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[Cites 11, Cited by 0]

Gujarat High Court

Mulshankarbhai Bhulabhai Prajapati vs State Of Gujarat on 25 June, 2018

Author: C.L. Soni

Bench: C.L. Soni

         C/SCA/9024/2014                                      ORDER



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 9024 of 2014
                                 WITH
                  MISC. CIVIL APPLICATION NO.2 of 2015
                                   IN
               SPECIAL CIVIL APPLICATION NO.13676 of 2009
==========================================================
                MULSHANKARBHAI BHULABHAI PRAJAPATI
                             Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR KB PUJARA(680) for the PETITIONER(s) No. 1
MS NISHA THAKORE, ASSTT GOVT PLEADER(1) for the RESPONDENT(s)
No. 1,2,3,4
==========================================================
 CORAM: HONOURABLE MR.JUSTICE C.L. SONI

                              Date : 25/06/2018

                           COMMON ORAL ORDER

1. In Special Civil Application No.9024 of 2014 (to be referred as 'first matter'), filed under Article 226 of the Constitution of India, following prayers are made:-

(a) admit this petition and to issue notice for final disposal on returnable date;
(b) to direct the respondents to forthwith sanction the petitioner's pension case and to issue the Pension Payment Order and Death-cum-Retirement gratuity order and to pay all the retirement benefits in view of the petitioner's retirement on 30.6.2014 as Principal of DIET, Ahmedabad-

city on reaching the age of superannuation of 58 years;

(c) to restrain the respondents from altering the service-

conditions of the petitioner to his disadvantage in any manner whatsoever;

(d) to direct the respondent authorities to complete the formality of regularising the petitioner's ad-hoc service as Principal of DIET since 12.8.1997 at the earliest;

(e) to direct the respondents to pay interest @ 18% per annum or at the rate as may be directed by this Hon'ble Court on the delayed payment of the retirement benefits with effect from 30.6.2014;

Page 1 of 23 C/SCA/9024/2014 ORDER

(f) PENGING THE HEARING, AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to forthwith sanction the petitioner's Pension case and to issue the Pension Payment Order and Death-cum-Retirement gratuity order and to pay all the retirement benefits in view of the petitioner's retirement on 30.6.2014 as Principal of DIET, Ahmedabad-city on reaching the age of superannuation of 58 years, subject to further orders that may be passed by the Hon'ble Court.

(g) PENGING THE HEARING, AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to pay provisional pension to the petitioner with effect from 1.7.2014 until the petitioner's Pension Case is sanctioned;

(h) PENGING THE HEARING, AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to restrain the respondents from altering service conditions of the petitioner as Principal of DIET in any manner adverse to him;

(i) ......"

2. In Misc. Civil Application No.2 of 2015 (to be referred as `second matter`), the applicant has made following prayer:

"Be pleased to suitably modify the judgment and order dated 31.01.2014 passed in SCA No. 13676 of 2009 and clarify by expressly stating that the applicant is entitled to all consequential benefits including retiral benefits like pension etc. ...... in the interest of justice."

3. The petitioner of the first matter and the applicant of the second matter were appointed by different but identical orders dated 09.08.1997 for six months on ad hoc basis as Principal of District Education and Training Centre (DIET) subject to the terms and conditions attached thereto. Such appointments were made pursuant to the decision taken by the State Government, Education department vide Resolution dated 28.05.1997 for appointments of Principal and senior Lecturers of DIET on ad hoc basis. The petitioner and the applicant were amongst 11 persons appointed as Principal DIET on ad hoc basis. The conditions attached to the appointment orders specifically provided that since the appointment was purely ad hoc and as stop gap arrangement, the appointee would be liable to be discharged without any notice, that no Page 2 of 23 C/SCA/9024/2014 ORDER protection shall be available to the appointment and no right could be claimed in future, and that the appointment shall be for six months or till duly selected person by the Gujarat Public Service Commission (GPSC), was regularly appointed, which ever was earlier. By order dated 23.03.1998, annexed as Annexure-H to the first matter, such appointments were extended for period of more six months with clarification that such appointments shall not be continued after one year without the approval of the GPSC. Then by order dated 31.03.2001, the respondent no.2- Gujarat Council for Educational Research and Training (GCERT) discharged the petitioner, the applicant and other Principals from service w.e.f 03.04.2001 as the Government decided to put an end to the appointments of all principals after 31.03.2001. Against such decision of the Government, the petitioner, the applicant and other Principals filed Special Civil Application No.2303 of 2001 and allied matters before this Court. Such petitions were disposed of by order dated 30.04.2001, which reads as under:

