Gujarat High Court
Patel Evelin Ranchhodbhai vs Gujarat Ayurved University, Jamnagar on 2 July, 1987
Equivalent citations: (1987)2GLR1299, (1988)ILLJ447GUJ
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT
1. In this Special Civil Application it is the prayer of the petitioner that the respondent Gujarat Ayurved University be directed by an appropriate writ, order or direction to treat her as a permanent employee as Midwife in the Hospital run by the University. The petitioner has further prayed that the respondent may be ordered to desist from discontinuing the petitioner from service as Midwife in the Hospital of the respondent.
2. It is the contention of the petitioner that the petitioner was first appointed by the order dated 27th June 1985 for a period of three months as a Midwife. Thereafter the respondent continued the petitioner on the said post by giving appointment orders for three months with some 1 or 2 days of artificial break. The last order which she has produced on record is at Annexure "G" which is dated 11th March 1987 which mentions that the petitioner was appointed purely on temporary basis for a period of three months as a Midwife against the post of Staff Nurse. The order further states that after the period of three months is over, the petitioner would be deemed to have been relieved. The petitioner has also annexed an advertisement issued by the respondent inviting applications from the candidates for the various posts wherein applications for the post of Midwife are also invited. One of the essential qualifications for the said post is that the candidate should not be more than 35 years.
3. The learned Advocate for the petitioner vehemently submitted that since 1985 petitioner is in service of the respondent except few days' artificial break and, therefore, the petitioner should be made permanent on the post on which she is working and, therefore, the respondent should be restrained from terminating the petitioner's services because the said termination would be in violation of Arts. 14 & 16 of the Constitution of India.
4. On behalf of the respondent, the Registrar of the Gujarat Ayurved University has filed affidavit-in-reply. It has been pointed out that the petitioner had applied for appointment to the post of Midwife. She was considered on 2nd March 1985 by a Selection Committee duly constituted under the provisions of Ordinance 54 of the Gujarat Ayurved University Act. The Selection Committee did not find the petitioner fit for the post. However, a few posts of Staff Nurse in the Institute of Post-graduate Teaching Research of Gujarat Ayurved University were lying vacant. The petitioner was offered ad hoc appointment for a period of three months on a purely temporary basis. It has been clarified that the petitioner was not selected by the Staff Selection Committee for appointment on regular post and that the appointment dated 27th June 1985 was not in pursuance of the selection by the Selection Committee. It has been further pointed out that as per recruitment rules for the post of Midwife, the qualifying age of the candidate is 35 years and that at the subsequent interview the petitioner was not qualified in view of the eligibility criteria as she was more than 35 years. But after taking sympathetic view towards the petitioner, she was offered the post on ad hoc basis and, therefore, there was no question of any arbitrariness on the part of the University. It has been pointed out that the petitioner has been appointed purely on ad hoc basis whenever there is vacancy.
5. In my view, once the petitioner is not selected by the Selection Committee of the respondent, the petitioner has no right to be appointed on the post merely on the ground that she was offered post for a few months on ad hoc basis. The appointment order produced with the petition clearly indicates that against the post of Staff Nurse the petitioner was appointed a Midwife purely on a temporary basis for a period of three months. For the post where there are recruitment Rules which provide that the recruitment to the post should be in accordance with the Rules by a Selection Committee by following proper procedure, it cannot be said that the person who is appointed purely on ad hoc basis without following the proper procedure would get a right to be appointed permanently on the said post. If this contention is accepted, the recruitment Rules would become nugatory or otiose and the Department can favour any person or appoint any person without following any procedure or recruitment Rules. This would lead to arbitrariness. If this contention is accepted, persons who are eligible and qualified for being appointed would be the sufferers as they would not get any chance of being considered for the appointment. The result would be that those persons who are not qualified would get appointment by the order of Court merely on the ground that they were appointed on ad hoc basis. It should not be forgotten that if there are vacancies in a particular cadre and the said vacancies are not filled in for some reasons as per the recruitment Rules, it is open to the Department to appoint persons on ad hoc basis for running the administration. This type of appointment would not confer any right on them. This, however, does not mean that the authorities can appoint persons on ad hoc basis for a number of years depriving them of their chance of being appointed to other post for which they are eligible and the authorities should not be permitted to exploit the employees by appointing them on ad hoc basis so that the appointees may not get any benefits available to permanent employees. But if the Department is following the recruitment Rules for making appointment to the particular post, it cannot be said that they are acting arbitrarily or in violation of Art. 14 or 16.
