S B Dalicha & 68 vs State Of Gujarat & on 5 May, 2017

[Cites 29, Cited by 0]

Gujarat High Court

S B Dalicha & 68 vs State Of Gujarat & on 5 May, 2017

Bench: Sonia Gokani

               C/SCA/4263/2012                                              CAV JUDGMENT




                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      SPECIAL CIVIL APPLICATION NO. 4263 of 2012
                                            With
                      SPECIAL CIVIL APPLICATION NO. 6192 of 2012
                                             TO
                      SPECIAL CIVIL APPLICATION NO. 6259 of 2012
                                            With
                      SPECIAL CIVIL APPLICATION NO. 10563 of 2015
                                            With
                      SPECIAL CIVIL APPLICATION NO. 12607 of 2015
                                            With
                      SPECIAL CIVIL APPLICATION NO. 13354 of 2015


         FOR APPROVAL AND SIGNATURE:



         HONOURABLE MS JUSTICE SONIA GOKANI

         ==========================================================

         1   Whether Reporters of Local Papers may be allowed
             to see the judgment ?

         2   To be referred to the Reporter or not ?

         3   Whether their Lordships wish to see the fair copy of
             the judgment ?

         4   Whether this case involves a substantial question of
             law as to the interpretation of the Constitution of
             India or any order made thereunder ?

         ==========================================================
                              S B DALICHA & 68....Petitioner(s)
                                         Versus
                           STATE OF GUJARAT & 1....Respondent(s)
         ==========================================================
         Appearance:
         MR GIRISH PATEL, SR. ADV. with MR VAIBHAV VYAS and MR KAMAL M
         SOJITRA,ADVOCATES for the Petitioner(s) No. 2 - 69


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HC-NIC                                 Page 1 of 104     Created On Sat Jul 01 01:09:16 IST 2017
                C/SCA/4263/2012                                           CAV JUDGMENT



         MR NEERAJ SONI, ADVOCATE for the Petitioner(s) No. 1
         MS SANGEETA VISHAN, ASST. GOVERNMENT PLEADER for the
         Respondent(s) No. 1
         RULE NOT RECD BACK for the Respondent(s) No. 1
         RULE SERVED for the Respondent(s) No. 2
         ==========================================================

          CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

                                  Date : 05/05/2017


                                  CAV JUDGMENT

Factual Details:

1. This group of petitions are preferred under Articles 226 of the Constitution of India and in the matters of Articles 14 and 16 of the Constitution of India seeking continuity of service and protection of service conditions in the following backgrounds: 1.1 It is the case of the petitioners that they were appointed on the post of Lecturers by the authorities of the Government in Government Colleges after they underwent the process of selection pursuant to the advertisement and sponsoring names from Employment Exchange. This process was conducted by Staff Selection Committee headed by Joint Director of Education, Page 2 of 104 HC-NIC Page 2 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT which was constituted by the Government in the Education Department. Approval of such appointment was given by the Commissioner of Higher Education and it was stated that such an appointment was on ad hoc basis till regular selection was made of candidates from Gujarat Public Service Commission (" the GPSC" for short). Many such persons also came to be appointed after the petitioners' appointment. It is the say of the petitioners that from the year 1988 to 1998, for nearly one decade, no recruitment process was conducted by the respondent authorities for appointments on the post of Lecturers and, therefore, the petitioners continued to render their services on ad hoc basis in the Government colleges. The GPSC advertised the posts and selected the candidates following the procedure established under the law. Those candidates were aggrieved by the fact that no room was made available due to continuation of ad hoc appointees. Both the sides approached this Court. The entire controversy, thus, centered around the issue where ad hoc Page 3 of 104 HC-NIC Page 3 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Lecturers, who were locally appointed until regular Public Service Commission candidates were available and were continued as ad hoc without consultation with the GPSC and dehors the Recruitment Rules should be deemed to have been or should be regularised on the post by virtue of their having been continued for long years, notwithstanding the availability of Public Service Commission selectees. The learned Single Judge held that though the ad hoc Lecturers cannot be directed to be continued contrary to the Recruitment Rules, nor can they be ordered to be regularised by any mode not warranted by the statutory rules governing the appointment to the cadre of Lecturers. This was challenged before the Division Bench which upheld the decision of the learned Single Judge. This decision is reported in 2003(2) GLR 1343 in the case of K.D.Vohra vs. Kamlesh Gobarbhai Patel and others. However, considering the long years, they had served, the Appellate Court directed the Government that these ad hoc Lecturers be treated as a separate class in view of their ad Page 4 of 104 HC-NIC Page 4 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT hoc continuance for nearly a decade due to "reckless indifference in discharge of duties on the part of the executive".

2. It is the say of the petitioners that their continuation was not on account of any fault of theirs. The State Government took a decision to absorb the petitioners in Government colleges on the post, which had remained vacant even after giving appointments to the candidates selected by the GPSC. For giving appointment to the GPSC selected candidates, junior most ad hoc Lecturers were relieved from ad hoc services on the principle of last come first go. In the year 2004, the Government decided to absorb them in GrantinAid Colleges. The petitioners were not the junior most candidates. Therefore, they were not required to be shunted out of the Government colleges and, thus, they continued to serve in Government colleges and persons junior to the petitioners were allowed to work in GrantinAid colleges. Approximately, 88 ad hoc Lecturers, who were juniors to the petitioners, were absorbed in Page 5 of 104 HC-NIC Page 5 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT GrantinAid colleges. It is the say of the petitioners that, later on, in the years 2007 and 2009 in the Government colleges, they were absorbed in GrantinAid colleges. Accordingly, in the year 2009, first 46 of them had no break in service and in case of 47 to 69 petitioners, artificial break has been given to the petitioners for their absorption in GrantinAid Colleges.

3. It is the say of the petitioners that they have been deprived of various benefits like continuity of service, pay protection, pension, provident fund, leave etc. in spite of the fact that even the Division Bench of this Court did not order anything which would adversely affect the service conditions of the petitioners. It is further their say that those who were juniors to the petitioners have been granted all those benefits and the petitioners have been deprived of the same. Those who had been absorbed in various GrantinAid colleges in the year 2004, also have been availed such pension and GPF. Thereafter, in Page 6 of 104 HC-NIC Page 6 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT the year 2007 also, second lot of ad hoc Lecturers were directly absorbed in the Grantin Aid colleges, even in their case, GPF account was continued and at that time also petitioners were continued by the authority to work in their colleges. Thus, in the year 2009 when they had been absorbed in the GrantinAid colleges, they were deprived of these benefits. Their GPF account was closed and it was decided that they be governed by new Pension Scheme. It is their grievance that their GPF account was opened and operated for a period of more than 15 years till the year 2009. Several representations in this regard had been made, but the same were not accepted.

4. The petitioners, therefore, approached this Court by preferring Special Civil Application No.9921 of 2011 and cognate matters which had been disposed of by this Court (Coram:H.K.Rathod, J, as he then was) wherein, the Court directed the respondent State to examine and consider the request positively, because, those who were Page 7 of 104 HC-NIC Page 7 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT transferred or accommodated in GrantinAid colleges, were junior to the petitioners.

Whatever benefits and privileges are granted in favour of those similarly situated ad hoc Lecturers were to be made available to the junior Lecturers and should be considered to be given to the present petitioners.

5. A detailed representation was made to the respondent authority pursuant to the direction on 11.10. 2011. The respondent authority passed an order on 12. 12.2011 and rejected the request. Notice was issued by learned advocate of the petitioners alleging contempt of Court proceedings, however, the respondent authority passed an amended order dated 2.8.2011. While so doing, it did not take into consideration the order of the Court and benefits of Government Resolution also have not been extended to the petitioners. Therefore, a contempt petition being Miscellaneous Civil Application No.430 of 2012 came to be filed which was disposed of by this Court vide order dated 16.2.2012(Coram: Akil Page 8 of 104 HC-NIC Page 8 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Kureshi and C.L.Soni, J.J.) and the same is reproduced as hereunder: "

1.The applicant is original petitioner. He had moved abovementioned Special Civil Application seeking various post retiral benefits. Case of the applicant came to be decided by Learned Single Judge of this Court by order dated 2.8.2011 along with similar petitions. Following observations and directions were issued :

"4 As and when such representation made by petitioners is received by respondent NO.1, Respondent No.1 is directed to consider earlier order dated 12th February, 2004 AnnexureC page 63 which has been passed in favour of similarly situated ad.hoc lecturers who were engaged subsequent to engagement of present petitioners and accordingly they were considered to be junior to present petitioners and then, it is also directed to respondent No.1 to consider Resolution of the Government of Gujarat in its Education Department dated 29.12.1993 passed in consultation with Finance Department page 96 Annexure G whereby benefits have been extended in favour of lecturers. While considering representation of petitioners, it is also directed to respondent NO.1 to consider Resolution passed by State Government in its Health and Family Welfare Department dated 4/10.5.1999 page 97 Annexure H. Respondent No.1 is directed to examine and consider these aspects positively, keeping in mind the fact that earlier ad.hoc lecturers, those who were transferred or accommodated in Non Government Grant in Aid Colleges in the year 2004, were junior to present petitioners. Whatever benefits and privileges are granted in favour of those similarly situated junior ad.hoc Page 9 of 104 HC-NIC Page 9 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT lecturers, let all such benefits be extended in favour of present petitioners by respondents.

5 While considering representation that may be made by petitioners, Respondents are directed to keep in mind aforesaid orders dated 12.2.2004, Resolution dated 29.12.1993 and order dated 4/10.5.1999 and observations made above, and then to decide it and pass appropriate reasoned order within three months from the date of receipt of representation from petitioners and then to communicate decision to petitioners immediately. Let petitioners supply all copies of orders and Resolution/s which have been referred to by this Court in present order to respondent NO.1 along with representation that may be made by petitioners for enabling respondent no.1 to effectively consider the representation made by petitioners.

6 With these observations and directions, these petitions are disposed of by this Court without expressing any opinion on merits. However, in case if ultimate decision is adverse to petitioners, then, it is open for petitioners to challenge such decision before appropriate forum in accordance with law."

2.After some delay, the authorities disposed of the representation of the present applicant by order dated 12.12.2011 as amended by order dated 2.2.2012. The Deputy Secretary of Education department of State of Gujarat by the said order held that the applicant and other similarly situated teachers were not entitled to either pensionary benefits or benefits of provident fund, but however, held covered under the new CPF Scheme.

3.Counsel for the applicant vehemently contended that the order is passed by the authorities in disregard to the observations and directions contained in Page 10 of 104 HC-NIC Page 10 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT order of the Learned Single Judge dated 2.8.2011. In particular, our attention was drawn to the directions contained in para.4 of the order, wherein learned Judge had provide that whatever benefits and privileges were granted in favour of those similarly situated junior adhoc lecturers, let all such benefits be extended in case of petitioners before the Court also. Counsel submitted that such positive directions have been ignored. Hence there is a case of contempt.

4.We are however, of the opinion that authority having applied its mind and having examined the materials on record passed a speaking order, which if aggrieves the applicant, may give rise to a fresh cause for filing appropriate proceedings, nevertheless, does not, in facts of the case amount to committing contempt.

5.Whether the present applicant has any right to seek post retiral benefits such as pension, gratuity, etc independently, or on the basis of similarly situated ad hoc teachers having been extended such benefit, is a question which can be judged in independent proceedings, if so instituted, by the applicant. Whether by virtue of order of the Learned Single Judge dated 2.8.2011, such right or some of them have got crystalized in favour of the applicant or not also can be gone into in such proceedings. In any case, we do not find that authorities willfully disobeyed or disregarded any of the directions of this Court.

6.Under the circumstances, leaving it open to the applicant to seek remedy in accordance with law against the order dated 12.12.2011 as amended by further order dated 2.2.2012, passed by Deputy Secretary, this contempt proceedings are closed.