Mr Vipul Pancholi, learned AGP states, under instructions from Mr BF Parmar, Section Officer in the Education Department of the Government of Gujarat, that as per the decision taken by the Hon'ble Minister for Education on 12.4.2001, the ad-hoc appointments under the Gujarat Council for Education and Teachers Training which were last continued till 31.3.2001 shall continue for a further period of six months from 1.4.2001 as a special case. The learned AGP states that in view of the said statement, the petitioners will be appointed as senior lecturers/principals on ad-hoc basis subject to the same terms and conditions on which they were appointed on ad-hoc basis earlier. The learned AGP further states that the petitioners will be taken back in service on ad-hoc basis as stated above, but the petitioners shall not be paid salary and allowances for the month of April, 2001 on the basis of the principle on `no work, no pay'.
2. The learned counsel for the petitioners states that though the petitioners will not claim salary and allowances for the month of April, 2001, the petitioners may be treated as in continuous service.
3. It will be open to the petitioners to request the authorities to treat the intervening period as continuous service and the authorities shall consider such a representation expeditiously Page 3 of 23 C/SCA/9024/2014 ORDER and in any case within one month from the date of receipt of the representation.
4. In view of the above, nothing further survives in these petitions at this stage. Hence, the petitions are disposed of accordingly. Notice is discharged.

4. Pursuant to the above order, the petitioner, the applicant and other principals were issued appointment orders appointing them as special case on ad hoc basis till 30.09.2001 specifically stating therein that they shall be treated to have been discharged from service after office hours on 30.09.2001 and by separate order, their break period was treated as continues for ad hoc service. However, before expiry of the extended period, the petitioner, the applicant and other similarly situated Principals again filed Special Civil Application No.9112 of 2001 and allied matters claiming right to be continued in service. These petitions were disposed of vide order dated 04.04.2002 with following observations and directions:

It is not disputed that the posts of Principal or Senior Lecturer in District Education and Training Institutes are required to be filled-in by appointment of persons selected for such appointment by the Gujarat Public Service Commission. Admittedly, neither of the petitioners has been selected for respective appointment by the Gujarat Public Service Commission. Neither of the petitioners, therefore, has a right to be continued in service beyond the period of the appointment. However, it appears that the State Government/Gujarat Public Service Commission has not made selection for the posts in question for a long time. Consequently, the petitioners have been appointed on ad hoc basis time and again. Though the petitioners have been given appointment for short periods in fact the petitioners have been continued in service for a long time. In that view of the matter, it would not be in the interest of Justice or the education that the petitioners are given appointments for short periods and are not given opportunity of being selected by Gujarat Public Service Commission.
In above view of the matter, all these petitions are disposed of with a direction that the petitioners shall be continued on their respective posts till eligible persons duly selected by the Gujarat Public Service Commission are made available. It is clarified that this order shall not preclude the respondent authorities from terminating service of any of the petitioners if his service is found to be unsatisfactory or who does not apply for the selection by the Gujarat Public Service Commission as Page 4 of 23 C/SCA/9024/2014 ORDER and when such opportunity arises. It is made clear that such appointment shall be continued only till the candidates duly selected by the Gujarat Public Service Commission are made available. In case any of the petitioners fails to take competitive test given by the Gujarat Public Service Commission or is not found suitable by the Gujarat Public Service Commission, such petitioner shall be liable to be discharged from service on that ground, even if the vacancies are available or persons duly selected by the Gujarat Public Service Commission may not be available. It is further clarified that continuance in service under this order shall not create equity in favour of any of the petitioners.

5. Based on above order, the respondent no.2 informed all the principals of DIET vide letter dated 11.04.2002 at Annexure-N annexed to the first matter that the Principals and Senior Lecturers appointed on ad hoc basis were to be continued. The letter carried on top of it the remarks 'court subject and important'. The petitioner and the applicant then continued to serve as ad hoc Principal of DIET in their respective centre.

