Gujarat High Court
Niraj Devshibhai Mehta vs State Of Gujarat on 26 February, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9676/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9676 of 2015
NIRAJ DEVSHIBHAI MEHTA
Versus
STATE OF GUJARAT
Appearance:
HARSH V GAJJAR for the PETITIONER(s) No. 1,2,3,4,5,6
MR DM DEVNANI AGP for the RESPONDENT(s) No. 1, 2,3, 6,7
DS AFF.NOT FILED (N) for the RESPONDENT(s) No. 1,2,3,4,5,6,7
MR MJ MEHTA for the RESPONDENT(s) No. 5
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 26/02/2018
ORAL ORDER
Heard Mr. Nanavaty, learned advocate, with Mr. Gajjar, learned advocate for the petitioners, Mr. Devnani, learned AGP for respondent Nos.1, 2, 3, 6 and 7 and Mr. Mehta, learned advocate for the respondent No.5.
2. In this petition, the petitioners have prayed, inter alia, that:-
"9(A) By issuing an appropriate writ, order or direction, Your Lordship may be pleased to quash and set aside the impugned common termination order passed by Respondent no.2 dated 10/6/2015, which is at Annexure-A to the petition."
2.1 By the order impugned in present petition, six petitioners came to be informed that their appointment on ad-hoc basis stand terminated upon conclusion of the period for which they engaged on ad-hoc basis.
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3. So far as factual background is concerned, the petitioners have averred and stated that:-
"3.1 Petitioners submit that the petitioners were originally appointed as Lecturers in the Government Ayurved Colleges pursuant to the advertisement issued by the respondents at the relevant time and were initially appointed on adhoc basis for a period of six months. Thereafter their services have been continued from time to time as Lecturer at various places. All the petitioners after having completed five years of their service and having become eligible for being appointed on promotional post as Reader, as per availability of the post of Reader in the Government Ayurved Colleges, all the petitioners have been appointed as 'Reader' in the Government Ayurved Colleges at different places as mentioned n the cause title. It may be mentioned that all the petitioners have been appointed on the promotional post vide order dated 1/3/2014. Annexed hereto and marked ANNEXURE-B is copy of one such appointment order in the promotional post as 'Reader'. Petitioners submit that to better appreciate the facts in respect of each petitioner and to have meticulous data, the history of services in respect of each petitioner is produced at ANNEXURE-C in a tabular form indicating details in respect of their original appointment in the post of lecturer and thereafter in the promotional post as Reader and their present place of service.
3.1.1 The petitioners submit that petitioners L have been appointed as Lecturers and thereafter as Readers after following due procedure as required for recruiting employees in the public employment by issuing advertisement and after conducting interviews by considering their respective merits. For appointment as Readers, the advertisement was published on 28th January, 2014 in Gujarat Samachar Daily and thus petitioners, for all purposes' are qualified and regularly selected candidates and therefore, their services cannot be terminated in the manner in which it is sought to be done. The petitioners crave leave to refer to and rely upon the said advertisement in support of this petition.
3.2 Petitioners submit that in the State of Gujarat there are 4 Ayurved Colleges run & managed by the State of Gujarat, viz. at Ahmedabd, Junagadh, Bhavnagar and Vadodara. All these colleges are granted recognition by Central Council of Indian Medicine (hereinafter referred to as 'CCIM' for short) and CCIM as a controlling body has prescribed certain norms called 'Minimum Standard Requirement, 2012 (hereinafter refe4rrecd to as 'MSR,2012' for short) and according to said standard prescribed by CCIM, which is the body authorized to grant recognition to respective colleges at India level, and looking to the colleges at Junagadh, and Bhavnagar on the basis of strength of students admitted by respective colleges, the number of teachers required in respect of each discipline is much less than the prescribed norms and as per the required faculty in the cadre of Reader in respect of colleges at Junagadh and Page 2 C/SCA/9676/2015 ORDER Bhavnagar would be 15 in each college. The number of Readers in the respective colleges after termination would be reduced to much below the required norms. Moreover as per the prescribed norms the faculties are required to be considered on the basis of strength of the students availability in particular college. The respondents are conscious of this fact and therefore in the termination order itself it is specifically indicated that the termination order is passed because of the tenure has come to an end in March 2015, and with a view to invite fresh applications to fill-up posts petitioners have been terminated. This action of the respondent is ex-facie illegal, since what is being contemplated is to replace adhoc employees in the set up by way of another set of adhoc employees. Annexed hereto and marked ANNEUXRE-D is copy of Schedule-V attached to Minimum Standard Requirement, 2012.
