Gujarat High Court
Arjunbhai J. Chauhan vs State Of Gujarat on 29 January, 1997
Equivalent citations: (1997)3GLR2461
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. The facts and grounds of challenge of the impugned order of termination of services of the petitioners are common in all these three Special Civil Applications, and as such, the same are being disposed of by this common order.
2. The facts of each case have to be taken separately which are as under: Special Civil Application No. 4890 of 1983:
The petitioner submitted an application in the office of the Gujarat Public Service Commission for appointment on the post of a driver. The petitioner, as per his case, was called for interview and after verifying his name duly registered with the employment exchange since 1976, he was called for driving test under the letter dated 29th December, 1977. On 2nd January, 1978, the driving test of the petitioner was stated to be taken. Under the order Annexure 'C on the record of this Special Civil Application dated 30th January, 1978 of the Secretary of the Commission, the petitioner was given appointment as driver on trial basis for a period of one month in the scale of 260-400 + D.A. and other allowances as per the Government Rules with effect from 5-1-1978. It is specifically mentioned in the order of the appointment that during his temporary appointment his services are likely to be terminated at any time without assigning any reason and without giving any notice. Under the order dated 31st January, 1978, the temporary appointment of the petitioner was extended upto 28th February, 1979 or till the recruitment rules for the post of driver are finalised and regular appointment is made in accordance with the recruitment rules, whichever is earlier. A copy of this order has been submitted by the petitioner as Annexure 'D' on the record. The petitioner has further stated that under the orders dated 15th June, 1982 and 10th January, 1983 his term of temporary appointment was extended. Except the aforesaid two orders, no order has been produced by the petitioner regarding the extension of his temporary service. As the appointment of the petitioner was irregular, the proposal had been sent by the Commission to the State Government to regularise his services. It appears from the document Annexure 'A' submitted by the petitioner on the record of this Special Civil Application that the Government has declined to regularise his appointment. The Commission under its order dated 15th September, 1983 terminated the services of the petitioner with effect from 15th October, 1983 after office hours. Hence this Special Civil Application filed by the petitioner before this Court.
3. This Special Civil Application has come up for admission before this Court on 5th October, 1983. On this date, notice was issued returnable on 12th October, 1983. On 12-10-1983, interim relief in terms of para No. 10(A) till 28th October 1983 was granted. Ultimately, on 13th December, 1983, Rule was issued and interim relief was ordered to be continued. In view of the interim relief granted by this Court, the order of termination of the services of the petitioner was not given effect to and it is not in dispute that the petitioner is working on the post of driver till this date.
Special Civil Application No. 4897 of 1983:
4. The petitioner was appointed as a peon in the office of the Commission on 4-6-1979. The petitioner earlier to that appointment was working on daily wages for about ten months. The appointment order of the petitioner is submitted as Annexure 'B' to the Special Civil Application. This appointment was purely on temporary basis for 30 days from 1-6-1979 to 30th June, 1979. Under the order dated 7-7-1979, the petitioner has been given the appointment on temporary basis as peon for the period from 1-7-1979 to 31st August, 1979 and copy of this order has been submitted by the petitioner as Annexure 'C. This appointment, as appears from this order, was given effect from 2-7-1979. This appointment has been made by the Secretary in exercise of the powers delegated under the Government Resolution, General Administration Department dated 9th August, 1975 and with the approval of the Chairman of the Commission. The petitioner has not produced any document on record to show that his term of appointment has been extended from 1st September, 1979. The document Annexure 'D' filed by the petitioner is dated 11th March, 1980 which gives out that with the approval of the Chairman, Gujarat Public Service Commission, the Secretary to the Commission is pleased to continue/appoint the persons mentioned therein on the post created under the office order referred therein for the period from 1-3-1980 to 20th February, 1981. As the appointment of the petitioner was irregular, the Commission had sent the proposals to the Government to regularise his appointment. Under the order Annexure 'A' dated 15th September, 1983 the services of the petitioner were terminated with effect from 15th October, 1983. It comes out that the Government has declined to regularise the appointment of the petitioner. The petitioner has challenged the order Annexure 'A' dated 15th September, 1983 before this Court.
5. In this case notice was issued on 5-10-1983, and interim relief in terms of para No. 9(E) was granted till 28-10-1983 on 12-10-1983 which has been ordered to be continued on 30th December, 1983 while issuing the Rule. There is no dispute that the petitioner is continuing in service under the interim order till date. Special Civil Application No. 4982 of 1983:
6. The petitioner, as per his own case, under the order Annexure 'B' of the Secretary of the Gujarat Public Service Commission has been given the appointment on temporary basis on the post of clerk in the pay scale of 260-400. The appointment of the petitioner was irregular, and as such, like other two petitioners in the aforesaid two Special Civil Applications, the proposals had been sent to the Government for regularising his services, but the Government has not accepted the proposals and under the order dated 15th September, 1983 his services were terminated with effect from 15th October, 1983 and hence this Special Civil Application.