6. However, subsequently, the applicant was compulsorily retired vide order dated 10.09.2009 after placing him under suspension with effect from July 2002. The order of compulsory retirement was challenged before this Court by filing Special Civil Application No.13676 of 2009, which came to be allowed and the order of compulsory retirement was quashed by judgment and order dated 31.01.2014. The applicant was held to be in continuous service till the date he reached to the date of his superannuation and held entitled to all consequential benefits based on the continuous service. The suspension period of the applicant from 03.07.2002 to 30.09.2009 was then regularised for the purpose of service benefits as per the order dated 07.08.2014, copy whereof is placed at Annexure- III with the second matter.

7. In both the matters, the respondents have filed reply affidavits to which the petitioner and the applicant have filed rejoinder affidavits.

Page 5 of 23 C/SCA/9024/2014 ORDER

8. The common relief sought in both the matters is to make the petitioner and the applicant entitled to pension and other retirement benefits for the post of Principal of DIET.

9. As the representation of the petitioner for regularisation of his services on the post of Principal DIET was pending consideration before the Government, the Government was asked to take decision on the question of regularization for the petitioner and the applicant both. The Deputy Secretary, Education Department has vide his order dated 02.05.2017 decided not to accede to the request for regularization of service and not to sanction pension to the petitioner and the applicant by observing that the they were continued as ad hoc by orders of this Court.

10. Learned advocate Mr. Pujara appearing for the petitioner and the applicant submitted that the appointment of the petitioner and the applicant as Principal of DIET was not back-door but they were selected by the selection committee after finding them eligible and qualified for the post of Principal of DIET, however, their appointment was termed as ad-hoc. Mr. Pujara submitted that the petitioner and the applicant have continued to serve for long time as Principal of DIET and having reached to the age of retirement after long qualifying service, they became entitled to get pension and other retirement benefits but such benefits are denied to them on the ground that they were appointed on ad-hoc basis. Mr. Pujara submitted that terming the petitioner and the applicant as ad-hoc, though they satisfied the eligibility criteria for the post of Principal and were duly selected by the selection committee, was nothing but an act contrary to the statutory rules, arbitrary, against the equity and fair play and violative of Articles 14, 16 and 21 of the Constitution. Mr. Pujara submitted that as held by Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others reported in (2006)4 SCC 1, since the petitioner and the applicant have completed more that 10 years Page 6 of 23 C/SCA/9024/2014 ORDER continues service as Principal of DIET, they were required to be treated as regularised on the post of Principal of DIET and given benefits of pension. Mr. Pujara submitted that in any case, even if their services are considered as ad-hoc, such services are qualifying services in terms of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 (to be referred as 'Pension Rules'), as they are not specifically excluded from the services referred as qualifying services, for the purpose of pension. Mr. Pujara thus submitted that since the petitioner and the applicant have put in requisite qualifying services to be entitled to pension benefits, they cannot be denied pension benefits. Mr. Pujara submitted that there is nothing in the Pension Rules prohibiting the grant of pension to the ad-hoc employees and therefore the respondents are not justified in denying pension and retirement benefits to the petitioner and the applicant for the post of Principal of DIET.