3.3 Petitioners submit that the respondents are in the habit of flouting the law laid-down by this Hon'ble Court also, and are exploiting employees like the petitioners as much as they can. In fact all the petitioners were appointed on adhoc basis in the post of Lecturer as per the respective dates mentioned in the tabular form/chart produced at Annexure-C above, and services of the petitioners were terminated in a similar fashion in the past and therefore petitioners have to prefer similar writ petition and appeal being LPA No. 1196 of 2010 and other allied matters, and this Hon'ble Court has protected the services of the petitioners by restraining the respondents from terminating services of the petitioners until the regularly appointed GPSC selected candidates are available. Annexed hereto and marked ANNEXURE-E is copy of said order passed by this Hon'ble Court in LPA No. 1196/2010 dated 9/7/2010 in support of this petition. Thereafter proper resolution was passed to continue the petitioners in their service and petitioners have been continued in the service as lecturers. Subsequently, on completion of their 5 years experience and having become eligible to be appointed on the promotional post as 'Reader' they have been appointed in the post of Reader w.e.f. 1/3/2014. Again after a period of one year and as soon as the tenure of appointment came to an end in the month of March 2015, petitioners services are sought to be terminated after 14 months of their respective appointment and that too with a view to appoint another set of employees in place of the petitioners by inviting fresh applications. It may not be out of place to mention that so far as petitioners are concerned petitioners are fortunate that at least for the period for which petitioners have served, the salary as prescribed in the appointment orders have been paid to the petitioners. However in respect of one professor and five Readers of Ayurved College at Ahmedabad, after February 2015 even salary for remaining 3 months have not been paid and thus respondents are in the habit of exploiting the employees like the petitioners. In fact there is inter-departmental circular issued by General Administration Department to see that persons like petitioners may not have to undergo such mental agony of unnecessarily entering into litigation and to see that once Page 3 C/SCA/9676/2015 ORDER the Court have decided the issue, atleast mistake may not be repeated by the respondents side which jeopardize interest of the Government in monetary terms. Annexed hereto and marked ANNEXURE-F is copy of the said circular/administrative instruction issued by General Administrative Department dated 22/8/2014 to all the departments. Inspite of said specific circular and administrative instructions, the concerned respondent is persistently passes such termination order every year and put the petitioners to undergo such mental torture and also great monetary loss for filing such proceeding before the Court of Law and such inhuman treatment is being given to the petitioners who are doing laudable services of imparting education in the field of Indian Medicine of Ayurved & Homeopathy.
3.4 Petitioners further submit that to avoid de- recognition of Government Colleges while furnishing data to the parent body CCIM every time they send details by mentioning names of the petitioners and other similarly situated employees as having been in service and thereafter immediately precipitate impugned action by terminating services after being obtained necessary recognition from the parent body. This clearly show that the impugned action is taken in a colourable exercise of power, which is arbitrary and violative of Article 14 & 16 of the Constitution of India and is ex~ facie illegal and inspite of several orders passed by this Hon'ble Court from time to time in respect of same department, every year the respondents are repeatedly going on with their illegal action. Moreover it is significant to note that present termination order has been passed alter inspection has carried out by CCIM in the month of January and February 2015. Therefore at the time of inspection to show adequate strength of the faculties in respective colleges, petitioners names have been showed to meet with the required norms so as to avoid de-recognition of the colleges and thereafter before commencement of the new academic year the students will be enrolled by keeping CCIM in dark regarding such termination orders effected against respective petitioners and such posts will be eventually filled-up by inviting fresh application as indicated in the termination order itself. To substantiate this contention the affidavit in the proforma obtained from the petitioners so as to demonstrate before the CCIM that respective colleges are having required strength of faculties on the basis of strength of the students, are submitted to CCIM inter alia assuring the authority that the petitioner will remain in service for full academic year so as to avoid de-recognition. One such affidavit is produced at ANNEXURE-G. 3.5 Petitioners submit that thus right from the beginning respondents are appointing petitioners and other similarly situated persons in the employment as teaching faculty particularly in Ayurved Colleges on adhoc basis and right since Ayurved Colleges have been run & managed by appointing such adhoc teachers and since last many years GPSC has not conducted any examination to recruit teaching faculty in the Page 4 C/SCA/9676/2015 ORDER Ayurved colleges. Since last 10 years at regular interval teaching staff have been appointed by publishing due advertisements and if otherwise the concerned candidate is having adequate qualification as required and on completion of the tenure under adhoc appointments services of the petitioners and other similarly situated persons have been sought to be terminated. On every occasion, this Hon'ble Court has to intervene and one such order in respect of petitioner has been produced hereinabove. In fact yet another petition by other similarly situated employees was filed before this Hon'ble Court being Special Civil Application No. 12156 of 2014 and this Hon'ble Court vide order dated 2/9/2014 protected services of said employees. Annexed hereto and marked ANNEXURE-H is copy of said order dated 2/9/2014. Thus it is crystal clear that; (1) the respondents required services of the petitioners and reducing the strength would immediately invite de- recognition of the college; (2) have already enrolled students and therefore services of the petitioners cannot be terminated in the midst of beginning of the academic year; and (3) for the purpose of avoiding de-recognition at the time of inspection carried out by CCIM in the month of January & February 2015, petitioners have been showed to be in service and after their motive of continuing recognition of colleges are over, services of the petitioners have been sought to be terminate, that too with a clear understanding that fresh application to appoint Reader will be invited.