7. In this case also, like in other two Special Civil Applications, the interim relief has been granted to the petitioner and he is continuing in the service till this date under the interim relief granted by this Court.
8. Heard learned Counsels, for the parties.
9. The learned Counsel for the petitioners filed a translation copy of the order of the termination of the services of the petitioner. The Counsel for the petitioners made the contentions with reference to each writ petition.
10. In first Special Civil Application, the contentions made are as under:
The name of the petitioner was already registered in the employment exchange and his appointment was made after due test of driving. There were no recruitment rules for the appointment to be made on the post of driver at the relevant time. No reasons are given for turning down the proposals of the Commission by the Government to regularise the services of the petitioner. The petitioner was not responsible for the so-called lapse committed by the Commission in making his appointment and the petitioner had left the job of Government service in the Home Department.
11. In the Special Civil Application No. 4897 of 1983 the petitioner's Counsel made the submissions as under:
The petitioner's appointment was not irregular as his name was duly registered in the employment exchange and he was within the prescribed age limit and he was continuously serving from 1978 without being told that his appointment was subject to regularisation. The Commission had appointed three peons who were initially working as labourer without any selection and they were now made regular by the Commission without making any reference to G.A.D. The names of such labourers are Shri Vaghela, Shri Solanki and Shri Makwana.
12. In the Special Civil Application No. 4982 of 1983, the Counsel for the petitioner made the submissions as under:
The petitioner was duly registered with the Employment Exchange and his appointment was made after calling for his name from the Employment Exchange as a Clerk. He was never informed from July, 1980 that his appointment as Clerk was irregular or subject to regularisation by the first respondent. The petitioner was given all service benefits by the Commission and the Commission had also recommended to Government to absorb him as such. That no reasons are conveyed in the impugned order Annexure 'A', as to on what basis the State Government had refused to accept the proposal of the Commission. There are 30 to 35 regular posts of Clerks in the office of the Commission. About 25 persons were then working-as daily wage clerks. The State Government has issued various resolutions of regularisation, first of its kind being dated 17-4-1970 and has also regularised number of Clerks in the past when the Government servants who were directly and irregularly appointed in the Secretariat, when the Government servants had gone on strike in 1978. The Commission itself has regularised the services of a Librarian who was irregularly recruited while the petitioner is not given the benefit of regularisation though his case is similarly situated.
13. The learned Counsel for the petitioners in the Special Civil Application No. 4982 of 1983 contended that the temporary appointment of the petitioner has been made under the order dated 28th July, 1980 after name of the petitioner has been called from the employment exchange. In para 4 of this Special Civil Application, it has been added by pen in the typed matter "after obtaining the name from the office of the employment exchange." The respondents have not admitted in the reply that the temporary appointment of the petitioner in this case has been made after his name has been called from the employment exchange. The order of appointment of the petitioner, in this case nowhere states that his appointment has been made after his name has been sponsored from the office of the employment exchange and after selection having been made. In absence of any recital to the aforesaid extent in the appointment order of the petitioner in this case and in view of the fact that the respondents have not admitted this position in the reply, it is difficult to believe the averments made by the petitioner by adding something to the original typed matter. ] have my own reservation whether the copy of the writ petition which has been sent to the respondent contained the correction done in para No. 4 of this Special Civil Application. Be that as it may. Even if I proceed with the assumption, presumption and acceptance that the appointment of the petitioner in this Special Civil Application, under the order Annexure 'B', has been made after his name has been sponsored by the office of the employment exchange on requisition sent by the Commission then too it is purely a temporary appointment. It is settled law that in the matter of temporary appointment, the provisions of Articles 14 and 16 have to be followed and the appointment should have been made by calling the names from the office of employment exchange or by inviting applications from the open market. There is no bar, on the contrary, it is obligatory that all the appointments irrespective of the character, ad hoc or temporary or permanent should be made after giving equal opportunity to all the eligible persons of their right of consideration for the same. If we go by the order of the appointment of the petitioner in this case, Annexure 'B', it is abundantly clear that it was purely a temporary appointment. It has been made with the specific condition therein that the temporary appointment of the petitioner is liable to be terminated at any time without any notice and reasons. Apart from this, the respondents have given out in the reply that the recruitment rules under Article 309 of Constitution of India were made for making of the recruitment to the post of clerks in the Commission. These Rules are called the Gujarat Public Service Commission Staff (Recruitment) Rules, 1970. The petitioner in the rejoinder has not disputed regarding the fact that the Rules under Article 309 of the Constitution of India were there at the relevant time for the recruitment to the post of clerk. Rule 2 of the aforesaid rules provides that the appointment to the post in the Commission, specified in the Schedule, to the said Rules shall be made in accordance with the mode of appointment prescribed in the Rules regulating recruitment to the corresponding categories of the post in the Secretariat departments of the Government. Under the Schedule, the reference of which has been made in Rule 2 of the Rules, 1970 includes the post of clerk. Accordingly, the post of clerk in the Commission has to be filled in by direct selection through competitive examination to be held by the Commission. Admittedly, in the present case, no competitive examination has been held and the appointment of the petitioner was purely ad hoc and temporary appointment. This appointment of the petitioner which has been made contrary to the Rules, 1970 is certainly an irregular appointment. The calling of the application from the office of the employment exchange is only the mode of calling the application and that is not the method of recruitment. Thereafter the competitive examination has to be conducted in accordance with the Rules, 1970 and only on the result thereof, the appointment could have been made. The appointment of the petitioner was an ad hoc and temporary appointment without following the Rules, 1970. Merely because his name had been sent by the office of the employment exchange will not culminate it in the regular appointment.
