Gujarat High Court
Shah Swati Navneetlal vs State Of Gujarat on 16 September, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/4583/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4583 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 4583 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5285 of 2018
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 5285 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5285 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SHAH SWATI NAVNEETLAL
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR PREMAL NANAVATI with MS AVANI V PATEL(8016) for the Petitioner(s)
No. 1
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER assisted by
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1,2,4
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 1
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NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 16/09/2020
ORAL JUDGMENT
1. Both these petitions are arising out of the same subject matter and subject matter of SCA No.21033 of 2016. The arguments were heard jointly and therefore, with consent of the parties, the petitions are being disposed of by this common judgment and order. The facts are taken from SCA No.4583 of 2018.
2. This petition under Article 226 of the Constitution of India is filed by the petitioner, who is appointed as a ad-hoc lecturer, Class-II in State Model Ayurveda College, Kolvada, Gandhinagar with a prayer clause as under:-
(B) Be pleased to issue a writ order or
direction directing the respondent to
regularize the service of the petitioner for the post of lecturer (Class-II).
(C) Be pleased to pass an order directing the respondents to consider the recruitment procedure followed while selecting the petitioner for the post of lecturer as a regular selection procedure."
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3. The petition came to be admitted by an order dated 1923.03.2018 and service conditions are protected. Then after, the State Government passed orders dated 12.06.2020 and 13.06.2020 which were the orders of appointment of selected candidate as lecturer after the due selection procedure by the Gujarat Public Service Commission (for short "GPSC"). The order dated 12.06.2020 was passed for discontinuing the services of the petitioner as ad-hoc lecturer in view of the available GPSC selected candidates and therefore, the petitioner filed Civil Application with the main matter praying, inter alia, for staying the implementation and execution of orders dated 12.06.2020 and 13.06.2020. The application also sought for prayer to restore the services of the petitioner as lecturer, Class-II with the respondent No.5-college.
4. Learned Advocate Mr.Premal Nanavati for the petitioners adopted the arguments advanced in SCA No.21033 of 2016 and under the instructions of the petitioners additionally submitted that there is change in the policy of the State Government pertaining to teaching hours, as a result of which requirement of the teachers would also be increased and therefore, the petitioners could be adjusted if requirement of number of Page 3 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT teachers is increased. The matters were thereafter adjourned for learned Government Pleader to take instructions specifically on this issue, to which learned Government Pleader makes a statement that as on date, there is no such policy in offering. In fact, policy is not to appoint any candidate on ad hoc basis and only GPSC selected candidates are to be appointed. 3.1 Learned Advocate submitted that the petitioner is now aged 47 years and had surpassed the age limit of securing the Government employment for lecturer. It is submitted that though it is incumbent for the State/GPSC to conduct the examination for selection of lecturer periodically during the entire period of services of the petitioner, only once such examination was held by GPSC and that too after long period of 7 years and 3 months and therefore, the petitioner is deprived of her right to appear more than once in such selection examination and get selected. The examination which was conducted once the petitioner was not successful however, as the respondents have not conducted any other examination prior thereto or thereafter, the petitioner for no fault of her has to lose her chance to appear once again in the selection examination.
3.2 Learned Advocate submitted that at present the Page 4 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT selection procedure undertaken has selected seven
lecturers, out of which five have been posted as only five colleges within the State are functional, whereas two selected candidates have not yet given posting apparently on account of non-availability of functioning colleges. If five are appointed and two are yet to be appointed, then, the petitioner who is well experienced in teaching and is also qualified, is required to be accommodated. Learned advocate submitted that for the purpose of teaching, it is required that a candidate must be well worked and must have proper experience of teaching. By drawing attention to sur-rejoinder, it is submitted that the respondent authorities have posted on deputation to work as lecturers by an order dated 09.01.2020, Medical Officers, who have no teaching experience and they have worked only in Community Health Center/Public Health Center and Ayurvedic Hospitals. Posting such un-experience medical officers on the post of lecturer and that too on deputation is not only against the interest of the students, but would also indicate that in the colleges imparting education of Ayurvedic, vacant posts are still available where the petitioner can be accommodated. It is therefore, submitted that it would be in the interest of the students as well as the respondent authorities to permit the petitioner to continue to work as ad-hoc lecturer and Page 5 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT that she can be accommodated even on the post of lecturer for subject other than Sanskrit for which she was selected.