3.6 The respondents are aware about law on the subject that adhoc employees cannot be replaced by another set of adhoc employees and the respondents are facing several petitions filed by such affected petitioners, some of them have been finally disposed of by holding that adhoc employees cannot be replaced by another set of adhoc employees. Inspite of that, every year such termination orders have been passed. Thus on the basis of this admitted position the impugned action of termination, terminating services of the petitioners is not only arbitrary, illegal and violative .of Article 14 & 16 of the Constitution but is also contemptuous in nature and time has ripened not only to interfere with the impugned action but to hold the erring officer accountable for . perpetuating such illegality and putting the innocent hard working teachers to such difficulty and expose them to undergo monetary loss as also mental tortune for unnecessarily pursuing litigation.
3.7 Petitioners submit that thus by common impugned order the services of the petitioners have been terminated by respondent no.2 at Gandhinagar. However individual order of termination as required has not been received by the petitioners and therefore same is not implemented so far by Respondent nos. 6 & 7 colleges. The petitioners have been reliably learnt that Respondent no. 6 and 7 have been instructed to pass and issue individual termination order against each respective petitioner and therefore said exercise will be carried out immediately. Therefore present petition is filed within time."
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4. From the said facts, it comes out that the petitioners came to be appointed as Lecturers on ad-hoc and fixed period basis and on fixed remuneration basis.
The very advertisement under which the applications were invited clarified that the
appointments would be for fixed period and on ad- hoc and fixed remuneration basis.
With the knowledge that the appointment is ad-hoc and for fixed period and fixed remuneration, the petitioners submitted their applications.
When the petitioners came to be appointed with said specific condition, they accepted the appointments.
The appointments of the petitioners have been continued / extended from time to time by the competent authority of the respondents.
4.1 Subsequently, in June 2015, the respondents issued common order/resolution dated 10.6.2015 whereby the government declared the decision to discontinue the service of the persons who came to be engaged on ad-hoc basis for fixed period and on fixed salary.
Feeling aggrieved by the said intimation, the petitioners preferred this petition and challenged the decision/resolution dated 10.6.2015.
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5. One of the main grounds on which the petitioners challenged the said decision and above mentioned resolution is that, the action of the respondents terminating their service is unjustified because the respondents want to engage another set of employees on ad-hoc and fixed term basis.
Differently put, the respondents want to replace ad-hoc appointees by another set of ad- hoc appointees.
The petitioners claim that the posts on which they are working are permanent posts and instead of filling up said posts / vacancies with regular appointees, the respondents at initial stage, filled up the posts by ad-hoc appointees and now by terminating service of such ad-hoc appointees, the respondents want to again fill up the posts by ad-hoc appointees.
It is claimed that if regular and permanent posts / vacancies on permanent posts were to be filled up by regularly appointed persons, then, the decision and action of the respondents would stand on different footing, however, the decision to replace ad-hoc appointees by another set of ad-hoc appointees is unjustified. It is also claimed that the termination without following procedure is also unjustified and improper and bad in law.
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6. Mr. Devnani, learned AGP and Mr. Mehta, learned advocate for respondent GPSC submitted that actually, the respondents have already initiated process of filling up posts by regular appointees and such process is under progress by respondent No.5.
7. In this background, Mr. Nanavati, learned advocate for the petitioners submitted that a group of similar petitions (i.e. Special Civil Application Nos.12156 of 2014 and connected matters) wherein identical facts were involved is decided by the Court vide order dated 20.6.2017. He tendered copy of said order which reads thus:-
"1. All these petitions are taken up together as the common question of law is involved in these petitions.
2. By way of these petitions, the petitioners have challenged the decision of respondents authorities to terminate the services of the petitioners through common resolution dated 28.8.2014 with a view to appoint another persons having similar qualifications in place of petitioners.
3. Brief facts leading to the filing of these petitions are that the petitioners are in teaching faculties of an Ayurved College respondent no. 4. All the petitioners were appointed as lecturers by the respondents as mentioned in the petitions. After such appointment, the petitioners served on the post since the date of their respective appointments. The petitioners no. 1 to 5 of SCA No. 12156/2014 have been appointed pursuant to the advertisement issued in the local news paper Gujarat Samachar dated 16.7.2008 inviting eligible candidates qualified for the purpose of appointment as ad-hoc Lecturer Selection Scale (Professor), Class-I. It is the case of the petitioners that the petitioners cannot be replaced by any another set of ad-hoc lecturers/doctors and they should be continued till regularly selected persons by the GPSC are appointed by the State Government.