14. In the other two cases, there is no dispute that even the names of the petitioners have not been called from the office of the employment exchange.
15. In Special Civil Application No. 4890 of 1983, the petitioner has come up with a case that there were no recruitment rules for the post of driver in the Commission. Though the respondents have not come up with a case in the reply that the recruitment rules were framed for making the appointment on the post of driver, but even if the recruitment rules were not there then the appointment which has been made of the petitioner in this case cannot be said to be a regular appointment. In the absence of any recruitment rules, the Constitutional mandate as contained in Articles 14 and 16 thereof has to be complied with. It is a Constitutional right conferred to all the eligible candidates to have an equal opportunity of consideration in the public employment. The applications should have been invited from the open market which has admittedly been not done in this case. It is a case where only on the application of the petitioner he has been given the appointment and as it was a post of the driver, his driving test would have been taken, but this appointment cannot be said to be regular in any manner. In fact, this appointment is a back-door entry and an example of favouritism and nepotism. Somebody was there at the Commission at whose behest this appointment of the petitioner would have been made. The petitioner has come up with a case that he has come to know that some post of driver is lying vacant in the Commission and then he applied, leaves no doubt in the mind of the Court, whatsoever, that it is an appointment which the petitioner has arranged for himself with the connivance of some of the person in the Commission. These type of appointments are not only irregular, but are fraud on the provisions of Constitution as contained in Articles 14 & 16 thereof. The appointment order of the petitioner in this case was for a fixed term and subject to the further condition that it can be terminated at any time without any notice and giving any reasons. In the subsequent order of the extension, it has been made clear that his appointment is subject to the recruitment rules as and when the same are framed and on availability of the regular selected candidate. In view of the aforesaid conditions, there remains no doubt whatsoever in this case that it was a purely ad hoc temporary appointment and as such, it was liable to be terminated at any point of time without notice and assigning any reason.
16. The case of the petitioner in Special Civil Application No. 4897 of 1983 is also of the same nature as the case of the petitioner in Special Civil Application No. 4890 of 1983. In this case, the petitioner has been appointed on temporary basis as peon. That appointment was also for fixed term. His name was also not called from the office of the employment exchange nor any application has been invited from open market. From the order Annexure 'C dated 21st July, 1979 it comes out that due to the temporary increase of workload this appointment would have been made but nevertheless it was an appointment made purely on ad hoc and temporary basis. Moreover, the reference has been made to the Government Resolution dated 9th August, 1975 under which there appears to be a provision for delegation of powers to the Secretary and in exercise of this delegated power this temporary appointment of the petitioner has been made. The appointment of the petitioner in this case is also an irregular and back-door entry.