Disposed of accordingly."

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6. While not entertaining the contempt petition, the Court has permitted the petitioners to seek remedy, in accordance with law, by way of independent proceedings pursuant to such directions taking the same as basis similarly situated ad hoc Lecturers have been extended such benefit. The petition is filed by the present petitioners seeking indulgence of this Court urging inter alia that the action of the respondent authority, in not regarding services of the petitioners as continuous on the absorption in GrantinAid college and denying them the benefits as given to their juniors, cannot be sustained. They have also urged for pay protection. It is further the case of the petitioners that the petitioners have voluntarily joined services in GrantinAid colleges and other Lecturers, who did not voluntarily join GrantinAid colleges are not given appointment at all and, therefore, Government resolution dated 29.12.1993 should be made applicable in case of the petitioners. Moreover, the authorities themselves have decided to absorb the Page 12 of 104 HC-NIC Page 12 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT petitioners and the petitioners would be in a better position, as compared to the persons, who voluntarily joined the services of the Grantin Aid colleges and, therefore, also indulgence is sought before this Court. Under the Bombay General Provident Fund Rules, the GPF account of the petitioners were opened on account of the completion of one year of service and, therefore, upon their absorption in the GrantinAid colleges, the authorities were required to continue the said GPF account. They also are required to be granted benefit of continuity of service. The persons, who were much junior to the petitioners, were granted the benefit of continuity of service, whereas, the petitioners, who were appointed as ad hoc Lecturers and who subsequently cleared the selection procedure conducted by the GPSC, have been regularised in the service and their services have been treated to be continuous for the purpose of leave, pay and pension.

7. 1 Under the circumstances, it is further averred Page 13 of 104 HC-NIC Page 13 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT by the petitioners that the University Grants Commission regulation on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010, provides that for direct recruitment and promotion under the Career Advancement Scheme, ad hoc services of more than one year duration can be counted, provided that the period of service was of more than one year duration and the candidate was appointed on the recommendation of duly constituted Selection Committee and candidate was selected to the permanent post in continuation to the ad hoc or temporary service, without any break. Under the circumstance, indulgence of the Court is also sought on the ground that when the ad hoc services are even taken into consideration by the UGC for the purpose of Career Advancement, then in the case of absorption of the petitioners in GrantinAid colleges, the said services are required to be counted by the authorities, more particularly, when the petitioners are possessing the requisite Page 14 of 104 HC-NIC Page 14 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT educational qualifications and were appointed by the duly constituted Selection Committee and the said appointments were duly approved by the Commissioner of Higher Education and there is no actual break in service of the petitioners. Prayers: 7.2 Following are the reliefs sought for by the petitioners in the present petition: "8. The petitioners respectfully prays that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to: (A) quash and set aside orders dated 12.12.2011 and 2.2.2012, AnnexureH and AnnexureJ respectively to this petition, and (B) further be pleased to direct the respondent authorities to treat the service of the petitioners as continuous, from his initial date of appointment, for all purposes, including for the purpose of pay, pension and leave, and (C) further be pleased to direct the respondent authorities to protect the service conditions of the petitioners, such as pay, pension, Leave,Provident Fund etc., at least to the extent it is so done, in case of persons junior to the petitioners, and (D) pending admission and final disposal of this petition the Honourable Court may be pleased to restrain the respondent authorities from taking any coercive steps for opening new Provident Fund Account of the petitioners, and (E) pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to continue to operate the GPF Account of the petitioners, and (F) award the cost of this petition, and Page 15 of 104 HC-NIC Page 15 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT (G) grant any other relief or pass any other order which the Honourable Court may consider as just and proper inf the facts and circumstances of the case."

Version of the Government:

8. Affidavitinreply is filed on behalf of respondents No.1 and No.2 Joint Director, Education Commissioner, Higher Education, Gandhingar in wake of the notice issued by this Court. It has been contended inter alia that the petitions deserve to be dismissed in limine.

8.1 It is emphasized in this affidavitinreply that the appointment of the petitioners, who were working as ad hoc Lecturers in Government colleges have been made afresh. By way of goodwill gesture, the appointments had been made on considerate ground. Division Bench in the case of K.D. Vohra (supra) had not chosen to incorporate any condition and directions so far as appointment of present petitioners in Grant inAid colleges is concerned. The allocation of colleges for the purpose of appointment was on the basis of seniority in the principle of last Page 16 of 104 HC-NIC Page 16 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT come first go in phasewise manner. The petitioners and other ad hoc Lecturers, who failed to get selected in the process initiated by the GPSC, could not be regularised at Government colleges and, therefore, they were accommodated in GrantinAid colleges merely on sympathetic ground by giving them fresh appointment instead of rendering them jobless.

8.2 In the contempt petition filed by the petitioners, the Court had observed that whether the claim of pension scheme for the petitioners was tangible or not, is a matter of separate independent judicial proceeding. It is further contended that only in case of regular full time appointment, protection of pay is made available and not where service is ad hoc. During ad hoc service tenure, the Lecturers were free from any sort of terms and conditions. At the time of reappointment, they were given the right either to accept or to reject the new appointment. The new appointments, according to the State, had been after commencement of Revised Pension Scheme, which did not require opening of GPF Page 17 of 104 HC-NIC Page 17 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT account. Such accounts were linked to the ad hoc services and, therefore, the respondents needed to close down the GPF accounts, which were opened during ad hoc services on the basis of the proposal made locally by the Government colleges and that, at the most, can be said to be an administrative irregularity, which did not enjoy approval of Office of Commissioner of Higher Education. It is further contended that benefit of ad hoc services to staff of Medical cadre cannot be extended to the petitioners. The class of ad hoc Lecturers, who were selected by the GPSC for regular appointment, were extended the benefit of leave and pension on account of the previous ad hoc services considering their continuity in employment of State Government, which can be joined under the service rules.

However, the same benefits cannot be given to ad hoc Lecturers, who were terminated and were freshly appointed at different colleges by way of goodwill gesture. The new appointment was a fresh appointment, where the petitioners were free to join or not to join. It was with transparency Page 18 of 104 HC-NIC Page 18 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT that the entire process was conducted. The pension scheme had stopped at the time of new appointments of the petitioners. It is not a discrepancy not to allow them the continuation of GPF fund. It is further contended that at the time of recommendation made by the GPSC, groups of ad hoc Lecturers challenged the selection process under Special Civil Application No. 2395 of 2001.

8.3 There are three affidavits filed by the petitioners, two of them are additional affidavits and one is termed as affidavitinrejoinder. In the affidavit dated 18.2.2015, it is stated that the State Government in Education Department passed a resolution on 22.12.2014, whereby the services rendered by the ad hoc Lecturers in Government colleges on ad hoc basis prior to their selection through the GPSC to be considered for granting them Senior Grade and Selection Grade, if otherwise prescribed in the Government Resolution dated 17.6.1999.

8.4 It is further their say that earlier by Government Resolution dated 3.8.2011 those Page 19 of 104 HC-NIC Page 19 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Lecturers, who were on ad hoc basis, prior to the selection of the GPSC, their services also had been regularized for the purpose of pay, pension and leave.

8.5 By Government Resolution dated 17.6.1999, the Government had formulated the policy of granting Senior Scale/ Selection Grade to the Lecturers. Therefore, upon reading the Government Resolutions of 17.6.1999 with 22.12.2014, the petitioners would be entitled to the benefit of Senior Grade and Selection Grade both.

Affidavitinrejoinder:

9. AffidavitinRejoinder is filed for and on behalf of the petitioners on 5.3.2013. It is urged that the respondent authority is not right in saying that the absorption of the petitioners is due to goodwill gesture on the part of the respondentState. It is pursuant to the direction issued by the Court due to reckless indifference in discharge of the duties on the part of the Executive, which is clearly frowned upon by the Court. Pursuant to such directions, the State Government decided to absorb the petitioners in Government colleges at the posts, which remained Page 20 of 104 HC-NIC Page 20 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT vacant after giving them opportunity to be selected through the GPSC and the junior most candidates were shunted out. It is further their say that as per the Government Resolutions dated 19.12.1981 and 3.7.1998, the persons, who are initially appointed on ad hoc basis but, subsequently get appointed on regular basis, in their case, the service which they have rendered on ad hoc basis, should be treated as continuous service for the purpose of pay protection and pension. It is further their say that if a Government servant, under the Bombay Civil Services Rules, 1959, working in an office or department is selected either in the same office or any other office to a service/cadre/ post under the Government through the GPSC, centralized recruitment scheme or any other method approved by the Government and if the service rendered prior to and after such selection is continuous without any physical break, the previous service shall be counted for fixation of pay and leave.

9.1 It is further their say that even after absorbing the GPSC selected candidates, more than 300 posts of Lecturers in the Government colleges were vacant. It is a matter of record, and Page 21 of 104 HC-NIC Page 21 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT therefore, the intention of the Government was to protect the service conditions of the petitioners, who are the senior most Lecturers. The appointment of the petitioners was made between the years 1987 and 1997 and at that stage, the Pension Scheme was enforced in the GPF Account. The appointments also were made as per the Rules, which continued for more than 15 to 20 years and they were effective till the absorption of the petitioners in GrantinAid colleges. It was only after the act of the respondent authority, in deciding the GPF Account to be closed, that the petitioners needed to rush to this Court. They could have been governed by the old Pension Scheme and the benefit already granted to the juniors also ought to have been made available.

9.2 It is further their say that the lecturers, who were absorbed in the year 2007, as per the availability of the post in respective subjects, they have been given the benefit of old Pension Scheme and the GPF account opened by the office Page 22 of 104 HC-NIC Page 22 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT of Commissioner of Higher Education has been continued. They too were absorbed subsequent to the newly defined Contributory Pension Scheme, 2005 and, therefore, this is nothing but an act of discrimination. Therefore, the scenario that emerges is that those absorbed in the year 2004 are being given the benefit of old Pension Scheme, whereas, those senior Lecturers, who were absorbed in the year 2009, have been deprived of such benefits.

9.3 Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002, provides for qualifying service of the Government employees, which would entitle them the benefit of Pension Scheme. The said rule provides that all services including the service of probation period rendered on a regular establishment, in any capacity whether temporary or permanent, interrupted or continuous, shall be considered as qualifying service for grant of pension. The said rule does not provide that the services rendered on ad hoc basis shall not be considered as pensionable Page 23 of 104 HC-NIC Page 23 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT service. The respondent authority has completely disregarded this rule as well as observations of the Division Bench of this Court in Letters Patent Appeal No.6085 of 2002. So far no responsibility has been fixed for default on the part of Authorities.

9.4 It is also their say that in case of Medical Officer, Gujarat Public Health Services ClassII, services rendered by them on ad hoc basis was treated as continuous by the Government by virtue of Government Resolution dated 17.1.2008. Similarly, in case of Assistant Engineers (Civil), they were appointed on ad hoc basis upon their absorption/regularisation. Their services also have been considered for the purpose of pension and retirement benefit. Under the circumstances, the petitioners, being similarly situated employees, also be made available the very benefit of regularisation of their services as a special case.

9.5 In yet another additional affidavit, made on 7.5.2015, it is their say for and on behalf of Page 24 of 104 HC-NIC Page 24 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT the petitioners that under the Right to Information Act, the petitioners received information that the State Government has taken a decision whereby, totally 222 ad hoc Lecturers were required to be absorbed in the GrantinAid colleges. The issue regarding pay protection of the petitioners as per the noting also was to be taken into consideration and the past services of theirs also were under consideration and the evidence is to the effect that service of the petitioners are continuous and they be given the pay in payscale as per the rules.