11. Learned Assistant Government Pleader Mr. Nisha Thakore appearing for the State and its authorities in both the matters submitted that the World Bank Fund was available for implementation of various educational programs where one of the conditions was to see that no post should remain vacant under the District Education and Training Program, however, since the appointments through GPSC was time consuming, the Government by resolution dated 28.5.1997 decided to appoint Principals and Senior lecturers on ad-hoc basis. Ms. Thakore submitted that the letters of appointment given to the petitioner and the applicant for the post of Principal clearly stipulated that their appointments were on ad-hoc basis for six months or till regularly selected candidate by GPSC was available, whichever was earlier. Ms. Thakore submitted that the petitioner and the applicant had no right to be continued in service after the Government decided to put an end to their ad-hoc services but they filed petitions before this court and as a special case, the Government decided to continue all the principals for a Page 7 of 23 C/SCA/9024/2014 ORDER further period of six months. She submitted that before expiry of the extended period the petitioner, the applicant and the other Principals again approached this Court by filing Special Civil Application No.9112 of 2001 and allied matters claiming right to continue in service. However, such petitions were disposed of with direction to continue them till eligible candidates duly selected by GPSC were made available and it was also made clear by this Court that their continuance in service under the order of this court would not create any equity in their favour. She submitted that pursuant to such orders made by this Court, the petitioner and the applicant were continued in service on ad-hoc basis and given opportunity to get them selected by GPSC, however they failed in the examination taken by GPSC and thus, did not qualify for regular appointment to the post of Principal (DIET). She submitted that in view of the nature of the appointment and the conditions linked with ad-hoc appointment of the petitioner and the applicant and since the petitioner and the applicants were continued on ad-hoc basis under the orders of the Court, they cannot claim regularisation of their services for the post of Principal (DIET). She submitted that since the petitioner and the applicant have not completed more than 10 years of uninterrupted services without support of the Court's order, they are not entitled to claim any benefit of regularization by relying on the decision in the case of Umadevi (supra). Ms. Thakore further submitted that pursuant to the oral order passed by this Court, the Government considered the question as regards their regularisation and the benefits of pension however, on considering the nature of appointment given to them under resolution dated 9.8.1997 and that they continued as ad hoc under the directions issued by this Court, the Government decided vide order dated 2.5.2017 that they are not entitled to such benefits. She submitted that for the purpose of pension benefits, ad hoc services rendered by the petitioner and the applicant as Principal (DIET) under the order of the Court could not be considered as qualifying services. She submitted that when Page 8 of 23 C/SCA/9024/2014 ORDER this Court directed in its order dated 4.4.2002 in Special Civil Application No.9112 of 2001 and allied matters that the continuous services of petitioner, the applicant and the other Principals under its order shall not create any equity in their favour, they are estopped from claiming any benefit of reguralisation and pension. She thus submitted that since the petitioner and the applicant are not entitled to be regularised on the post of Principal (DIET) and their services could not be said to be qualifying services in the context of Rule 25 of the Pension Rules, they are not entitled to any relief as prayed for by them.

12. The Court, having heard learned advocates, finds that initial appointment of the petitioner and the applicant was for six months on ad-hoc basis. Such appointments were pursuant to the decision taken by the State Government as contained in resolution dated 28.5.1997, copy whereof is found placed at Annexure-R-II with the Affidavit-in-Reply dated 24.4.2018 filed on behalf of the respondent No.2. As stated in the resolution, under the World Bank Scheme, since the post in GCERT and District Education and Training Center should not remain vacant and since the appointments to fill in the posts of Principal and Senior Lecturer through GPSC were likely to take time, the Government on due consideration decided to authorize the Director to appoint Principal and Senior Lectures on ad-hoc basis till the duly selected candidates by GPSC for appointment on such posts were available. In the appointment orders issued pursuant to the above decision taken by the Government, there are specific conditions incorporated to the effect that the appointment on ad-hoc basis was purely temporary and the appointee could be discharged without any notice and that appointment shall be for six months or till the candidates selected by GPSC were regularly appointed, whichever was earlier. However, when Government decided to put an end to such ad hoc appointments, and pursuant such decision, when the petitioner, the Page 9 of 23 C/SCA/9024/2014 ORDER applicant and the other Principals were discharged from services, they approached this Court by filing different petitions, wherein on behalf of the Government, since it was stated that ad-hoc appointment of the petitioner, the applicant and the other Principals shall continue for further period of six months from 1.4.2001, as a special case, subject to the same terms and conditions on which they were earlier appointed on ad-hoc basis, the petitions were disposed of vide order dated 30.4.2001 by leaving it open to the petitioner to request the authorities to treat the intervening period as continuous services. Accordingly, they were continued on ad hoc basis and their break period was treated as continued ad hoc service. However, before expiry of the extended period, they again filed different petitions. Such petitions were disposed of vide order dated 04.04.2002 with direction, as reproduced above, that the petitioners therein including the petitioner and the applicant shall be continued on their respective posts till the eligible persons duly selected by GPSC were made available and with further observations that such direction shall not preclude the respondent authorities from terminating their services if their services were found not satisfactory, that if the petitioners failed to take competitive test held by GPSC or were found not suitable by GPSC, they shall be liable to be discharged from the posts even if the vacancies were available or persons duly selected by GPSC might not be available. The Court further clarified that continuance in service under its order shall not create equity in favour of any of the petitioners.