3.3 Learned advocate submitted that the petitioner has legitimate expectation to be regularized as the petitioner has discharged her duties with full honesty and integrity and that too for a period of more than 10 years and that since it is in the interest of the institution and that she is ready and willing to discharge her duty in any of the colleges under the respondent-State and perform her duty to teach any other relevant subject, the case of the petitioner deserves consideration. It is submitted that on account of inaction of the State in not conducting the timely selection procedure, the petitioner is not only deprived of her present employment, but has lost all her chances to regain Government employment on account of the age limit. Hence, also the petitioner is required to be regularized.
3.4 Learned advocate for the petitioner referred and relied upon the decision of this Court in the case of Acharya Madhvi Bhavain and others Vs. State of Gujarat & Anr., in CAV common judgment dated 07.09.2016 in Special Civil Application No.8152 of 2015 and allied matters, Page 6 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT wherein the petitioner has relied upon para-63, wherein this Court relying upon the Division Bench suggestion in Letters Patent Appeal No.2986 of 2010 has observed that the State to consider to frame a scheme to relax the age and select qualified and experienced ad-hoc lecturer through any limited competitive examination however, the State has not taken any action of such recommendation. Moreover, the judgment in Special Civil Application No.8152 of 2015 was subject matter in Letters Patent Appeal No.1184 of 2017 and allied matters, wherein also the observations made in Special Civil Application were not disturbed. The State has therefore failed to frame any policy and had the State framed any such policy, the petitioner would have been benefited more particularly when the petitioner is a candidate who was selected by the committee and only on the basis of a selection procedure, the petitioner was given an appointment as ad- hoc lecturer. Therefore, it cannot be ever said that the appointment of the petitioner is illegal appointment and therefore, also the petitioner has made out her case for regularization of services.
3.5 Learned advocate has thereafter, relied upon the decision of the Apex Court in the case of Chander Mohan Negi & Ors. Vs. State of Himachal Pradesh & Ors., reported in 2020 SCC Online SC 374. It is submitted that Page 7 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT the Apex Court has upheld the view that when employee appointed under scheme and has completed 15 years of service then such employee cannot be denied regularization.
3.6 Learned advocate for the petitioner tried to draw analogy with the post of demonstrator and submitted that this Court had intervened in the cases filed by the demonstrators and directed regularization of their services. The same methodology is required to be adopted in case of the petitioner also. Learned advocate for the petitioner had relied upon the judgment of Division Bench of the Himachal Pradesh High Court in the case of Pankaj Kumar Vs. State of Himachal Pradesh & Ors., reported in 2014 SCC Online HP 5944, and draw attention of this Court to the observation in para-50 of the aforesaid judgment to indicate that the State Government has utilized the services of the teachers since 2003 and such teachers have given up their youth while performing their duties and there was legitimate expectation and therefore, regularization had to be considered as such teachers were not only bread winner, but their matrimonial home is affecting their children for no fault of them. 3.7 Learned Advocate lastly submitted that there are several openings with the respondent Department and Page 8 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT that too in various other subjects, wherein the petitioner can be accommodated and therefore, the case of the petitioner is required to be considered liberally. Learned advocate emphasis that considering the ratio required to be considered between the students and teaching staff as well as new establishment coming up now, the Department of Health and Family Welfare within Gujarat, the petitioner can be easily accommodated however, till the regularly appointed GPSC candidate is available to fill up all the posts which otherwise would lay vacant.
4. As against this, learned Government Pleader Ms.Manisha L.Shah, appearing for the respondent-State submitted that the petitioner was appointed vide order dated 05.03.2010 as lecturer (Sanskrit), Class-II on ad- hoc basis alongwith other such candidates. The terms of their appointment were very clear and categoric and once such term stipulated that the right of the petitioner to continue on the post is only for a period till GPSC selected candidate is available. It is submitted that after the selection proceedings undertaken by GPSC, the selected candidate are now available for all the posts of lecturer in Sanskrit, Class-II and therefore, the petitioner being an ad-hoc candidate will have to make way for the regularly selected candidate or else continue Page 9 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT the petitioner on the same post would entail injustice to regular selected candidate.