9.6 It is further their say that as contained in the Government Resolutions dated 15.1.1982 and 29.12.1993, the Lecturers working in the Government colleges when joined nonGovernment GrantinAid colleges, they were availed pay protection. The petitioners getting the pay in the regular payscale, if are put at a minimum payscale, they shall have to suffer financial hardship and the same would be in violation of the principles contained in the Constitution. It Page 25 of 104 HC-NIC Page 25 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT is further the say of the petitioners that the State Government had issued Government Resolution dated 23.6.2009, wherein the policy decision is taken to absorb the ad hoc Lecturers working in the Government colleges into GrantinAid colleges. Taking the said policy decision, it was decided to place the petitioners in the payscale of Rs.8000/Rs.13,500/ and they were placed in the minimum payscale of Rs.8000/. Pursuant to the Government Resolution dated 3.8.2011, the services of the ad hoc Lecturers working in the Government Colleges and who were subsequently appointed through the GPSC, came to be regularised for the purpose of leave, pay and pension. The office of Commissioner of Higher Education issued office order dated 21.3.2012, where the services of the said ad hoc Lecturers came to be regularised for the purpose on the condition mentioned in the said office order. Additional AffidavitinReply Page 26 of 104 HC-NIC Page 26 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT

10. Additional affidavit on behalf of respondents No.1 and 2 also has been filed on 28.8.2015, wherein entire details have been placed on the record indicating the chronology of events to conclusively contend that the petitioners were not appointed by way of regular selection, as per the Recruitment Rules, but, they were recruited dehors the Recruitment Rules. Their services as ad hoc Lecturers were continued on account of interim order of the High Court. Therefore, as per the decision of State of Karnataka vs. Uma Devi, 2006(4) SCC 1, no right accrues in their favour for regularisation and they also would not have other rights protecting their pay or availing the pension benefits, which are available to other employees. They also should not be permitted to challenge the Government Resolutions dated 8.12.2009 and 12.12.2011 after having enjoyed the benefit of being absorbed.

Oral Submissions:

11. This Court has heard extensively learned Page 27 of 104 HC-NIC Page 27 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT advocates for both the sides, who argued at length. The petitioners were represented by learned Senior Advocate Mr. Girish Patel with Mr. Kanal Sojitra and Mr. Niraj Soni, whereas Ms.Sangeeta Vishan, learned Assistant Government Pleader represents the State. Both the sides have also tendered their written submissions to substantiate their view points and also have further substantiated their oral versions with various documents and authorities on the point.

No elaboration of the submissions made would be required and they will be dealt with in the body of the judgment.

Chronology of Events:

12. Undisputed facts are that the petitioners served as Lecturers in the Government colleges.

The selection process was not initiated by the GPSC, however, at local level, they were called from Employment Exchange or otherwise. By issuing advertisement, they had been selected on ad hoc basis. This was arranged till regularly selected GPSC candidates are available on the post in Page 28 of 104 HC-NIC Page 28 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Government colleges.

13. Thus, appointment was made between 1987 and 1997. When the GPSC selected candidates were available, the question arose with regard to those ad hoc employees.

14. The matter travelled to the Division Bench of this Court. Special Civil Application No. 2395 of 2001 was the lead matter and there were other cognate petitions, which were all jointly regarded and the Court by an interim order on 4.5.2001 directed to make representation by the Lecturers or by their association as early as possible and in any case by 10.6.2001. Petitions were filed by rival groups. Special Civil Application No. 2395 of 2001 and allied matters were preferred by the group of Lecturers, who were selected by the GPSC and, who were awaiting their appointment. They prayed for issuance of writ of mandamus to direct the Government to appoint them on the post of Lecturers, who also contended that persons, who were working as ad hoc Lecturers, cannot be continued when the GPSC Page 29 of 104 HC-NIC Page 29 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT selectees were available. The grievance of the GPSC selectees was also to the effect that despite their having been selected by the GPSC and the constitutional mandates that the regular appointment shall be in consultation with the GPSC, the selected candidates were made to wait for no fault of theirs, whereas, ad hoc Lecturers in Special Civil Application No. 2992 of 2001 claimed that they earlier were serving as Lecturers in colleges. They lost their lien and they have been working for nearly 6 to 9 years as Lecturers. They should be regularised as Lecturers. They also relied on the decision of the Division Bench judgment dated 29.9.1999. There was a third petition being Special Civil Application No.2988 of 2001 filed by ad hoc Lecturers and they were also selected by the GPSC. What weighed with the Court was the disposal of appeal by the Division Bench on 29.9.1999 and the ad hoc Lecturers were directed to make representation within one week and the authority was to consider it within two weeks thereafter on merit. As the State had not taken Page 30 of 104 HC-NIC Page 30 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT any decision, it was directed to decide the representation of the ad hoc Lecturers and/or their association, as early as possible by 10.6.2001.

15. Appeal came to be preferred by the persons, who were appointed as ad hoc Lecturers pending the availability of regular recruits through the GPSC to the post of Lecturers against common judgment and order dated 15.7.2002 passed by the learned Single Judge.

16. Special Civil Application No. 2395 of 2001 and cognate matters were filed by direct selectees through the GPSC, who were seeking appointment to the post of Lecturers, as per the recommendation of the GPSC which was allowed by the learned Single Judge vide order dated 15.7.2002 and on that very date, it rejected Special Civil Application No. 4396 of 2001, which was filed by the candidates, who were required to be replaced by the GPSC selectees.

17. Both the sides challenged the said judgment of learned Single Judge, as there were in all 465 Page 31 of 104 HC-NIC Page 31 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT vacancies in all Government colleges. Many of them were filled in by ad hoc employees. As the appointment on these posts of duly selected candidates of the GPSC was delayed beyond the period of six months, they had challenged the continuation of 300 Lecturers. Some of the candidates, who were selected, were also the candidates, who were working on ad hoc basis. Some candidates were from Government schools from ClassIII post in which their lien was retained, while rest were appointed directly on ad hoc basis. They were aware that they were to hold the post till the availability of the GPSC candidates, out of the total number of direct selectees, 123 direct selectees were not given appointment in view of the interim order, which was operating in favour of the ad hoc appointees.

18. The ad hoc appointees had raised many grievances that their appointment had been made after being selected by the local committee constituted as per the Circular dated 21.12.1992, which comprised of Joint Director, Deputy Page 32 of 104 HC-NIC Page 32 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Director as well as Principal of respective colleges and one expert from amongst penal Lecturers in accordance with the requirement of the Recruitment Rules.

19. As they had continued for a number of years, according to them, they acquired right to continue on these posts of Lecturers. Their appointment should be considered to have been duly recognised and they would have a right to hold the said post over the selectees. Their merit had been already decided in the interview, after they were selected by the Interview Committee constituted under the Circular dated 21.12.1992. It was their say that their long experience in various colleges without any adverse material should not allow the action of discontinuation for accommodating fresh candidates. The similarly situated temporary employees, as addressed, were regularised in Ayurvedic colleges and also in Narmada Water Resources Department.

20. Letters Patent Appeal Bench after extensive Page 33 of 104 HC-NIC Page 33 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT consideration of rival submissions of the parties and also factual matrix and the law on the subject at length, dismissed all the Letters Patent Appeals by giving certain directions. The Court found a sad picture emerging from these details. According to the Bench, it was callousness on the part of the Executive as well as the GPSC, in discharge of their important constitutional functions in the matter of making appointments to the cadre of Lecturers in the Government Educational Services, ClassII, (Collegiate Branch). The appointments on ad hoc basis were made when there was no time to consult the GPSC for extension of ad hoc appointments beyond one year of the initial appointment. The excuse of the State Government that some of the Lecturers had obtained interim order from the Court for being continued till the regular GPSC recruits were available, also was not found genuine. It was considered to be a serious note of indifference and negligence of the Government and some of the officials of the Executive. Page 34 of 104 HC-NIC Page 34 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT 20.1 Relevant paragraphs of the said judgment are reproduced hereunder: "25. The continuance of these ad hoc lecturers for many years beyond the first year for which the consultation from the GPSC was not necessary in view of the ad hoc nature of appointment may have nurtured hope in them that they will be regularised. In fact, in the office note, which is at Annexure "II" of the affidavit filed on 14th October 2002 in Letters Patent Appeal No. 817 of 2002, there is a reference to the fact that the office bearers of the Association were heard by the Hon'ble Chief Minister on 1751999 in a public relation meeting, and that the Chief Minister had given a direction that the decision would be taken on the basis of the report of the Cabinet Sub Committee, and that, in principle, it was decided to continue these ad hoc employees and the concerned Minister will give directions as to the matter of holding of examination by the PSC. Though this note cannot be said to be an order of the Government and only reflects that the matter was in contemplation of the Government, such consideration would have given the ad hoc lecturers to understand that they will be regularised in service. Even in the affidavit of the Government filed on 14th June 2001 in Special Civil Application No. 2395 of 2000, it was stated that the Government had, pursuant to the order dated 452001,made in the said petition, directing the State Government to decide the representations of the ad hoc lecturers, taken a decision that the services of all the 330 persons appointed as lecturers in government colleges on ad hoc basis from time to time by the Commissioner of Higher Education pursuant to their selection by local selection committee constituted under the circular dated 21121992 should be regularised from the date of their appointment as was done in the case of Medical Officers, Page 35 of 104 HC-NIC Page 35 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Ayurved,Class II, under the G.R. dated 412 1999, and that for regularising the services of all such ad hoc appointees, a reference to the GPSC should be made to obtain its approval, as a special case. There was, therefore, clear indication that the case of these ad hoc employees would be regularised in consultation with the GPSC. However, that stand was changed, when it dawned on the Executive that they committed a legal blunder, in the affidavit, because, these ad hoc appointees could not have been regularised contrary to the Recruitment Rules in the post for which direct recruits were already selected through the PSC. In fact, according to us, these matters should not be viewed as having a "lis" between the ad hoc lecturers and the regular direct selectees. The direct selectees cannot be penalised to wait though selected as per the statutory rules through the PSC. They are rightly allowed to man the posts earmarked to be filled by them. The ad hoc lecturers, if at all, will have a legitimate grievance against the executive for continuing them on ad hoc basis for all these years without consultation with the GPSC, creating a hope in them that they will be some day absorbed. The executive acted in an arbitrary fashion in continuing them contrary to the statutory rules which empowered it to make ad hoc appointments only for a year and in breach of its statutory obligation to fill the post in the manner prescribed by the Rules. It will be for the government to consider the feasibility of giving appropriate relief in consonance with their statutory powers where such ad hoc appointees have been continuing over a long number of years. Issuing general declaration of indulgence is not the part of a court's jurisdiction, as held in Piyara Singh's case (supra) by the Supreme Court. The contentions raised on behalf of the appellants cannot,therefore, be accepted.

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26. Though these ad hoc lecturers cannot be directed to be continued contrary to the recruitment rules, nor can they be ordered to be regularised by any mode not warranted by the statutory rules governing the appointments to the cadre of Lecturers, GES, Class II (Collegiate Branch), in the facts and circumstances of the case, we direct that these ad hoc lecturers be treated as a separate class in view of their ad hoc continuance for nearly a decade due to reckless indifference in discharge of duties on the part of the executive and be considered for absorption in such posts as may be available with the government or under the authority of the government in consonance with the statutory provisions applicable to such posts. The State Government is also directed to inquire into the serious lapse of not consulting the GPSC while continuing these ad hoc lecturers contrary to Recruitment Rules beyond one year and fix the responsibility for the careless default that has resulted in the ad hoc lecturers being continued for long without consultation with the GPSC and for the posts not having been filled through the GPSC, as per the Recruitment Rules and the General Rules for over a decade, especially when there was no interim order of any Court, as we are told, which could have prevented the process of regular recruitment.