6. The learned Advocate for the petitioner relied on the judgment in Special Civil Application No. 711 of 1985 decided by R. C. Mankad, J. on 14th July 1985 (Ghanshyam M. Pandya v. State of Gujarat & Ors. 1985 GLH (U.J. 51 at page 41). In that case the petitioner was appointed as peon in 1980 and he continued to work upto 1984 with alleged breaks in service for 1 or 2 days. In that case the appointment orders were issued for 29 days. Inspite of the service of the notice to the respondents, the averments made in the petition were not controverted by the respondents. No return was filed on their behalf. The Court, therefore, held that it would appear that the respondents were giving the petitioner appointment for only 29 days thinking that he would not acquire any right over the post to which he was appointed. Therefore, the action of the respondents in giving appointment orders in the manner they have done appears to be arbitrary and that his services could not have been terminated by an oral order. The Court, therefore, held that the action of terminating his services was arbitrary and it has no basis in law. Hence the action was clearly violative of Arts. 14 and 16 of the Constitution. In my view, the ratio laid down in that case would have no bearing in this case. Once there are recruitment Rules which provide for appointment to a particular post by following the recruitment Rules, any appointment in violation of the said rules would be an illegal and arbitrary one. May be that till the vacancies are filled in by regular appointees, the Authority may appoint some persons on ad hoc basis, but those appointees would not get any right to be permanent servants.
7. Mr. Shah further relied upon the decision of the Supreme Court in the case of Rattanlal v. State of Haryana (1986-I-LLJ-23). In that case the question before the Supreme Court was whether it was open to the State Government to appoint teachers on an adhoc basis at the commencement of academic year and terminate their service before the commencement of the next summer vacation, or earlier, to appoint them again on an ad hoc basis at the commencement of next academic year and to terminate their services before the commencement of the succeeding summer vacation or earlier and to continue to do so year after year. In that case the Court held at pp. 24-25 that it is the duty of the State Government to take steps to appoint teachers in those vacancies in accordance with the rules as early as possible and that the State Government has failed to discharge its duty because it has been appointing teachers for quite some time on an ad hoc basis for short periods as stated above without any justifiable reason. The Court deprecated the policy of 'ad hocism' followed by the State Government for a long period. In my view, this decision on the contrary lays down that the Authority should fill in the post in accordance with the rules i.e. recruitment Rules. Even the direction given by the Supreme Court in paragraph 2 of the judgment clearly shows that the Supreme Court had directed the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on an ad hoc basis were working. Paragraph 2 reads as under :
"We, therefore, direct the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on ad hoc basis are now working and to allow all those teachers who are now holding these posts on ad hos basis to remain in those posts till the vacancies are duly filled up. The teachers who are now working on such ad hoc basis if they have the prescribed qualification may also apply for being appointed regularly in those posts. The State Government may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of the system of 'ad hoc' appointments. If any of the petitioners in these petitions has under any existing rule acquired the right to be treated as a regularly appointed teacher, his case shall be considered by the State Government and an appropriate order may be passed in his case."
It is true that normally ad hoc appointment should not be given for a long term. If an employee is continued on a particular post without being regularly appointed under the recruitment Rules, his chances of being appointed to other post for which he is eligible may be marred. Further, the State Government or other statutory authority should not be encouraged to appoint employees on ad hoc basis with a purpose that ad hoc employees do not get any right to the post or other benefits available to the permanent employees. But that does not mean that merely because a person is appointed on ad hoc basis for some period either on sympathetic view or because of the lethargy or delay on the part of the authority in not filling up the post on due dates, the employee gets a right to be appointed as a permanent employee. If ad hoc employees are made permanent by the orders of the Court merely on the ground that they have worked on the post for some period, then the entire recruitment Rules or procedure for a particular post could be easily bypassed by the persons having authority to appoint employees on ad hoc basis.
8. In this case, admittedly the petitioner was not selected by the Selection Committee constituted as per the recruitment Rules. On the next occasion also she was not eligible to be appointed. She was appointed on ad hoc basis as a Midwife against the post of Staff Nurse i.e. not on the post of Midwife. This would mean that at the relevant time there were no vacancies in the post of Midwife. Therefore, if the respondents are directed to consider the petitioner as a permanent employee, the result would be that the petitioner who was not selected under the recruitment Rules would get the benefit of being appointed to the post either without due qualification or without facing any competition from other eligible candidates. In my view, this cannot be permitted.
9. With regard to the contention of the learned Advocate for the petitioner that in view of Section 25F of the Industrial Disputes Act services of the petitioner cannot be terminated as she has completed 240 days on the post, it is the contention of the learned Advocate for the respondent that this contention is at premature stage because the services of the petitioner are not yet terminated. Still, however, Mr. Shelat, learned Advocate appearing on behalf of the respondent, says that before terminating the services of the petitioner the respondent would follow the procedure prescribed under Section 25F of the Industrial Disputes Act, if necessary.
10. In the result, there is no substance in the petition and it is rejected. Notice discharged.