4.1 Reliance is placed upon the unreported judgment of this case in the case of Panjwani Pooja Murlidhar & Ors. Vs. State of Gujarat in Special Civil Application No.709 of 2014 and contended that once set of ad-hoc employee cannot be substituted by another set of ad-hoc employee and therefore, the case was justified in undertaking the process of selection through GPSC. Reliance is also placed upon unreported decision in Letters Patent Appeal No.2986 of 2010 in the case of Hiren N.Upadhya & Ors. Vs. Bhavik M. Patel & Ors. wherein attention is drawn on the conclusion given by the Division Bench in the cases of ad-hoc lecturers. It is emphatically submitted though with the same kind of sympathy, the case of the petitioner cannot be considered as not a single seat of lecturer in Sanskrit is at present vacant and therefore, there is no question of accommodating the petitioner by continuing her as ad-hoc lecturer.
4.2 It is submitted that contentions of appointment of Medical Officers on deputation cannot come to the rescue of the petitioner for the simple reason that all the appointments made on deputation is for the subject Page 10 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT other than Sanskrit. For the other subjects, requirements of which deputed candidates are satisfying. In any case, the petitioner who is a qualified as a lecturer for Sanskrit subject cannot be considered for the subject other than Sanskrit. Attention is drawn to the order dated 09.01.2020 to indicate that the candidates sent on deputation were for specialized subject like Pregnancy, Panchkarma, Shalyatantra, Karya Chikitsa etc. Therefore, also the case of the petitioner cannot be considered on this ground.
5. The Court has heard learned Advocates for the parties and perused the documents placed on record. The petitioner 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 Application, the petitioner was appointed based on 14 conditions. The relevant for the purpose of this case would be condition No.7 which means that the order of appointment of the candidate would automatically stand canceled after expiry of six months or availability of GPSC selected candidate unless specific order is passed to continue the petitioner. It appears that from time to time on account of non- availability of GPSC selected candidates, the appointment Page 11 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT of the petitioner came to be extended periodically.
6. A contention is raised by learned Advocate for the petitioners that vide order dated 23.03.2018, by way of ad interim relief, service conditions of the petitioner were ordered not to be altered till the next date and therefore, action of the respondents which is challenged by way of Civil Application has to be strongly deprecated and the impugned communications are required to be stayed by reappointing the petitioner either to the post of Ridder (against the post) or till the next qualified GPSC candidate is available.
7. From the order sheet, the Court finds that ad interim relief granted was limited till the next date and has not been extended. Moreover, the said order is passed on the basis of submission made by learned Advocate for the petitioners that petition being SCA NO.23316 of 2017 being similar, the Court has entertained. The record of the Court indicates that SCA No.23316 of 2017 refers to and relies upon yet another order in SCA No.2100 of 2017 and allied matters and the interim order in SCA No.2100 of 2017 in turn refers to and relies upon an order in SCA No.709 of 2014, which came to be disposed of by judgment dated 20.02.2014 and which refers to the direction to continue the petitioners Page 12 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT in those petitions till availability of GPSC selected candidates. In that view of the matter, submission of learned Advocate for the petitioners cannot be accepted based on ad interim relief granted. Thereafter, nothing is placed by the petitioner with regard to outcome of SCA No.23316 of 2017.
8. Clause 10 of appointment 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.
9. ` 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 Page 13 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT candidates are waiting for the appointment, however, the appointment could not be given on account of non- availability of the vacant post.
10. It has also come on record that the petitioner herself had appeared for the selection process, but has failed to be considered in the process for selection of lecturer (Sanskrit) Class-II and therefore, as per the condition of appointment letter particularly condition No.10, the petitioner loses all the rights to be continued as an ad-hoc lecturer.
11. Over and above that, now when the candidates by GPSC are available as condition 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 appointment.