13. The petitioner and the applicant thus continued to serve as Principal of DIET on ad-hoc basis under the order of this Court. However, in case of the applicant, departmental inquiry was initiated in the month of July 2002 and he was suspended and ultimately, by order dated 10.9.2009, he was compulsory retired from service. As stated above, such order was challenged before Page 10 of 23 C/SCA/9024/2014 ORDER this court and this Court quashed and set aside the said order and the Government was directed to give all consequential benefits to the applicant by treating his service as continuous service, as the applicant had already reached to the age of superannuation. However, as stated above, the petitioner and the applicant were continued as ad-hoc Principal of DIET pursuant to the direction issued by this Court and their continuance in service was to be till availability of the suitable candidates selected by GSPC for the posts of Principal. As stated in the Affidavit-in-Reply filed on behalf of the respondent No.2, the petitioner failed in the examination taken by GPSC on 16.4.2008. Therefore, the petitioner could have been discharged from ad hoc service on his failure in the examination held by GPSC. However, by order dated 30.8.2010, copy whereof is placed at Annexure-R-V, it was decided by the Government to continue the ad-hoc services of the petitioner for some more time and that is how, the petitioner continued to serve as ad-hoc Principal of DIET. However, few days before reaching the age of his superannuation, the petitioner filed the first matter.

14. Learned advocate Mr. Pujara submitted that the petitioner was continued as ad-hoc Principal of DIET till he retired by the decision of the State Government and the petitioner having completed more than 10 years of service as ad-hoc Principal of DIET and the applicant was also held to be in continuous service as Principal of DIET till he reached to the age of superannuation, they were entitled to be regularised in terms of the decision of Hon'ble Supreme Court in the case of Umadevi (supra) and consequently became entitled to pension and other retirement benefits.

15. In the case of Umadevi (supra), Hon'ble Supreme Court has held and observed in para 45 to 53 as under:-

45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not Page 11 of 23 C/SCA/9024/2014 ORDER as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain --

not at arm's length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.

46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in Page 12 of 23 C/SCA/9024/2014 ORDER the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or

(ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485). There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.

47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out Page 13 of 23 C/SCA/9024/2014 ORDER any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.

49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make Page 14 of 23 C/SCA/9024/2014 ORDER permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.

51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the Page 15 of 23 C/SCA/9024/2014 ORDER back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.

52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, Page 16 of 23 C/SCA/9024/2014 ORDER who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

16. Learned advocate Mr. Pujara has laid emphasis on the observations made by Hon'ble Supreme Court in Para-53, so as to submit that as held by Hon'ble Supreme Court in the case of Umadevi (supra), since the petitioner and the applicant were duly qualified and appointed on sanctioned post after getting selected by the selection committee and completed more than 10 years of service as Principal of DIET, their services are required to be treated as regularized and are required to be conferred pension benefits. It is not in dispute that the petitioner and the applicant were duly selected by the selection committee. It is also not the stand of the respondents that the petitioner and the applicant were not duly qualified for being appointed as Principal of DIET. However, the question is whether the petitioner and the applicant could be said to have made out a case for benefit of regularisation in terms of the decision of Hon'ble Supreme Court in the case of Umadevi (supra).