26.1 For the reasons indicated above, we also direct that each of the appellants ad hoc lecturers who are ordered to be relieved by the impugned action of the State Government be paid, by way of a token compensation, one month's salary, and such amount be recovered from the defaulting officers who may be found by the State Government to be responsible for the inaction in sending requisitions to the Gujarat Public Service Commission or in not consulting it while illegally continuing the ad hoc lecturers beyond one year of their initial local Page 37 of 104 HC-NIC Page 37 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT appointments, without bothering to consult the GPSC under the Rules.

26.2 Subject to the above directions, all these Letters Patent Appeals are dismissed with no order as to costs. All the Civil Applications which are filed in these Letters Patent Appeals stand rejected with no order as to costs."

21. In wake of such direction of treating these ad hoc employees as a separate class in wake of their continuation on ad hoc post for nearly a decade due to reckless indifference in discharge of duties on the part of the Executive, they were directed to be absorbed on such posts as may be available with the Government or under the authority of the Government in cognizance with the statutory provisions applicable to such posts. Those Lecturers, who were ordered to be relieved by the impugned action of the State Government were directed to be paid one month's salary by way of token compensation to be recovered from the defaulting officer.

22. This was challenged before the Apex Court by way of Civil Appeal Nos.3029 of 2005 to 3033 of Page 38 of 104 HC-NIC Page 38 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT 2005 and these Appeals were dismissed on 17.1.2008. It was observed that the said order would not preclude the appellants from appearing for interview which was scheduled on 21.1.2008. By way of Resolution dated 23.6.2009, it had been decided to absorb remaining of these ad hoc Lecturers in nonGovernment GrantinAid colleges as goodwill gesture with a pay of Rs.8000 13,500/, which was subject to the outcome of Special Civil Application No.1829 of 2008 dated 23.12.2008.

23. The petition was preferred being Special Civil Application No.6785 of 2009 under Article 226 of the Constitution of India seeking to challenge the Government Resolution dated 23.6.2009 so far as it affected the service condition of the petitioners as per the original appointment order dated 31.7.1991. It was further requested that the petitioner's service condition including his payscale, seniority and continuity of service etc. was required to be protected, till regularly selected GPSC candidates are made available. In the alternative, appointment be Page 39 of 104 HC-NIC Page 39 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT made of the petitioners in the Government Grant inAid colleges by protecting their original service condition including continuity of service, seniority and payscale and thereby permanently restraining the State from compelling the petitioners to accept the service.

24. Before the Coordinate Bench, there was no challenge to the Government Resolution dated 23.6.2009, which provided for absorption/appointment of ad hoc Lecturers to the nonGovernment GrantinAid institution and, therefore also, the Court has not expressed any opinion. The Court held that there was no compulsion on the part of the petitioners to accept the appointment on regular post in the Government GrantinAid institution, as averred. As per the Government Resolution dated 23.6.2009, if they do not want to accept the appointment, they need to face the consequences and they cannot claim appointment on regular post. They have prayed to continue on the post of ad hoc Lecturer, which was permitted by the Court. The Court also referred to the decision of K.D. Page 40 of 104 HC-NIC Page 40 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Vohra(supra) to hold that those appointed initially on ad hoc basis after requisite examination on regular post, if their initial appointment was on ad hoc basis and not according to the rules, the period of officiation in such posts cannot be taken into account for recounting the seniority. The reference is also made to the decision of State of Punjab and others vs. Ishar Singh and others reported in AIR 2002 SC 2422 where the Court was considering whether ad hoc services rendered by the employee is to be considered and the Apex Court answered in negation holding that for the purpose of calculating 8/18 years of service for grant of payscale, service rendered in the previously setup scheme was impermissible. This view also was taken in State of Haryana vs. Haryana Veternaty and A. H. T. S. Assocn. and another, etc. reported in AIR 2000 SC 3020.

25. The Court, therefore, held that the petitioners cannot claim continuity of service and pay protection by counting on service rendered by them as ad hoc Lecturers, as they had Page 41 of 104 HC-NIC Page 41 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT neither passed the examination nor passed the examination conducted by the GPSC, as prayer for grant of continuity of service, pay protection by counting their service rendered as ad hoc Lecturers cannot be accepted and granted.

26. Their request of continuing as ad hoc Lecturer also was turned down on 8.12.2009. The Government Resolution was passed by the Government in relation to those, who were serving as ad hoc employee and were later on directed to be absorbed in the nonGovernment GrantinAid colleges to close their GPF account and pay them the entire amount with interest on condition that the GPF account will be permanently closed and as their appointment is fresh, they shall be governed by the new pension scheme which was effected from 1.4.2005. Therefore, in this background the prayer of the petitioners is required to be considered of conferring continuation of GPF account, pay protection and pension. These petitions are to be decided on the anvil of Articles 14 and 16 of the Page 42 of 104 HC-NIC Page 42 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Constitution of India. Going by the principles laid down in the judgment of K.D.Vohra (supra), the appointment of all the petitioners on ad hoc basis was in contravention of the rules which were prevalent. The Governor of Gujarat made rules for regulation of recruitment to the post of Lecturers in Government colleges of Arts, Commerce and Science to the post the Gujarat Educational Services, ClassII, (Collegiate Branch) called the Lecturer Government Arts, Science and Commerce Colleges (Collegiate Branch) Recruitment Rules, 2004. The appointment to the post of Lecturers in such colleges in Gujarat Educational Services, ClassII(Collegiate Branch) as held by the Division Bench was to be made by direct selection to the said post. The recruitment rules contemplated selection to be made by the GPSC. The proviso to Rule 3 of the said recruitment rules empowered the GPSC to relax certain qualifications. Rule 9(g) of the Gujarat General Rules of 1967 provided that appointments were to be made after consultation with the GPSC. The Division Bench did not find Page 43 of 104 HC-NIC Page 43 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT any regulation made under the proviso to Class III of Articles 309 of the Constitution of India dispensing with the process of consultation. So far as those posts were concerned, both the General Rules and the Rules which were the force of the law were having binding effect to all the concerned.

27. It was held that the action of the State Government was covered by the rules. It would be apt to refer to the findings and observations of the Division Bench in K.D.Vohra.(supra) as under: "11.6 The Rules made under the proviso to Article 309 regulating the recruitment and conditions of services of persons appointed to such services or posts will operate with full force, subject to the provisions of the Constitution or any Act made by the appropriate Legislature, as contemplated by Article 309. Apart from this limitation and in the absence of any Act of the appropriate Legislature on the matter, the Rules will have full effect and must be enforced. In the present case, the recruitment rules for the post of Lecturer, GES, Class II (Collegiate Branch) stipulate only one mode of recruitment i.e. of "direct selection"

from amongst the modes available under Rule 9(1) of the General Rules. Rule 9(2) of the General Rules framed under Article 309 of the Constitution require, as noted above, Page 44 of 104 HC-NIC Page 44 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT that, every such appointment shall be made after consultation with the Public Service Commission unless under a regulation made under proviso to clause (3) of Article 320, such consultation is not necessary. It would, therefore, follow that there can be no relaxation of the basic or fundamental rules of recruitment which prescribed direct selection through the Public Service Commission as the only mode of recruitment to the post for which the recruitment rules are framed under Article 309. Mere executive instructions under Article 162 read with Article 166 cannot supercede the recruitment rules made under the proviso to Article 309 which have the force of law. Since there is no option left with the government under the Lecturers, GES, Class II Rules 1980, to adopt any mode other than of direct selection for appointment to the post, will fly in the face of the recruitment rules and cannot be validly recognised.

         In       fact,   regularisation       cannot       be 
         said       to     be     a     mode     of   recruitment.

[See R.N.Nanjundappa v. Thimmiah, reported in (1972) 1 SCC 409].

11.7 The power of regularisation, in absence of any provisions in the Act or Rules made under Article 309, would be referable to the executive power under Article 162 and not to the legislative or rule making power under Article 309. Therefore, when the field is occupied by law which expression will include rules having force of law, there would be no scope for exercising executive power in a manner that would be in conflict with such law. In the present case, there was no attempt made by the State Government to absorb the ad hoc appointees by making any regularisation or absorption rules having force of law. The process of recruitment of Lecturers, GES, Class II (Collegiate Branch) by way of direct Page 45 of 104 HC-NIC Page 45 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT selection through the PSC which was undertaken, as per the recruitment rules, cannot, therefore, be halted. In fact, the appointment orders of such 342 direct recruits who were selected are already issued (132 orders were issued on 10th November 2001 and 210 on 9th October 2002, of which 123 are awaiting posting, as stated by the learned Advocate General). As held by the Supreme Court in Piyara Singh's case (supra), the appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of the ad hoc / temporary employees. In the present case, the ad hoc employees are being replaced by the regularly selected employees and therefore, the appellants cannot make any grievance against such replacement which was contemplated by the very nature of their ad hoc appointments, which temporary status never was altered.

12. It was sought to be urged on behalf of the appellants that the appointments of the appellants should be treated as regular, because, they were having the requisite educational qualifications when selected as per the policy of local recruitment by a committee prescribed by the government orders, dated 21st December 1992.The circular dated 21st December 1992, which is on record, shows that the instructions were issued by the office of the Commissioner of Higher Education as regards the procedure to be followed for local appointments in the government colleges. It was, inter alia, mentioned therein that there would be a Selection Committee for taking interview of the candidates for the purpose of such local appointments on ad hoc basis comprising Joint Director of Higher Education or an officer of the rank of Joint Page 46 of 104 HC-NIC Page 46 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT / Deputy Director authorised by the Joint Director of Higher Education, who would be the Chairman, the Principal of the concerned college, the senior most lecturer of that college, and an expert in the subject concerned, to be appointed from the panel of senior lecturers prepared for the purpose. It was further provided that, there should be at least three members present in the Committee for discharge of its functions, and that if the Chairman was not able to remain present, the Principal of the College would function as a Chairman. If the senior most lecturer who was the member did not remain present, then it was left to the Principal to call another senior lecturer of the same college. In the same way, if the expert member who was lecturer from the panel was not able to remain present for taking the interview, it was left to the Principal to call the lecturer teaching the subject concerned in the concerned college itself. Marks were to be allotted from 25 marks by each of the four members individually, and a merit list was to be prepared on the basis of such allotment of marks. The circular also provided for open interview. In paragraph 11 of the circular, it was stated that, ordinarily, the lecturers were to be selected through the Gujarat Public Service Commission only on permanent basis. However, as an exception, the ad hoc temporary appointments were made as per the above procedure. If it is not possible to make local appointments in the above manner, in some special circumstances, local appointments could be made after prior permission by adopting the method of open interview. It is clear to us that the local appointments of ad hoc lecturer by way of stopgap arrangement as per the procedure prescribed by the said circular was not intended to prescribe any alternate mode of regular appointment Page 47 of 104 HC-NIC Page 47 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT to the cadre of Lecturers, GES, Class II Services, but by their very nature, such appointments were subject to the availability of the regular recruits. The conditions of local appointments provided that the ad hoc appointees would be relieved as soon as the PSC candidate or a transferee reported for the post. This is clear from the condition No.7 of the conditions of local appointments, which are placed on record along with the said circular. In the appointment orders, admittedly, it was specifically mentioned that the appointment of these persons was purely on ad hoc basis and they would have no right to the post of lecturer. It was specifically stated in these orders that, on the availability of the regular candidate through the Public Service Commission or by transfer of lecturers, the ad hoc employee will have to be replaced. In cases of those who were appointed keeping their lien in Class III posts in the Government schools, they were required to be reverted and in other cases where there was no such lien, the ad hoc recruits were to be relieved. There is no dispute over the fact that the appointments of all these appellants were made purely on ad hoc basis, with a clear stipulation that they were to be relieved on the availability of the GPSC candidate.