4. The learned advocate for the petitioner has drawn attention of this Court to the earlier decision of this Page 8 C/SCA/9676/2015 ORDER Court in the case of Pradeepbhai Navinbhai Patel & Ors. vs. State of Gujarat & Ors., reported in 2014(2) GLH 501, wherein, it has been held that the frequent resort to ad- hocism ought not to have been made and process of ad-hoc appointment over and over till regular selected candidates are available, would be detrimental. This decision is based upon the earlier decision of Division Bench of this Court dated 7.9.2011 passed in Letters Patent Appeal No. 2986/2010. Para-35 of the said judgment reads as follow:
35. Accordingly, as a cumulative effect of the above discussion and for reasons stated hereinabove, and in view of the judgment of the Division Bench dated 7.9.2011 passed in Letters Patent Appeal No. 2986/2010 and connected matters, the petitions are partly allowed to the extent that the services of the petitioners as Assistant Professors/ Lecturers on temporary/contractual basis in Government Engineering Colleges and Government Polytechnics shall not be terminated, till regularly selected candidates by the GPSC are available.
5. On the other hand, learned counsel for the respondents has produced the copy of the advertisement issued by the GPSC, vide which, process has been started to fill up the vacancies on the regular basis.
6. In view of the earlier decision of this Court and in view of the advertisement having been issued by the GPSC, the present petitions are allowed. The petitioners will continue to occupy the post for which they have been appointed till regularly duly selected candidates by the GPSC are available."
7.1 From the said order, it comes out that the issue before the Court in said group of petitions was similar to the facts involved in present case, i.e. in relation to the teaching faculty in Ayurved college.
The said facts bring out that the persons concerned in the said group of petitioners were similarly placed as the petitioners in present case.
The said petitioners were also appointed on ad-hoc basis and when they apprehended Page 9 C/SCA/9676/2015 ORDER termination of service, they approached this Court.
In present case, the Court is informed that the respondent State has already submitted requisition to GPSC for regular appointments and the GPSC has commenced the process. Said aspect also emerges from the observation by the Court in paragraph No.5 of the said order dated 20.6.2017.
8. In light of said order dated 20.6.2017, Mr. Nanavaty, learned advocate for the petitioners submitted that in present case also, similar order may be passed.
8.1 Mr. Devnani, learned AGP, on instructions from the officer (who is present in the Court), confirmed the fact that so far as present petitioners are concerned, in respect of their cases also, the process of selection and appointment of teaching staff (in Ayurved colleges) on regular basis is under process.
He further submitted that the allegation or apprehension that the ad-hoc appointees are likely to be replaced by another set of ad-hoc appointees is imaginary, baseless and unjustified. He submitted that the posts / vacancies are to be filled-up by regularly selected persons and not by another set of ad-hoc appointees. He submitted that after the process Page 10 C/SCA/9676/2015 ORDER of selection is completed, the posts are to be filled up by regular appointees.
8.2 Mr. Mehta, learned advocate for the respondent GPSC also confirmed the said position. He clarified that actually process for selection and appointment of regular appointees on regular posts is under progress and on account of certain proceedings, said process is delayed. He also submitted that the posts are now to be filled up by regular appointees.
8.3 In that view of the matter, it appears that present petitions can be disposed of with clarification that the engagement of present petitioners should not be disturbed till regularly selected candidates through GPSC are available. However, there shall be exception for disciplinary action in accordance with law and/or attaining age of superannuation.
9. In view of this Court, it would not be just for the respondents to replace ad-hoc appointees by another set of ad-hoc appointees, however, in view of the clarification by Mr. Devnani, learned AGP and Mr. Mehta, learned advocate for the respondent GPSC, it has emerged that the apprehension of the petitioners viz. that they are to be replaced by ad-hoc appointees is not Page 11 C/SCA/9676/2015 ORDER correct.
Mr. Nanavaty, learned advocate clarified, at this stage, that the petitioners do not seek anything beyond the relief that they should not be replaced by another set of ad-hoc appointees. In light of submission and statement by learned AGP and the learned counsel for GPSC, the apprehension is ill-founded.
9.1 Under the circumstances, this Court is of the view that present petition can be disposed of with similar direction as contained in order dated 20.6.2017, with slight modification.
Consequently, following order is passed:-
[a] In view of the earlier decision of this Court and in view of the advertisement having been issued by the GPSC, present petition is allowed.
The petitioners will continue to occupy the post for which they have been appointed till regularly duly selected candidates by the GPSC are available or till they attain age for superannuation, whichever is earlier. Another exception is disciplinary action. In such case, the direction/restriction shall not apply.
Present petition accordingly stands disposed of.
((K.M.Thaker, J.) KDC Page 12