17. It appears to the court from the facts in the case of the petitioner and the applicant that their cases do not fall within the exceptions carved out in Para-53 of Umadevi's case. The petitioner and the applicant accepted the appointment as Principal of DIET initially for a period of six months with conditions not to claim any protection to the appointment and to be discharged without any notice and that their ad-hoc appointments were till regularly selected candidates by GPSC available. Therefore they knew the nature of the appointment when they accepted it. Such appointment Page 17 of 23 C/SCA/9024/2014 ORDER for six months on ad-hoc basis was extended for a further period of six months by making it clear to them that there shall not be any further extension of their appointment beyond one year without approval of the GPSC. It was thereafter, the Government took decision on 30.3.2001 to put an end to their appointments, pursuant to which order dated 30.3.2001 was passed by the respondent No.2 discharging them from their services with effect from 3.4.2001. By such decision, the Government made its intention clear that it did not want to continue the ad-hoc appointments of the petitioner, the applicant and other Principals in DIET. However, when they filed petitions, it was stated before this Court that as a special case, Government decided to continue them for further period of six months from 1.4.2001. But, before expiry of such extended period, they again approached this Court by filing different petitions claiming right to continue in service. The Court while disposing of the said petitions vide order dated 4.4.2002, has unequivocally observed that it was not in dispute that the posts of Principal or Senior Lecturer in DIET were required to be filled in by appointment of persons selected for such appointment by GPSC and admittedly, neither of the petitioners had been selected for respective appointment by GPSC and neither of them has a right to be continued in service beyond the period of appointment. However, the Court further observed that it would not be in the interest of education that the petitioners were given appointment for short period and not given opportunity for being selected by GPSC. The Court, therefore, issued direction to continue the petitioner, the applicant and other principals on their respective posts till eligible persons duly selected by GPSC were made available. The Court also made it clear that if any of the petitioners did not take part in the competitive test or not selected by GPSC, they were liable to be discharged. The Court further made it clearly that continuance of service under its order shall not create any equity in favour of any of the petitioners. As stated above, pursuant to such order of the Page 18 of 23 C/SCA/9024/2014 ORDER Court, the petitioner, the applicant and the other Principals were informed by the respondent No.2 vide letter dated 11.4.2002 that they were to be continued on ad-hoc basis as principals and senior lecturers. Therefore, such continuance of services of the petitioner and the applicant was under the order of the Court, where-under the petitioner and the applicant had opportunity to get them selected by GPSC. It is not in dispute and as stated in the affidavit-in-reply, that the petitioner failed in the examination held by GPSC. The applicant, since suffered order of compulsory retirement prior to holding of the examination by GPSC, could not avail opportunity to take examination held by GPSC. As observed by the Court in the order dated 4.4.2002, on failure to get selected by GPSC, the petitioner will not claim right to be continued in service and therefore continuing the petitioner as ad hoc by decision in 2010 will not make the petitioner entitled to be regularised when all throughout, the petitioner and the applicant continued to serve on ad hoc basis under the orders of the Court. When the petitioner and the applicant accepted with open eyes the nature of the appointment and also the orders passed by this Court under which they remained bound not to claim any equity for continuing in service under the orders of the Court, they would not be entitled to claim regularisation as their cases would not fall within the exception carved out by Hon'ble Supreme Court in Para-53 in Umadevi's case. Therefore, the prayer made by the petitioner and the applicant to treat their service as regularised cannot be accepted.

18. However, learned advocate Mr. Pujara submitted that even ad-hoc employees, who had put in qualifying services in terms of Rule 25 of the Pension Rules, are entitled to get pension. Though Rule 25 does not expressly excludes ad-hoc service from being considered as qualifying services for the purpose of pension, however the Court finds that those, who have put in requisite length Page 19 of 23 C/SCA/9024/2014 ORDER of services for pension under the orders of the Court, if could not get benefits of regularisation, their services could not be considered as qualifying services for the purpose of pension benefits.

19. In the case of University of Rajasthan and Another Vs. Prem Lata Agarwal reported in (2013)3 SCC 705, Hon'ble Supreme Court has held and observed in para 25 to 27 and 38 and 39 as under:-

25. The provisions of the Act, when read in a conjoint manner, make it crystal clear that the legislature had imposed restrictions on the appointment, provided for the constitution of Selection Committee and also laid down the procedure of the said committees. The intention of the legislature is, as it seems to us, to have teachers appointed on the basis of merit, regard being had to transparency, fairness, impartiality and total objectivity. Under sub-section (2), it has been clearly postulated that any appointment made barring the arrangement under sub-section (3) of Section 3 would be null and void. The language is clear and categorical. The exception that had been carved out under Section 3(3) is for an extremely limited purpose. It permits stop-gap arrangements and only covers ad hoc or part-time teachers with a small duration. It is intended to serve the purpose of meeting the situation where an emergency occurs. It was never intended to clothe any authority with the power to make any appointment beyond what is prescribed therein.

The scheme of the aforesaid provisions go a long way to show that the legislature, in fact, had taken immense care to see that no one gets a back door entry and the selections are made in a seemly manner. A proper schematic analysis of the provisions enumerated hereinabove do not envisage any kind of ad hoc appointment or part-time appointment to remain in continuance.

26. As is demonstrable from the factual depiction in the present batch of cases, some of the respondents continued with certain breaks and also due to intervention of the court. That apart, this Court had not acceded to their prayer of regularization. The only direction that was issued in Special Leave Petition (C) No. 3238 of 1997 and other connected matters, was that they would continue in service till the regular selections were made.