13. Selection by way of local arrangement for a stopgap appointment of lecturer by local committee in which the college concerned had a major voice by virtue of its principal and senior most lecturer being the member of the Committee, of which quorum was three, can hardly be compared with the selection by the Gujarat Public Service commission, which is a constitutional body, for regular appointment to the post in the cadre of Lecturers, Gujarat Education Page 48 of 104 HC-NIC Page 48 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Service, Class II, as per the recruitment rules. The purpose of such recruitment is aimed at securing the best available talent for the teaching post. There is nothing common between such local committees and the GPSC. The functions of the PSC are meant to ensure that vacancies are filled by deserving and capable hands and are not filled either by the relatives or friends or flatterers. Though the powers of the PSC are advisory in character, it is required to be consulted, as provided by clause (3) of Article 320 of the Constitution, unless such consultation is dispensed with by a regulation made under the proviso to clause (3) in respect of the specified matters or particular class of case or circumstance. The Commission having been entrusted with the constitutional duty to select suitable candidates by inviting applications from the open market, every eligible candidate will have a fundamental right to seek consideration for selection through open competition (See P. Ravindran v. Union Territory of Pondichery, reported in (1997) 1 SCC 350).

13.1 The fact that there is no provision in the Constitution which makes the acceptance of the advice tendered by the PSC, when consulted, obligatory renders the provision of Article 320(3) directory, and not mandatory, but that does not amount to saying that it is open to the executive government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. The proviso to clause (3) of Article 320 clearly envisaged framing of regulations which are to be led before the Legislature, if at all the process of consultation is to be dispensed with in matters which are to be specified. Once such regulations have been made, they are Page 49 of 104 HC-NIC Page 49 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT meant to be followed in letter and spirit. It would not be open to the executive government to bypass the process of recruitment through open competition to be held by the PSC in services which fall within its purview under Article 320 of the Constitution.

xxx xxx xxx xxx xxx xxx

17. It was argued that, from the continuance of the ad hoc appointees for long period, it should be inferred that the recruitment rules were relaxed in their favour and they are deemed to have been regularised. The appointments of the appellants and the like were mere local appointments made dehors the rules and such ad hoc appointments could not have been made for a period exceeding one year, without consulting the Public Service Commission. The posts having not been filled up on regular basis in accordance with the statutory rules were required to be treated as vacant for the purpose of undertaking the process of regular recruitment. The terms of appointment of the ad hoc appointees clearly stipulated that they would be relieved when the PSC candidate or a transferee was available. Such ad hoc status of these appointees did not at any stage alter by any rules or regulations having force of law. The appellants and the like who were appointed in ad hoc capacity, therefore, continued to hold the posts in that capacity only, and there would be no alteration of their status from ad hoc appointees to regular recruits. As held by the Supreme Court in State of M.P. v. Dharam Bir, reported in (1998) 6 SCC 165, it is not open for any government employee to Page 50 of 104 HC-NIC Page 50 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. The exigencies of service often require ad hoc arrangement till the regular selection gets finalised. If the ad hoc employees who continued as ad hoc beyond one year are to be regularised or deemed to have been regularised as argued on their behalf, that would frustrate the very process of selection and appointment as per the mode and procedure prescribed by the statutory rules, and, as would happen in the present case, no posts would be left for the regularly selected persons, because, two persons cannot hold the same post on a regular basis. As held by the Apex Court in Piyara Singh's case (supra), efforts should always be to replace such ad hoc employee by a regularly selected employee as early as possible. Such temporary employee may also compete along with others for such regular selection / appointment and if he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be held in abeyance for the purpose of allowing the ad hoc employee to continue. When the field is covered by the statutory rules laying down the mode of regular appointments, the Courts will not be justified in directing any regularisation which may be dehors the rules. No illegality should be allowed to perpetuate under the Court orders. Therefore, the Court while holding that the regular appointments by direct selection to the post of Lecturers can be made only as per the recruitment rules and the general rules in consultation with the GPSC as contemplated thereunder, cannot, in the same breadth, order that the ad hoc appointees irregularly continuing beyond one year Page 51 of 104 HC-NIC Page 51 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT pending the availability of regular GPSC recruits should be treated as regularised due to their prolonged continuance on ad hoc basis. That would amount to asking the government to violate the statutory rules in the context of the ad hoc appointees while professing to uphold and enforce them in context of the direct recruits. Such selfcontradictory approach would be a mockery of the legal system. It would be for the State Government to devise any scheme consistent with the recruitment rules or a validating statutory provision, if at all the ad hoc appointees are to validly hold the post. It is obvious that the State cannot be compelled by the Court to legislate in the matter for making any statutory exception in the recruitment rules or to retrospectively validate by a statutory provision any such ad hoc appointment."

28. It is to be noted that the petitioners have sought to secure regularisation prior to their preferring Special Civil Application No. 2395 of 2001 and allied matters by asking for confirmation of continuity of service. The writ petition being Special Civil Application No.938 of 1998 and allied matters were dismissed and Letters Patent Appeal No.1057 of 1999 arising from the said Special Civil Application No. was also dismissed.

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29. It is argued fervently by the State that accepting any prayer of the petitioners would amount to nullifying the effect of judgment of Division Bench in K.D.Vohra.(supra) as all aspects relating to regularisation have been dealt with in detail in the said judgement, all reliefs sought for are consequential reliefs to regularise and writ petition being Special Civil Application No. 6785 of 2009 also had been rejected which was filed by ad hoc Lecturers. The said order has not been challenged before the higher forum and had attained finality. It is also the say of the State that the petitioners have not challenged the Government Resolution dated 23.6.2009. Therefore, the petitioners cannot now turn around and make a Reference in the matter of extension of benefits of service etc., which had been already declined twice by this Court. The absorption which had been directed by the Court was not with continuity of service but absorption simplicitor. Whereas, it is the stand of the petitioners that they were appointed prior to 1.4.2005 and subsequently they Page 53 of 104 HC-NIC Page 53 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT were absorbed in the year 2009 in GrantinAid colleges. Extension of post retiral benefits such as pension and gratuity independently on the basis of similarly situated ad hoc Lecturers is being sought. According to the petitioners, it is the question to be agitated independently, and therefore, the petitioners are before this Court. The State, otherwise, is contending all along that the grant of the relief sought for in this group petitions would mean indirectly granting regularisation, that would essentially affect the decision of the Division Bench and that is impermissible. Reference also is made of the petition of 1998, where also the learned Single Judge of the coordinate Bench which had denied benefits of the similar nature to the ad hoc employee similarly situated and no challenge further had been made and, therefore, it is urged that the decision of the coordinate Bench should be followed by this Court.

30. The only avenue open is as to whether those who were similarly situated have been availed the Page 54 of 104 HC-NIC Page 54 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT benefits, which have been denied to the petitioners either by way of same resolution or by way of office order of the Government. Reasons:

31. As mentioned hereinabove, the petitioners have joined the service as Lecturers in Government colleges and such appointment was made after a protracted litigation. Given the chronology of events, as discussed at length hereinabove, when the GPSC selected candidates were not appointed on the post occupied by the ad hoc employees, which included the present petitioners, this Court gave stern directions in the decision of K.D.Vohra vs. Kamlesh Gobarbhai Patel and others(supra) and while denying any regularisation to the petitioners and those who were similarly situated, the Court directed them to be treated as a separate class and also further directed to explore the possibility of regularisation of their service in accordance with law.

31.1 Therefore, on the post which remained Page 55 of 104 HC-NIC Page 55 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT vacant after appointment of the GPSC selected candidates, after framing the guidelines, the petitioners were to be absorbed, considering the efflux of time, as further detailed, for accommodating the persons, who had cleared the GPSC examination. The junior most ad hoc Lecturers were declared surplus and the Government decided to absorb them in GrantinAid colleges. This exercise was carried out firstly in the year 2004, as a decision of this Court had been delivered in the year 2003. There were approximately 85 to 88 lecturers, who were so absorbed in GrantinAid colleges, and they were duly recognized and by virtue of the order dated 12.2.2004 were given the benefit of GPF scheme. It was so because prior to 1.4.2005, the said scheme was in existence since these persons being the junior most, were accommodated in Grantin Aid colleges in the year 2004, and they received the benefit of GPF scheme. It is not to be forgotten that those were shifted were the junior most and the Government was required to pave a way for those, who were selected by the GPSC, to Page 56 of 104 HC-NIC Page 56 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT honour the direction of this Court. It is a sheer coincidence that their appointment was on 12.2.2004 and the GPF scheme continued upto 1.4.2005. It is although not in dispute that in the year 2007, there were about 14 to 15 persons, who too were absorbed in GrantinAid Government colleges. Nothing emerges on the record to substantiate the aspect that they too were getting the benefit of the GPF scheme. So far as other employees, which included the present petitioners, are concerned, the newly defined Contributory Pension Scheme came to be implemented by the State Government on 1.4.2005. The Government had stopped the benefit of GPF scheme on the ground that those who were absorbed after 1.4.2005, could not be granted such benefit as the scheme itself has been discontinued. All those who were appointed subsequently are governed by the newly defined Contributory Pension Scheme. Uncontrovertedly, the appointment of the petitioners was in wake of the consideration of the Government, pursuant to the direction of this Court, which directed the Page 57 of 104 HC-NIC Page 57 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Government to consider the plight of those, who worked for long years. They have been appointed as fresh appointees in whichever colleges they have served presently from 8.12.2009. So far as the present petitioners are concerned, their absorption was to be treated as per the Government policy as fresh appointment. Their GPF account also has been discontinued and in their case, continuity of service has not been considered. In such view of the matter, to insist on GPF account to be continued and also to ask for continuation of service whether is to overreach the decision of this Court in K.D.Vohra vs. Kamlesh Gobarbhai Patel and others(supra). Of course, qua the junior most appointees in the GrantinAid colleges from the year 1984, in wake of the continuity of the GPF scheme, upto 1.4.2005, they got the benefit of the GPF Account continued. As there came a change in the policy of the Government from 1.4.2005, none of the persons, who have been appointed in post 1.4.2005 period, is made available benefit of the GPF scheme.

Page 58 of 104 HC-NIC Page 58 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT

32. Those who have been absorbed in the year 2007, no material worth the name is with the Court. Claim of the petitioners could be tested thiswise, as to whether they could insist to be equated with group of employees absorbed in the years 2004 and 2007. If the beneficial terms prevalent earlier are withdrawn at a later stage, whether such changes be treated as sheer fortuitous circumstance and to deny the very benefits to the similarly situated employees! 32.1 When the first lot of 83 to 85 person could not be accommodated in the Government colleges in GrantinAid colleges, they were shifted. This shift was followed by continuing their GPF accounts, which they already had and since that was the policy, their appointment too was treated as fresh appointment and it appears that continuity of service has not been granted to those employees as well. The petitioners seek post retiral benefits and other rights on the basis of rights of similarly situated ad hoc Page 59 of 104 HC-NIC Page 59 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Lecturers.

32.2 This Court cannot be oblivious of the fact that identically situated persons, who were not granted continuity of service and pay protection for the service at Government colleges, had approached this Court by way of Special Civil Application No.6785 of 2009, which was dismissed on 8.7.2009 and this had not been further challenged.

