.
13. If we consider the rival submissions and law applicable to the situation on hand, though factual details may be in favour of the petitioner, in as much as, she was allowed to work on ad-hoc basis for 19 years, the legal preposition, even if it is disturbing the right of the petitioner and similarly situated litigants, who may have now crossed the age of eligibility for competing themselves for fresh recruitment and thereby in absence of employment, they may have to face financial and other set back, the fact remains that for years together they were aware about such situation, but they could not help themselves by clearing the competitive examination of selection process on such post and, thereby, if at all their first appointment was either illegal or irregular then in case of illegal appointment otherwise also they have to go home. Whereas in case of irregular appointment at the most there may be some benefit to them for fresh appointment, but in accordance with law and more particularly, without getting any undue advantage of the period for which, they have served. Thereby though such person may entitled to some benefit of his/her services as such viz regularlisation after continuing services for more than 10 years (in view of the judgment Page 8 of 18 HC-NIC Page 8 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER of Umadevi (infra) of the Honourable Supreme Court, which would be discussed herein after) or relaxation of age in competing selection process at the earliest.
14. In view of above facts and circumstances and legal position, which is emerging from all the relevant cases on the subject which are listed herein after at the relevant time, what is to be scrutinized at this stage, is only to the the effect that whether appointment of the petitioner at the relevant time was either illegal or irregular. If at all such appointment was not illegal and only irregular, then whether petitioner is entitled to same benefit, as available to other similarly situated eimployees because of such services as noted herein above or not.
15. The scrutiny of the record and basic facts which are recorded herein above, makes it clear that though appointment of the petitioner at the relevant time in the year 1993 could not be termed as illegal, since she was appointed by the respondents after following some process for the purpose, the fact remains that it is also not through regular selection process. The crucial issue is whether petitioner has compete herself for getting such post and secure her place as such where as a tutor she has to educate fresh students. The appointment order dated 30.09.1997 specifically discloses that petitioner was appointed purely on ad-hoc and temporary basis for 6 months or till the post is filled on regular Page 9 of 18 HC-NIC Page 9 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER basis or till further orders, whichever is earlier. The order also specifically conveyed the petitioner at the time of appointment that they may apply to the GPSC when the post is advertised by the GPSC in future and that if they fail to apply or fail to appear for interview or if they are not selected by the GPSC, then their services will be liable to be terminated forthwith. It is undisputed fact that in case of the petitioner though there was repeated advertisement for the post after her appointment in different years vize. 2002 - 03, 2005 - 06, 2007 - 08, 2009 -10 and 2015 - 16, she could not clear the competitive examination held by the GPSC on six occasions during the period between 2002 to 2016.
16. It seems that since petitioner falls under reserved category of SEBC and that as many as 19 posts were to be filled up in such category, probably respondents could not get any suitable candidate and, therefore, petitioner was continued as such till she was terminated.
17. Therefore, now if respondents have got the suitable candidate, who has cleared the competitive examination in competitive selection process, then petitioner has to give space to such candidate because otherwise also her services were ad-hoc, temporary and on condition that she has to clear the competitive examination conducted by the GPSC which she could not clear even on six occasions between the year 2002 and 2016.
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18. As against that, submission of the petitioner is to the effect that irrespective of her inability to clear the competitive examination by the GPSC, since she is continued for 19 years, she is ready and willing to serve at any college in the State and, hence, she may be transferred to any college, but not terminated and if terminated she may be reinstated. In support of such submission, petitioner is relying upon a communication dated 27.04.2017 by the Government Medical College, Bhavnagar, wherein it is disclosed to the petitioner under Right to Information Act that there are Four vacancies of tutor in the subject of pharmacology with such college. It is also contended that in M. P. Shah Government Medical College at Jamnagar, there are Five such vacancies and, therefore, it is her submission that she may be accommodated at any other college. 18.1 In addition to above grievance, it is also contended that one Dr. Bharat Maru is continued as such at Government Medical College, Bhavnagar and Dr. Maksook Salot is continued as such at Government Medical College, Jamnagar.
19. So far as continuity of services of above two persons is concerned, respondents have clarified that there is order in favour of Dr. Bharat Maru by this Court in Special Civil Application No.1035 of 2007 that he should not be terminated. Whereas there is similar order in favour of Dr. Salot by the Civil Court and, Page 11 of 18 HC-NIC Page 11 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER therefore, such order of the Civil Court is under challenge in appropriate proceedings. Thereby, it is submitted that such benefit was not extended by the respondents on their own but it was because of judicial order and, therefore, there cannot be comparison with the case of the petitioner.
20. In view of above facts and circumstances, relying upon the legal position, which will be summarized herein after, at this stage, there cannot be an interim relief in favour of the petitioner so as to reinstate her immediately on similar post from where she is terminated because it is otherwise result of the factual details and legal position which cannot be interfered with, except observing that if at all there is vacancy in pharmacology department either in Government College, Bhavnagar and M. P. Shah Government Medical College, Jamnagar or at any other college where petitioner can be accommodated it would be appreciate for the respondents to reinstate the petitioner and to accommodate her at such place considering her length of service and liability towards her family, as pleaded in the petition.