27. It is noteworthy that a distinction has to be made and we are obliged to do so because of the language employed in the provisions between a regular teacher and an ad hoc teacher or a part-time teacher who continues to work in the post sometimes due to fortuitous circumstances and sometimes due to the interdiction by the court. Their initial appointment could be regarded as legal for the limited purposes of Section Page 20 of 23 C/SCA/9024/2014 ORDER 3(3) of the Act. That would only protect the period fixed therein. Thereafter, they could not have been allowed to continue, as it was only a stop gap arrangement and was bound to be so under the statutory scheme. Their continuance thereafter by operation of law has to be regarded as null and void regard being had to the language employed in Section 3(2) of the Act.

38. We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules or regulations.

39. In view of the aforesaid, the irresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi, (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services in 1998.

20. In the case of State of Haryana and Others. Vs. Shakuntala Devi reported in (2008)15 SCC 380, Hon'ble Supreme Court has held and observed in para 27 to 31 and 40 to 42 as under:-

27. We would begin our discussions with the status of an employee. A Government employee enjoying a status indisputably must be recruited in accordance with Rules. The offers of appointment made in favour of the employees in no uncertain terms show that they were appointed on an ad hoc Page 21 of 23 C/SCA/9024/2014 ORDER basis. The appointment was not regular, although in relation to the case of Balwant Singh, the names were said to have been called for from the Employment Exchange. Nothing has been placed on record to show as to what was the cadre strength in the posts to which they were appointed.
28. No material has been brought on records to show that the equality clause contained in Articles 14 and 16 had been complied with. Any recruitment made in violation of the constitutional scheme, as adumbrated therein as also the Recruitment Rules framed by the State would render the same illegal and invalid.
29. The very fact that a regularization scheme was framed by the State is a clear pointer to show that the concerned employees were not regularly employed. They had sought for regularization of their service and at least in one case, as noticed hereinbefore, for one reason or the other, the said request was turned down. The validity thereof was not questioned. It attained finality.
30. In the case of Rama Devi, a contention was raised in the writ petition that the offer of appointment in law was not for a period of six months but for an indefinite period. Such a contention cannot be upheld. If the initial appointment was for a fixed period and the appointment could be terminated without any notice and without assigning any reason, such appointment cannot be said to be an appointment on a permanent post or a temporary sanctioned post. Unless and until the post itself is a permanent or a temporary one, the same would not answer the description of a substantive and permanent employment. In this case, it had been shown that the services of Karan Singh was being renewed for a period of six months on the expiry of the original or extended tenure.
31. Clause 3.17 of the Rules in no uncertain term explains as to what is meant by substantive and permanent employment.

The contention of the counsel that it applies only to a person who has retired is not correct because holding of a substantive permanent post on the date of retirement is followed by the words his temporary or officiating service under the State Government. Confirmation in service, therefore, whether before retirement or before death must be held to be sine qua non for becoming eligible for grant of pension. Only when an employee renders service in a pensionable service, he would be entitled to pension.

40. It is one thing to say that a person was appointed on a temporary post on a regular basis but it is another thing to say that an appointment was ad hoc in nature on a temporary basis. Whereas in the former case, the appointment must be carried out in accordance with law, in the later, it may not be.

Page 22 of 23 C/SCA/9024/2014 ORDER

41. From a perusal of the offers of appointment, as noticed hereinbefore, it is evident that the appointments of the concerned employees were made for a period of six months or till a regular appointment was made. The very fact that the posts were to be filled up on regular basis by the competent authority clearly goes to show that the nature of appointment of the said persons was ad hoc one.

42. It may be that on the expiry of six months, the services were allowed to continue but the same would not, in absence of any statutory interdict, mean that the ad hoc employee ceased to be so and acquired the status of a permanent or temporary employee.

21. In light of the above and for the reasons stated above, the Court finds that the petitioner and the applicant do not deserve grant of any of the reliefs prayed by them. They are neither entitled to be regularised as Principal of DIET nor are entitled to pension and other retirement benefits as Principal of DIET as their services cannot be considered as qualifying services for the purpose of pension. The petition and the application both are therefore required to be rejected. They are accordingly rejected. Notice discharged. Interim relief, if any, stands vacated.

(C.L. SONI, J) OMKAR Page 23 of 23