32.3 Relevant findings of the coordinate Bench are profitably reproduced, which read thus: "5. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that for the appointment on the post of lecturer, a candidate has to pass examination conducted by the GPSC and is to be selected by the GPSC. Admittedly, petitioner has not passed GPSC examination nor is selected by the GPSC. For all these years, the petitioner is continued to be as ad hoc lecturer. Therefore, considering statutory requirement petitioner cannot claim as a matter of right to continue him as lecturer on ad hoc basis. As such, the said prayer has been turned down by the Division Bench in Letters Patent Appeal No. 485 of 2002 and other allied matters, however while disposing of the Letters Patent Appeal the Division Bench has observed that looking to Page 60 of 104 HC-NIC Page 60 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT their long service they may be treated as a separate class and they can be absorbed in government grantinaid institution. Accordingly, considering the above the State Government has issued G.R. dated 23.6.2009 to absorb /appoint petitioner and another ad hoc lecturers who are working since years in the Government grantinaid institution in the regular pay scale of Rs. 800013500/. It is to be noted that as such said resolution is under challenge and as in the present Special Civil Application the said G.R. is not under challenge, this Court is not expressing any opinion with respect to G.R. dated 23.6.2009. A camp was organized on 4.7.2009 and at that stage and after 4.7.2009 the petitioner has preferred the present Special Civil Application claiming continuity in service, pay protection etc. considering his earlier service as ad hoc lecturer and/ or to continue the petitioner as ad hoc lecturer in the government college where the petitioner is at present serving. It is to be noted that as such there is no compulsion on the part of the petitioner to accept the appointment on regular post in the government grantinaid institution as offered as per the resolution dated 23.6.2009. If the petitioner does not want to accept the appointment as per the Government Resolution dated 23.6.2009, in that case, petitioner has to face necessary consequences and he cannot claim, appointment on regular post on certain terms and conditions and on the other hand by not accepting the same, he has prayed for to continue him as ad hoc lecturer. If the petitioner does not want to accept the appointment on regular post as provided under the Government Resolution then he shall be continued as ad hoc lecturer and whatever consequences as ad hoc lecturer shall follow.

Even in a case where an employee who was initially appointed as ad hoc subsequently appointed after the passing the requisite examination and subsequently appointed on regular post, the Hon'ble Supreme Court in the case of Keshav Chandra Joshi and Others Vs. Page 61 of 104 HC-NIC Page 61 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Union of India and others reported in AIR 1991 SC 284 has held that where initial appointment is only ad hoc and not according to the rules and is made as a stop gap arrangement, the period of officiation in such post cannot be taken into account for reckoning the seniority. In the case of State of Punjab & Others Vs. Ishar Singh & Others reported in AIR 2002 SC 2422 while considering the grant of higher pay scale whether ad hoc service rendered by the employee is to be considered or not? the Hon'ble Supreme Court has observed and held that ad hoc service rendered by the employee is not to be considered for the purpose of calculating 8/18 of service for grant of higher pay scale in the profency set up scheme. The similar view has been expressed by the Hon'ble Supreme Court in the case of State of Haryana Vs. Haryana Veternaty and A.H.T.S. Association and another reported in AIR 2000 SC 3020. In view of the above, petitioner cannot claim continuity of service and pay protection by counting service rendered by him as ad hoc lecturer. It is required to be noted that as such even otherwise petitioner cannot claim as a matter of right the regular appointment as lecturer as he has neither passed the examination conducted by the GPSC nor he is selected by the GPSC. Under the circumstances, prayer of the petitioner to grant continuity of service, pay protection etc. by counting his service rendered by him as ad hoc lecturer, while appointing petitioner in government grantinaid institution cannot be accepted and granted. "

32.4 In the case of State of Bihar vs. S.A. Hassan and another reported in (2002) 3 SCC 566 the issue was of taking over of private medical college and the respondents were employees of the college. The State Government, by a notification, Page 62 of 104 HC-NIC Page 62 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT took over the management of the college in the year 1979 in terms of provisions of the Bihar Private Medical College (Taking Over) Act, 1978, the respondents continued as employees of the college on ad hoc basis. Thereafter, the service came to be regularised in terms of section 6 of the said Act. They were also granted pension and pensionary benefits counting the period of service from the taking over of the college till the date of retirement. However, the High Court held them entitled to get benefit for the period of service from their initial appointment in the college under the private management till their date of retirement relying on some of the earlier decisions.

32.5 Referring to some other decisions of the High Court, a contrary view was expressed and the appellant State moved the Supreme Court to settle the law. The Act was silent on the question of counting previous service towards pension.

Allowing the appeal, the Supreme Court held that from the date of taking over in the college, the Page 63 of 104 HC-NIC Page 63 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT respondents ceased to be employees of the erstwhile management and became the employees of the State Government on ad hoc basis. This ad hoc appointment was subsequently regularised and thus they became permanent employees of the State Government. Therefore, they cannot claim any benefit for service rendered by them in the colleges, while it was under private management since there was no specific provision to count previous service to any extent. There was no material before the Court to indicate that the erstwhile management was liable for any pensionary liability in relation to the employees. Moreover, section 6 of the said Act specifically dealt with subject of determination of the terms and conditions of teaching staff and other employees, which also did not mention about giving weightage to the past service for any purpose. There was no order of the State in that regard and, therefore, the contention of the respondents had no force, according to the Apex Court, for not being legal nor had any factual basis. The Court, therefore, held that the Page 64 of 104 HC-NIC Page 64 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT respondents were not entitled to claim the benefit of period of their service while they were under erstwhile employment for the purpose of calculation of their pension and pensionary benefits. The Court held that the judgment rendered would come into effect prospectively.

Those who retired on superannuation and those who had been otherwise given the benefit, no recovery would be effected.

33. In the case of Veer Kunwar Singh University Ad hoc Teachers Association and others vs. Bihar State University (C.C) Service Commission and others, (2009) 17 SCC 184, the appellant Association was an Association of ad hoc teachers appointed in various colleges affiliated to the Veer Kunwar Singh University were governed by the provisions of Bihar State University Act.

33.1 The Supreme Court in another judgment of

6.12.1989 by ad hoc teachers of Ranchi University, in a claim for regularisation, had deprecated common practice of appointment of ad Page 65 of 104 HC-NIC Page 65 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT hoc teachers and had prescribed the selection to sanctioned posts on the basis of merit. The Apex Court, however, allowed the relaxation of maximum age for recruitment of teachers to the extent of service rendered as ad hoc teachers. Again, the sanctioned posts were to be allowed to continue till selection was made by the University Grants Commission and they were to be paid for the period for which they actually worked. The time limit of four months had been set for recruitment. As thousands of posts were lying vacant, the time limit of four months could not be adhered to.

33.2 A writ petition was filed before the Patna High Court by the Federation of the University of Ad hoc Teachers Association. The Court appointed a Committee to identify the vacant posts within a particular time frame and further held that the finding of the Committee on the question would be final.

33.3 The Apex Court held that the creation of Page 66 of 104 HC-NIC Page 66 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT sanctioned post is sine quo non for recruitment to the post of Lecturers and adherence to the statutory provisions is imperative in character. It also held that strict compliance with the constitution scheme, Statute and Rules in public employment is a must for the absorption, regularisation or permanent continuance of temporary, contractual, casual, dailywage or ad hoc employees appointed and continued for a long in public employment. If there is violation of constitutional scheme of equity as adumbrated under Article 14 of the Constitution as also in violation of the provisions of the Act, it was held that legislation framed contrary to the constitutional scheme of equity, would be wholly illegal and without jurisdiction.

" Evidently, the endeavour on the part of the appellants and interveners herein was to obtain a direction from this Court that their cases may be considered by a Public Service Commission or in its absence by the State or by the University on the basis of a qualification held by them prior to 1993. In our opinion, no such direction at this point of time can be issued. We will assume that the State and/or Universities had failed to adhere to the time frame fixed by this Court, but even if a violation of this Court's order in that behalf had taken place, the same by itself would not lead to an inference that the respondents were Page 67 of 104 HC-NIC Page 67 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT still to obey the order of this Court, despite the change in law, which had taken effect in this behalf. Such a direction cannot be given at this stage in view of the decision of the Constitution Bench of this Court in Umadevi (supra), wherein it was directed :

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 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 the courts or of tribunals. The question of regularisation 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 abovereferred 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 regularise as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the 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 regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as Page 68 of 104 HC-NIC Page 68 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT precedents."

34. This Court notices that all appointments, which were made on 4.7.2009 specifically mentioned that in wake of decisions rendered by the Division Bench of the Apex Court on 11.12.2002 in Special Leave Petition Nos.3029 to 3033 of 2005 and also by the Apex Court on 17.1.2008 in the challenge made against the same complaint with the Education Department resolution dated 23.6.2009, the petitioners have been absorbed in Arts, Commerce, Science and Law colleges.

35. In the present petition also, there is no challenge to the Government Resolution dated 23.6.2009. It would be worthwhile at this stage, once again to refer to the said Resolution dated 23.6.2009. Under the heading of absorption of ad hoc Lecturers of Government college in non Government GrantinAid college, the case history of litigation and also the reference to the direction of the High Court have been given with Page 69 of 104 HC-NIC Page 69 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT a further mention of direction of Division Bench. The challenge made by these employees by way of Special Civil Application No.1829 of 2008 and Special Civil Application No.1924 of 2008 also have been referred to. It further states that in wake of vacation of injunction order by way of Government Resolution dated 23.12.2008, it had been decided to absorb all these lecturers in GrantinAid nonGovernment colleges as a goodwill gesture, who had served for two decades. It further mentions that in all, there are 201 ad hoc Lecturers, who shall be posted initially in the payscale of Rs.8000/ to 13,500/ and the Roster shall have to be followed while absorbing them. The Commissioner, Higher Education was authorised to implement the said order. It is not so, of course, in respect of continuity of service or their right of pension.

36. Subsequent Government Resolution dated 3.8.2011, provides for services of ad hoc Lecturers working in the Government college, who were subsequently appointed through the GPSC to Page 70 of 104 HC-NIC Page 70 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT be regularised for the purpose of leave, pay and pension and office order has been continued by the Commissioner of Higher Education on 21.3.2012, whereby the said service of ad hoc Lecturers is to be regularised for the said purpose on the condition prescribed in the said order.

37. Reference would be also necessary here to the Government Resolution dated 17.1.2008, where the period of service rendered prior to regularisation on ad hoc basis needed to be considered continued and for the purpose of pension and other benefits. This Government Resolution as a specialized case, in case of 12 doctors, was issued likewise in case of some of the other category of professionals, the said issue of ad hoc employee had been discussed.

38. In case of those employees, who had worked from 1987 to 1994 for more than 10 years, the question had arisen of considering their ad hoc service for the purpose of leave and pay. The ad Page 71 of 104 HC-NIC Page 71 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT hoc services were to be linked and if there was no protection in the service, for the purpose of pension also, this was needed to be treated as continuous service. However, for some reasons in some cases, where the GPSC would not accept the proposal of appointment, even while disregarding its opinion, the concerned authorised officer can pass an order in linking the ad hoc services for the purpose of pay, leave and pension. In case of 111 lecturers the Government had linked their ad hoc service. Those of them, who worked in the Government colleges as ad hoc Lecturers such benefit was to be granted, if the service was uninterrupted and continuous.

39. This Court, thus, noticed that the Government does have the powers to consider the ad hoc service for the purpose of leave, pay and pension. In the appointment letter issued in favour of the petitioners, no such provision has been made. The Court must also recognize the fact that all the Government Resolutions are meant for those employees, who are regularly selected in Page 72 of 104 HC-NIC Page 72 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT service and, moreover, the case of the petitioners cannot be considered in disregard to the decision of the Division Bench of this Court and also the order of the learned Single Judge. Summary of Events:

40. To summarize, it is quite obvious that the journey of litigation which had been initiated by the petitioners in the year 1995, who were adhoc lecturers, has culminated into the present petitions.

40.1 In the year 1995, this Court, by way of interim relief protected the services of the ad hoc Lecturers, directing the authority to maintain status quo. In the year 1998, another set of ad hoc Lecturers preferred writ petitions challenging the proposed termination. This Court granted interim relief and directed the State Government to continue the petitioners as ad hoc Lectures till the regularly selected candidates were available. These petitions, eventually, were disposed of with the direction to continue these Page 73 of 104 HC-NIC Page 73 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT persons till the GPSC selected candidates were appointed.

40.2 A group of petitions, thereafter, were filed by the direct recruits to appoint them as Lecturers and cross petitions by ad hoc appointees to regularise their services. As noted in detail, the learned Single Judge allowed the petitions of direct recruits and dismissed those of ad hoc Lecturers, holding that they be treated as surplus, but, were not entitled to any regular salary or financial advantage.