20.1 In above background, if we consider the legal position, one thing is also required to be recollected here that while extending the benefit of continuity of serves, it is also to be considered that such continuity of services is not pursuant to seal or order of the Court proceedings whereas in the present case prima facie it seems Page 12 of 18 HC-NIC Page 12 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER that petitioner was having protection/seal of this Court in continuing her services till her termination. In view of such fact, she may not be entitled to the benefit which is otherwise available to some adhoc employees pursuant to decisions which are referred herein under;
21. The relevant judicial decisions touching the subject and issue may be recollected as under;
(1)Special Civil Application No.25417 of 2006 between the parties wherein on 23.03.2007, the co - ordinate bench has while directed the petitioner to file representation and respondents to consider her case as the case of Dr. Maru, directed to maintain status quo also and, therefore, services of the petitioner was to remain continued till date. Whereas in Special Civil Application No. 1035 of 2007 by an order dated 18.01.2007, the same Court while admitting the petition confirmed the interim relief protecting the services of Dr. Maru, whose petition is still pending. Therefore, at this stage instead of dismissing this petition, it would be appropriate to tag this matter with Special Civil Application No. 1035 of 2007.
(2)Whereas for similar issues when another co-ordinate bench has refused to grant relief in favour of similar situated ad-hoc employees, they have preferred Letters Page 13 of 18 HC-NIC Page 13 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER Patent Appeal No.2986 of 2010 and allied matters. However, the division bench of this Court has by judgment dated 07.09.2011 for similarly situated employees observed and held as under, which shows that in fact the division bench has chased the recruitment process in such college and recruitment of regular lecturer and tutor was completed by concerned department pursuant to the directions by the High Court and during such process when employees like present petitioners were disturbed, the division bench has after narrating factual details and other details observed as under;
"On merits, we do not find any justification to regularize any one or the other adhoc lecturers against regular posts for two reasons, viz:
[i]. They were not appointed after following the procedure for appointment.
[ii]. Their continuation in service for number of years do not cloth them with any right to regularization as they were appointed with open eyes that their appointments were adhoc in nature till regular appointments are made through GPSC.
We have noticed that many of the adhoc appointees have crossed the age limit and may not be eligible for consideration for appointment on regular basis and therefore, they could not take part in the recent selection. Having noticed such situation, we have already given liberty to the respondents to frame a scheme for them, if the State so intends.
We have also noticed that pursuant to the directions issued by this Court, GPSC has completed the process of selection and has already recommended names of 1007 candidates. However, even after such recommendation, 1106 posts are vacant for which again a fresh selection Page 14 of 18 HC-NIC Page 14 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER process should start after requisition by the State."
21.1 Though there may be some differences in position of vacancies, the above principle would be applicable in present case also which restricts the Court to grant an interim relief in Civil Application.
22. Reference to following judgments are material to appreciate the issue in proper perspective;
(1) State of Haryana & Ors. vs. Piara Singh & Ors. reported in AIR 1992 SC 2130, wherein though it is stated that the State must be a model employer, the Court must act with due caution while giving directions for regularisation of services. An adhoc appointment can be done only if vacancy is available and he was supported by the employment exchange or selected pursuant to completion of the selection process. Therefore, it was observed that each State should frame the scheme for regularizing all such adhoc employees and that an adhoc or temporary employee should not be replaced by another ad hoc or any temporary employee, but he must be replaced by regular selected employee only. So far as continuity of adhoc employee for a fairly a long time is concerned, the authority must consider his case for regularization provided he is eligible and qualified according Page 15 of 18 HC-NIC Page 15 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Therefore, there is no absolute right of adhoc employee to get regularization.
(2)State of Karnataka vs. Umadevi reported in AIR 2006 SC 1806 by the Constitution Bench, which practically confirms the view taken in the judgment in case of Piara Singh (supra) wherein it is observed and opined that employees who were continued to work for 10 years but without intervention of the orders of the Court or tribunal may have to be considered on merits but this exercise is practically one time exercise after such judgment. However, at the most it can be extended from time to time if there are adhoc employees even thereafter. But in any case, it nowhere dilutes the observations in Piyara Singh (supra) in any manner but in any case, it adds some more strict conditions like continuous work for 10 years without intervention of Court's order. Such judgment holds the field since then being judgment by the constitution bench and yet not over- ruled though there are few different judgments or decision by different Courts by regular benches of the Honourable Supreme Court and, therefore, those judgments need to be ignored.
(3) It is undisputed fact that judgment of Piyara Singh (supra) is by three judges bench and and latest judgment of State of Page 16 of 18 HC-NIC Page 16 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER Jammu and Kashmir vs. District Bar Association reported in AIR 2017 SC 11 is material to be recollected here wherein three Judges bench of the Honourable Supreme Court has again made it clear that regularization is not a source of recruitment, nor is it intended to confer permanency upon appointments which have been made without following the due process of law envisaged by Article 14 and 16 of the Constitution of India. By clarifying the decision of Umadevi (supra) it is observed that principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding State to frame a scheme for regularization.
23. In view of above facts and circumstances relying upon the case of State of Jammu and Kashmir (supra) and Umadevi (supra) at this stage it would be appropriate to tag this matter with Special Civil Application No. 1035 of 2007 for final disposal to avoid conflicting decision for similarly situated employees of same department but without interim relief as prayed for in Civil Application for reinstatement but with a direction to respondents to consider the case of the petitioner for her reinstatement or fresh adhoc appointment in any other college where there is vacancy in similar post.
24. Therefore Rule, this Civil Application with main Special Civil Page 17 of 18 HC-NIC Page 17 of 18 Created On Sat Sep 16 14:44:43 IST 2017 C/CA/4886/2017 CAV ORDER Application No. 2108 of 2017 is ordered to be tagged with Special Civil Application No. 1035 of 2007 for final disposal. Though interim relief is refused, respondents are directed to consider the case of the petitioner for her reinstatement or fresh adhoc appointment in any other college where there is vacancy in similar post.
(S.G. SHAH, J.) drashti Page 18 of 18 HC-NIC Page 18 of 18 Created On Sat Sep 16 14:44:43 IST 2017