12. Insofar as regularization of the petitioner 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 prescribed, the Court cannot go beyond the prescribed mode of appointment to give direction for regularizing the petitioner which has Page 14 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT effect of giving the appointment on the post sanctioned. The principle of law in public employment envisages the specific procedure so that the general public has equal opportunity to compete. The petitioner did compete, but did not succeed and therefore, no indefisable right is created in favour of the petitioner to continue on the post.
13. 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 judgment would indicate that the issue was with regards to the appointment of teacher made under the Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003 and the question that was for consideration before 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 fundamental right, and are poor, read with the fact that the regular/contractual teachers 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 Page 15 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT teachers have lost their youth in performing 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 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."
14. 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 issue 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 inclined to consider the cited judgments in favour of the petitioner.
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15. 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 examination. 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 question so far as raised in Special Civil Application No.8152 of 2015 was considered in para-7.1 by the Letters Patent Appeal Bench which is limited to the extent to consider putting all the ad-hoc lecturers appointed after May-2008 on par with all those ad-hoc lecturers appointed 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 Appeal 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/Lecturers by ad-hoc Lecturers/Professors for number of years. To continue such post on ad-hoc basis shall not be in the large Page 17 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT interest of the students. Therefore, all efforts shall be made by the State/GPSC to see that the post of Lecturers/ Professors/Assistant Professors /Assistant Lecturers/ Teaching Staff in the Polytechnics/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 teaching staff through selection process by GPSC.
16. Insofar as the analogy drawn for the post of demonstrator, it would be pertinent to reproduce the explanation given by the State Government which is quoted hereinbelow.
"(a) It is most humbly stated that the Special Civil Application No.4787 of 2016 to 4790 of 2016 is preferred by the ad-hoc appointee as Demonstrator. The post of Demonstrator was in Grade III, but these posts are upgraded in Class II on 05.10.1981. The Recruitment Rules for the post of Demonstrator in Class II were not framed. The Recruitment Rules for the post of Demonstrator were finalized on 29.05.1991. That in absence of the Recruitment Rules for the post of Demonstrator Class II, the Government was finding the difficulty in filling up the Posts of the Demonstrator and hence decided to appoint on Ad-hoc basis till the Recruitment Rules are finalized. The ad-hoc appointment for the Demonstrator Class II is made in the year 1984 and 1987. That after finalization of the Recruitment Rules, Government has taken a decision to recruit the post of Demonstrator Class II through the Gujarat Page 18 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021 C/SCA/4583/2018 JUDGMENT Public Service Commission (GPSC).
(b) It is stated that the State Government has sent indent to the GPSC for the filling of the post of Demonstrator Class, in the year 1992. At the relevant time, the Ad-hoc appointee has preferred a Special Civil Application No. 2837 of 1992 before this Hon'ble Court. This Hon'ble Court has not granted the regularization, but order to continue the ad-hoc appointee for the Post of Demonstrator, Class II till the regular candidates made available through the GPSC.
(C) It is stated that an indent for the 22 Post of Demonstrator-cum-Tutor was sent to GPSC ON 20.04.2007, and Advertisement was also published, but indent was rejected on the ground that the posts of Demonstrator-
cum-Tutor was redesignated as Lecturer Class II by the Resolution dated 04.01.2008. Thus, the ad-hoc services for the post of Demonstrator was continued in service and retired as Ad-hoc or about to retire as Ad-hoc.
(d) The ad-hoc appointee for the post of Demonstrator has preferred a Special Civil Application No. 4787 of 2016 to 4790 of 2016, for the payment of the retirement benefits. That some of the ad-hoc appointees were retired or about to retire, and looking to long services the State Government have consulted the GPSC for regularizing the service of Ad-hoc Demonstrator, but the same was rejected.
e) The Hon'ble High Court has passed an Order
dated 29.3.2016 in Special Civil
Application No. 4787 of 2016 to 4790 of
2016 to grant the retirement benefits."
17. The aforesaid submission being acceptable to this Court, the Court does not deem it fit to put the case at par with the case of demonstrator. Page 19 of 20 Downloaded on : Sat Feb 27 13:55:12 IST 2021
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18. 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 petitions therefore deserve to be and are hereby dismissed. Notice is discharged. No order as to costs.
19. In view of the order passed in the Special Civil Applications, the Civil Applications do not survive and stand disposed of.
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