40.3 This was further challenged by preferring Letters Patent Appeals and the same were dismissed. However, the Court directed the State Government to formulate a scheme for the ad hoc employees treating them as a separate class in view of their continuance for nearly a decade. 40.4 Challenge before the Apex Court by way of Special Leave to Appeal was also filed on 17.1.2008, which permitted them to appear for Page 74 of 104 HC-NIC Page 74 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT interview which was scheduled in the very month. 49.5 In the meantime, about 83 persons were absorbed in GrantinAid colleges, as per the direction of Division Bench in the year 2002. 15 persons were absorbed apropos the order passed by the Apex Court on considering individual case of the Lecturers.

40.5 It appears that the State Government issued a Government Resolution so far as remaining ad hoc Lecturers are concerned. This was challenged so far as it affected the service conditions of one of the ad hoc Lecturers and the same was dismissed by the learned Single Judge in Special Civil Application No.6785 of 2009. No further challenge was made by the petitioners of that matter.

40.6 The State Government issued a Government Resolution on 23.6.2009 in its Education Department for discontinuation of ad hoc Lecturers, who are working in the Government colleges in view of the newly defined Page 75 of 104 HC-NIC Page 75 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Contributory Pension Scheme which came into force from 1.4.2005 and thus the GPF account of the ad hoc Lecturers came to be closed. It was resolved that the ad hoc Lecturers be discontinued from Government colleges and be absorbed in the Grant inAid colleges and they may be covered under the newly defined Contributory Pension Scheme. 40.7 Some of the petitioners preferred a writ petition being Special Civil Application No.1110 of 2011 and this Court on 2.8.2011 disposed of the same permitting the petitioners to make a detailed representation and directed the respondents to consider the same. The Court directed that those who were transferred or accommodated in nonGovernment GrantinAid colleges in the year 2004, since were junior to the present petitioners and have been given certain benefits and privileges, they should be extended in favour of the present petitioners also. The respondent also was to bear in mind the Government Resolution passed by the State Government dated 4.10.1999.

Page 76 of 104 HC-NIC Page 76 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT 40.8 Such a representation was made on 11.10.2011, for extending the benefit of continuity in service and pensionary benefits and the same on 12.12.2011 came to be denied by the State.

40.9 On 18.1.2012, the learned advocate for the petitioner issued contempt notice to the State Government that despite directions issued by this Court in its order dated 2.8.2011, the documents were not considered.

And therefore, the amended order came to be passed on 2.2.2012 taking into consideration all orders and it has been communicated by the respondent that the GPF scheme was in vogue when the earlier employees were absorbed in Grantin Aid colleges, but, after introduction of newly defined Contributory Pension Scheme, those benefits are not available to even those who are regularly appointed candidates.

40.10 Thereafter, Miscellaneous Civil Page 77 of 104 HC-NIC Page 77 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT Application No.430 of 2012 came to be filed before this Court and the Court disposed of the same availing liberty to the petitioners to take appropriate proceedings in accordance with law.

41. It is necessary to make a mention, at this stage, that principles laid down in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. reported in AIR 2006 SC 1806 and in the case of State of Karnataka & Ors. vs. M. L. Kesari & Ors. reported in 2010 (9) SCC 247 would not be applicable inasmuch as service of most of the petitioners as ad hoc Lecturers were continued by virtue of protection granted by this Court. Moreover, the reliance placed on the Government Resolution dated 29.12.1993 inasmuch as the provisions of the said Government Resolution are applicable to the regularly selected employees in service and not to the ad hoc Lecturers. This Court cannot be oblivious of the fact that the extensive attempts have been made by these petitioners to get themselves regularised, which not only had been denied emphatically by the Division Bench of this Court Page 78 of 104 HC-NIC Page 78 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT in the case of D.Vohra vs. Kamlesh Gobarbhai Patel and others (supra), the challenge to which also eventually failed before the Apex Court. The Court had deprecated the total callousness on the part of the Executive as well as GPSC which is a constitutional authority, in discharge of their vital constitutional functions in making appointments to the cadre of Lecturers. The Court went to the extent of calling this, as discussed hereinabove, a tort of misfeasance in public office. The Court also held further that these ad hoc Lecturers cannot be directed to be continued contrary to the Recruitment Rules and not warranted by the statutory rules governing the appointments to the said cadre of Lecturers, and therefore, they were directed to be treated as a separate class in view of their ad hoc continuance for nearly a decade due to"reckless indifference in discharge of duties on the part of the executive" and, thus, were directed to be considered for absorption in such post as may be available in the Government or under the authority of the Government in consonance with Page 79 of 104 HC-NIC Page 79 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT the statutory provisions applicable to such posts. Therefore, any direction of the kind which would mean denuding the mandate of the Division Bench of this Court is impermissible.

42. Worthwhile it would be to refer at this stage to the further affidavit filed for and on behalf of respondent No.1 State which states that after the judgment dated 11.12.2002 by this Court and apropose the representations filed by ad hoc Lecturers, their file was moved intra departmentally and interdepartmentally for taking necessary decision to accommodate the ad hoc Lecturers under the State Government or authorities under the State. It is the say of the State that the ad hoc Lecturers, instead of making representation for regularisation to the State Government, ought to have opted for absorption in GrantinAid colleges, as was done by other similarly situated ad hoc Lecturers in the year 200304.

42.1 As they had not opted for absorption in Page 80 of 104 HC-NIC Page 80 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT GrantinAid colleges, the petitioners, now, cannot turn around and find fault with the said authorities. They also cannot be permitted to make grievances for extension of benefit of pay protection and, more particularly, extension of benefit of erstwhile pension scheme. The disparity in the pay amongst the adhoc Lecturers is the result of fortuitous circumstance inasmuch as, 85 ad hoc Lecturers, who were absorbed in the GrantinAid colleges in the year 200304, in the payscale of Rs.800013,500/, were entitled for increment from the year 2004. The petitioners continued as ad hoc Lecturers in the Government colleges for drawing higher payscale of Rs.10,475/ per month with all other allowances admissible to the employees of the State Government, as compared to the initial pay of Rs.8000/ payable on fresh absorption in Grant inAid colleges. It is further the say of the respondents that the State Government had organized camp for absorption of ad hoc Lecturers in the year 2007 and also in the year 2008. The ad hoc Lecturers were asked to exercise their Page 81 of 104 HC-NIC Page 81 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT options, since that was not done, the Government vide Government Resolution dated 23.6.2009 resolved to absorb 201 ad hoc Lecturers.

43. This Court notices that after the decision rendered in the case of K.D.Vohra (supra) on 13.2.2003, some of the ad hoc Lecturers, who had joined as ad hoc Lecturers comparatively at a later stage, were issued office order and their services came to be terminated with immediate effect. It further mentions that if any such ad hoc Lecturers, whose services has been ended, gives the option in writing, then necessary procedure shall be adopted for absorbing him or her in primary or higher educational institutes/schools.

44. It is quite apparent from the contents of affidavit and also from this communication dated 13.2.2003 that only those persons, whose services had been ended by the State, were given this option. It was not a general option provided to all those who were ad hoc Lecturers and had lost Page 82 of 104 HC-NIC Page 82 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT before the Division Bench in the case of K.D.Vohra (supra). Those of them, who continued to work in the Government colleges, had no option, as was available in case of those ad hoc Lecturers, who were absorbed in nonGovernment GrantinAid colleges. It is inappropriate so also an incorrect stand on the part of the State to say that because it held the transfer camps prior to 2009 i.e. in the years 2007 and 2008, any one from amongst the ad hoc lecturers could have opted for it. When the State was expected to formulate the policy, which would be applicable in case of all similarly situated persons, any decision of the State in relation to this class of people treating them as a separate class should have been treated with a particular set of parameter. It is also not the stand of the State that no vacancies with nonGovernment Grantin Aid colleges, as it nowhere emerges from the further affidavit that for want of such vacancies, others, who were comparatively seniors, were not absorbed. The petitioners did not have the choice for having lost before the Page 83 of 104 HC-NIC Page 83 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT learned Single Judge and, before the Division Bench also. Their request of regularisation and of protection of pay also had been turned down. Only because they continued for about a decade or two decades, the Court had directed the State to take a policy decision in their cases.

45. In such backdrop of facts, to say that the petitioners had desired to continue with the Government colleges, and therefore, despite availability of seats and opportunity of exercising the option, they did not do so, is to state facts in complete contrast to the material on record.

46. Corollary to this is the request of their representation for being absorbed in the Government colleges but that also would not mean that they had been communicated the option of being absorbed in the nonGovernment GrantinAid colleges and yet had chosen to voluntarily continue at their given post. Undoubtedly, it was their desire to be absorbed in the Government Page 84 of 104 HC-NIC Page 84 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT colleges for having worked there for all these years and possibly considering the benefit of being the Government employees, at the same time, the need of the State to continue them for want of requisite number of the GPSC selected candidates also cannot be disregarded. Had that not been the case, there was nothing to prevent the State to terminate the services of these persons and offer them the option to be absorbed in the nonGovernment GrantinAid colleges.

47. Scenario that emerges, therefore, is that those of the employees, who were absorbed in the year 2004 and thereafter in the year 2007 had been specifically given the option to be absorbed in the nonGovernment GrantinAid colleges, whereas no such option was made available either in general or by a specific communication to the present petitioners, who continued to teach at Government colleges with a hope that the State would come out with a specific scheme treating as a separate class and would absorb in accordance with the existing rules as had been directed by Page 85 of 104 HC-NIC Page 85 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT the Division Bench.

48. This would also bring this Court to the question as to whether, while continuing as ad hoc employees in the Government colleges, the petitioners have earned any special benefits, which would disentitle them to then complain of their juniors enjoying better salaries and benefits due to fortuitous circumstances.

49. This issue, in particular, may pale into insignificance once they were not offered any option and when there was no policy, which would enable them to exercise such an option. Of course, while approaching this Court, with a request of regularisation, they made a request to be absorbed. For obvious reasons such a request could not come forth. Even ignoring these glaring facts, if one considers the salary paid in the payscale of Rs.800013,500/ to the ad hoc Lecturers every year till the year 2009 and other emoluments admissible to the regular employees selected through the GPSC, a comparative Page 86 of 104 HC-NIC Page 86 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT statement of the salary drawn by the petitioners on one hand and the salary of the ad hoc Lecturers absorbed in the GrantinAid Colleges in the year 2004 on the other hand with the initial pay of Rs.8000/, is provided by the State at AnnexureV of the further affidavit. Undisputedly, those of them, who continued with the Government employment were paid more than those employees, who were with the nonGovernment GrantinAid colleges. Comparison, if is made of the petitioners, while drawing the pay of Rs.10,475/ in the month of April, 2004 under the heading of GPF, DA and HRA respectively, were getting Rs.5238/, Rs.1728/ and Rs.3143, the total of which comes to Rs.25,584/, whereas the persons, who were in the payscale of Rs.8000/ were getting GPF, DA and HRA respectively at Rs.4000/, Rs.1320/ and Rs.2400/, the total of which comes to Rs.15,720/. The difference comes of Rs.7548/. This difference from April, 2004 continued upto January, 2009. As submitted by learned advocate Mr.Vaibhav Vyas, learned advocate for the petitioners, they are ready to Page 87 of 104 HC-NIC Page 87 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT return all the benefits, which they had received from more than those Lecturers, who were absorbed in the year 2004. So far as pension scheme is concerned, as can be noted from the affidavit itself, difference between old pension scheme and newly defined comparative pension scheme, in the words of the officer, as given in further affidavitinreply, is as under: "(i) In the old Pension Scheme, there is a contribution of the employee concerned, which contribution is paid to the employees along with interest, upon their retirement plus pension every month, other retirement benefits, plus family pension after the death of the employees concerned to the family members.

(ii) Under the new Defined Pension Scheme, thee is contribution of the employee and the State Government in equal proportion and upon retirement, the employee concerned is paid total sum along with interest accrued thereon. For example if the contribution of the employee is Rs.1,000/ per month equal amount is to be contributed by the State Government. The said amount of Rs.2,000/ will earn interest and upon retirement, the employee will be getting the total sum along with interest accrued thereon and other benefits except Pension and Family Pension."

50. Moreover, after the introduction of newly defined Contributory pension, vide Government Resolution dated 18.3.2005, of the employees of Page 88 of 104 HC-NIC Page 88 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT the Government and Panchayat, appointed on or after 1.4.2005, are being governed by the said newly defined Contributory and as appointment of the petitioners is after 1.4.2005, it is the insistence of the State that they would be governed by the newly defined Contributory Pension Scheme. So far as earlier pension scheme is concerned, the contribution of the employees is paid along with the interest upon their retirement plus pension every month other retiral benefits plus family pension, after the death of the employee concerned to the family member also would be available as provided under the old pension scheme. Thus, those of them who were appointed before 2009, would be getting the pension, whereas the present petitioners would be deprived of that although their GPF Accounts were continued while they continued ad hoc in service.

51. This Court is fully conscious of the fact that the Division Bench in the decision in the case of K.D. Vohra (supra) had denied the revisionist therein the regularisation as well as Page 89 of 104 HC-NIC Page 89 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT other benefits, which decision remained confirmed upto the Apex Court; and yet, in absence of any consistent policy on the part of the State Government, which could have been made applicable in the case of those who are similarly situated persons, that the present situation has arisen. As narrated hereinabove, none of the petitioners, who had been later on in the year 2009 absorbed as Lecturer in a nonGovernment GrantinAid college, has been offered absorption in those institutes in the year 2004. In the appointment letter of those, who had been earlier absorbed in the years 2004 and 2007 also, no clarity is made with regard to their service condition. Likewise, in the case of the present petitioners also, except appointing them as Lecturers in non Government grantinaid colleges, there are no other details to govern their services.

52. Having said so, it needs to be added that this Court is not ready to accept higher benefits presently available to the appointees of the year 2004, as a mere fortuitous circumstances because Page 90 of 104 HC-NIC Page 90 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT there was no such offer to all those petitioners. Undoubtedly, the petitioners were also trying to be absorbed in the Government colleges, which any persons in their position would try to. There was nothing in their hand, had the Government decided to offer all of them the services in non Government GrantinAid colleges, they could not have any choice at all. Therefore, to say that they did not volunteer when the transfer camps were organised, is not an acceptable proposition.

53. As is known to one and all, when one is a Government employee and in job, he is always governed by the policies framed by the State Government and all the Government employees would have hardly any say in such policies being framed. The predicament of the petitioners was all the more very vulnerable because of their having lost in the Letters Patent Appeal and so also, before the Apex Court and, therefore, any response on their part would have cost them nothing more than their livelihood. Page 91 of 104 HC-NIC Page 91 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT

54. This Court could have no sympathy for those who are the backdoor entrants and in the case of the present petitioners, their appointment had been by virtue of the parameters set by local colleges and that entire gamut of facts had been gone into in the decision in the case of K.D. Vohra (supra) and this Court would not delve into that aspect. Suffice it to note that amongst the class of employees, which has been termed by the Division Bench of this Court as Special Class for having spent more than 10 years, in the year 2002, when the decision was rendered and now practically after 2½ decades in the year 2017, to leave them at their own fate without offering any consistent policy for one and all would surely result into this Court concluding such an act as being discriminatory.

55. The State was permitted to gradually absorb if there were nonavailability of seats in the nonGovernment GrantinAid colleges, however, it is impermissible for the State not to spell out clear policy governing the service condition of Page 92 of 104 HC-NIC Page 92 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT this class for which the Court had recommended a policy of absorption. Had it been the stand of the State that no such absorption was permissible, it could have challenged the same before the Apex Court, but it did not. It was, in fact, given to understand by the Division Bench that the State machinery needed to work out a lasting solution. In the year 2004 itself, by absorbing not less than 85 lecturers in the non Government GrantinAid colleges, the State has accepted the direction of the Division Bench. This Court although appreciates this gesture on the part of the State and yet it needs to be stated that possibly with an apprehension to give rise to more litigations or with a view to sweep under the carpet the possible challenge, no clear policy was framed for all those who were similarly situated. Had there been a clear policy in this regard, the chronology of events would not have given rise to the present litigation by those who had joined as regular lecturers in grantinaid colleges, comparatively later in point of time. Since those who have been absorbed Page 93 of 104 HC-NIC Page 93 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT as regular lecturers in the year 2004 are enjoying far better pay and benefits than those who are undisputedly seniors and similarly situated otherwise these petitions have resulted.

56. Such discrimination is impermissible, particularly, when all of them are discharging identical functions and duties and have travelled their professional journey under the similar set of facts and circumstances.

57. The decision of the Apex Court rendered in the case of State of Punjab v. Jagjit Singh, reported in AIR 2016 SC 5176, speaks of principle of "equal pay for equal work". The Supreme Court has delineated parameters laid down in all the earlier decisions. It has also stated as to in what situation this could not be invoked as given in paragraph 42 of the said decision. 57.1 It would be apt to reproduce the relevant observations of the said decision in the case of Jagjit Singh (supra), which read as under

:

Page 94 of 104

HC-NIC Page 94 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT "42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of 'equal pay for equal work'.

The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher payscale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of 'equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of 'equal pay for equal work'. Our consideration, has led us to the following deductions:

(i) The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see- the Orissa University of Agriculture & Technology case, Union Territory Administration, Chandigarh v. Manju Mathur, the Steel Authority of India Limited case, and the National Aluminum Company Limited case).

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(ii) The mere fact that the subject post occupied by the claimant, is in a "different department" visavis the reference post, does not have any bearing on the determination of a claim, under the principle of 'equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see-the Randhir Singh case, and the D.S. Nakara case).

(iii) The principle of 'equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case, the Mewa Ram Kanojia case, the Grih Kalyan Kendra Workers' Union case6 and the S.C. Chandra case).

(iv) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of 'equal pay for equal work' (see - the Randhir Singh case, State of Haryana v. Haryana Civil Secretariat Personal Staff Association, and the Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.

(v) In determining equality of functions and responsibilities, under the principle Page 96 of 104 HC-NIC Page 96 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT of 'equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of payscales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see-the Federation of All India Customs and Central Excise Stenographers (Recognized) case3 and the State Bank of India case8). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of 'equal pay for equal work' (see State of U.P. v. J.P. Chaurasia, and the Grih Kalyan Kendra Workers' Union case).

(vi) For placement in a regular payscale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay scale (see - the Orissa University of Agriculture & Technology case).

(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different payscales. Such as 'selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria (see State of U.P. v. J.P. Chaurasia4).

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(viii) If the qualifications for recruitment to the subject post visavis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case, and Government of W.B. v. Tarun K. Roy). In such a cause, the principle of 'equal pay for equal work', cannot be invoked.

(ix) The reference post, with which parity is claimed, under the principle of 'equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Payscales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey, and the Hukum Chand Gupta case).

(x) A comparison between the subject post and the reference post, under the principle of 'equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see Official Liquidator v. Dayanand).

(xi) Different payscales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one Page 98 of 104 HC-NIC Page 98 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of 'equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see - the State Bank of India case).

(xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different payscales. Herein also, the principle of 'equal pay for equal work' would not be applicable (see State of Haryana v. Haryana Civil Secretariat Personal Staff Association).

(xiii) The parity in pay, under the principle of 'equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay scale. The principle of 'equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (seeState of West Bengal v. West Bengal Minimum Wages Inspectors Association).

(xiv) For parity in payscales, under the principle of 'equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is nonteaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not Page 99 of 104 HC-NIC Page 99 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT be applicable (seeUnion Territory Administration, Chandigarh v. Manju Mathur).

(xv) There can be a valid classification in the matter of payscales, between employees even holding posts with the same nomenclature i.e.between those discharging duties at the headquarters, and others working at the institutional/suboffice level (see- the Hukum Chand Gupta case), when the duties are qualitatively dissimilar.

(xvi) The principle of 'equal pay for equal work' would not be applicable, where a differential higher payscale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see - the Hukum Chand Gupta case).

(xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of payscales, under the principle of 'equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of 'equal pay for equal work' would not apply (see - the S.C. Chandra case, and the National Aluminum Company Limited case)."

57.2 It could be noticed from the directions of the Apex Court in the said decision that the Page 100 of 104 HC-NIC Page 100 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT persons discharging identical duties cannot be treated differently in the matter of pay merely because they belong to different department of the Government. If there is no classification or rational classification, unequal scales of pay is impermissible. It is not a case of persons holding the same designation, but similar powers, duties and responsibilities. It is not in dispute that there is a question of determination of quality of functions and the responsibility. The Court also permitted the differentiation of pay scales for the post with difference in degree of responsibility, reliability and confidentiality and has held that the same would fall within the realm of valid classification, and pay differentiation in such eventually, would be legitimate and permissible.

58. In the opinion of this Court, difference, which is eloquent on record, is between the persons who are performing the selfsame functions, duties and responsibilities; and were appointed in the similar set of facts and Page 101 of 104 HC-NIC Page 101 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT circumstances and, therefore, the difference which is emerging sans legitimate foundation, deserves no sustenance.

58.1 Conscious of need to observe judicial propriety when coordinate Bench has delivered the judgment in case of one of the ad hoc lecturers, challenge in this group of petitions since is of nonobservance of constitutional mandates of 'equal pay for equal work', this Court has deemed it necessary to examine entire issue closely.

59. Petitioners have not challenged the order of the Commissioner of Higher Education which ended their services nor the first orders of their absorption. That should not preclude this Court to interfere as those are not their grievances, but their chief cause of dismay is nongrant of continuity as in case of their junior colleagues for the purpose of pay, pension and leave. Discrimination amongst similarly situated employees only on account of time difference in their absorption cannot be allowed to be Page 102 of 104 HC-NIC Page 102 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT countenanced for being impermissible under the law.

60. With the forgoing discussion, action on the part of the State authorities needs to be concluded as discriminatory, impermissible and contrary to the settled position of law and hence, warrants interference.

61. Resultantly, the present group of petitions succeeds and the same is, accordingly, allowed. The orders dated 12.12.2011 and 2.2.2012, Government Resolution dated 8.12.2009, Circular dated 1.11.2012 and letter dated 29.4.2015 impugned in the respective petition are quashed and set aside. The respondentauthority is directed to grant all the benefits to the petitioners at par with those lecturers who had been appointed on the selfsame post in the year 2004.

62. The benefits which would include pay that the petitioners have derived on the post of ad hoc Lecturers in the Government colleges, if have Page 103 of 104 HC-NIC Page 103 of 104 Created On Sat Jul 01 01:09:16 IST 2017 C/SCA/4263/2012 CAV JUDGMENT resulted into their getting more pay than those who are absorbed in the year 2004, as agreed to by the petitioners through their respective learned advocates on a specific query raised by this Court, shall be either refunded or adjusted towards difference of pay or other such benefits, which the present petitioners would be entitled to by way of present judgment on succeeding in this group of petitions.

63. Ms.Sangeeta Vishan, learned Assistant Government Pleader for respondent No.1 has requested to stay the operation of this order for eight (8) weeks. Requested is acceded to.

64. Disposed of accordingly. There shall be, however, no order as to costs.

Direct Service is permitted.

(MS SONIA GOKANI, J.) SUDHIR Page 104 of 104 HC-NIC Page 104 of 104 Created On Sat Jul 01 01:09:16 IST 2017

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