17. The appointments of all the three petitioners were irregular and as such, the Government has not committed any illegality to decline to regularise their appointments. One of the contentions made by the learned Counsel for the petitioners is that these persons are working for a long period, and as such, their appointments should have been regularised. 1 do not find any substance in this contention and reason is obvious. Merely by continuing on irregular appointment for years, the holder of the post does not acquire any right to hold the post. The learned Counsel for the petitioners is unable to give out any Rule framed under Article 309 of the Constitution or any resolution of the Government which provides for regularisation of the appointment of the category of the employees to which the petitioners belong. It is settled law that the temporary Government servant does not become permanent unless he acquires that capacity by force of any rule or is declared as permanent servant. Reference in this respect may have to the decision of the Supreme Court in the case of M.P. Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Ors. . In this case it has been held that while terminating the service of such temporary employee no opportunity of hearing is required to be given or notice is required to be given. In the present case, the respondents have given one month's notice to the petitioners while terminating their services though as per the terms of their initial appointment the same were liable to be terminated without any notice or any cause. The Supreme Court has in the aforesaid case further held that in the case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice. As stated earlier, in the case of temporary appointments of these three petitioners there is a specific term that their services may be terminable at any time and without notice. In the case of The Secretary, Ministry of Works and Housing, Government of India and Ors. v. Mohinder S. Jagdev , the Hon'ble Supreme Court has held that until the temporary services matures into a permanent, the temporary employee has no right to the post and at any point of time and before that right accrues, it is open to the employer to terminate the services in the terms of order of appointment. Here is a case, where the Commission has taken all due care and precaution and a request to regularise the services of the petitioner was made to the Government, but the Government has declined, and rightly so because the appointment of the petitioners were made in violation of Articles 14 and 16 of the Constitution of India and in the case of one of the petitioners further contrary to the rules framed. The Supreme Court has further held that in such a case, it is not necessary to follow the formalities contemplated by Article 311 of Constitution. In that case before the Supreme Court, the High Court has taken a view that the temporary appointees were entitled for being heard before their services were terminated, but that decision of the High Court has been reversed and the Court held that in the facts and circumstances of the case, High Court was not right in holding that the respondents therein, the temporary employees, were entitled for being heard before passing the said order of termination of their services and the order of termination of the services was bad in law on that ground.
18. Other contention raised by the Counsel for the petitioners is that about 30 to 35 regular posts of clerk in the office of Commission are lying vacant and as such, there was no justification not to regularise the appointment of one of the petitioners as clerk. 1 do not find any substance in this contention. Merely because the posts are lying vacant, the petitioner has not acquired right of regularisation of his services which were since inception irregular and contrary to the provisions of Articles 14 and 16 of the Constitution as well as in one of the case contrary to the Rules framed under Article 309 of the Constitution.
19. Another contention raised by the Counsel for the petitioner is that the petitioners have been given all service benefits by the Commission, and as such, the Government should have regularised their services. 1 fail to see any justification in this contention too of the Counsel for the petitioners. Naturally, when the petitioners were continuing in service and if the grade increments and some other benefits given then it will not culminate the temporary appointment of them in a permanent appointment. These benefits has nothing to do with the appointment, whether irregular or regular.
20. The Counsel for the petitioners further contended that in the case of peon, the Commission has regularised the services of three other labourers without making any reference of their cases to the G.A.D. This contention of the Counsel for the petitioners is also devoid of any substance. The petitioner is unable to give out sufficient factual foundation for this contention in the writ petition. Moreover, the averments made in para No. 8 have been verified to be true to the information and belief of the petitioners. On the basis of such a verification of the averments, it is difficult to place reliance thereon. The petitioner has further not produced the order under which the services of those persons have been regularised. Taking into consideration the totality of these facts, this contention also cannot be accepted.
21. The Counsel for the petitioners also, in the case of the clerk contended that the State Government has issued various resolutions for regularisation of the services of the irregular appointees, but the said reference is of no avail to the petitioner whatsoever as it relates to the year 1970 or 1974. The Counsel for the petitioners has failed to produced any document on the record in the form of resolution or rules which makes provision for regularisation of the services of the irregular appointees in the Commission, made in 80s. Similarly, the grievance of the petitioner that the Commission itself has regularised the services of the Librarian who was irregularly recruited is also devoid of any substance. There is no factual foundation for this argument.
22. Relying on the decision of the Supreme Court in the case of Santosh Yadav v. State of Haryana the Counsel for the petitioners contended that the State Government may be directed to regularise the services of the petitioners. The aforesaid decision on which the reliance is placed by the learned Counsel for the petitioners is of no help to the petitioners in this case.
23. In the case of State of Orissa and Anr. v. Dr. Pyari Mohan Mishra , it has been held that prolonged and continuous ad hoc service does not ripen into regular service. That was the case where the respondent therein was appointed as Director on ad hoc basis. He was directed to continue temporarily till further orders. Subsequently, he was reverted to the post of Joint Director without any inquiry. This reversion was held to be legal and justified by the Supreme Court. The case of ad hoc promotee may be compared with the case of temporary appointee. In the aforesaid case in connection with the plea of regularisation of the services of the respondent therein on the post of Director, the Supreme Court has held in Para No. 4 of the judgment as under:
Admittedly, there is no order communicated to the respondent appointing him in a subsantive capacity as Director. The only order passed in his favour was of July 22, 1972. That order clearly shows that he would continue temporarily until further orders in terms of the order of appointment made on ad hoc basis on August 12, 1971. In other words, mere prolonged continuous ad hoc service does not ripen into a regular service to claim permanent or substantive status. He would remain to be on ad hoc basis until further orders. Since the Government had taken policy decision to appoint as an I.A.S., he was rightly reverted to the post of Joint Director. Accordingly, we hold that his reversion is perfectly legal and valid. However, the stark facts remain that he continued in the post of Director and discharged his duties as Director from August 12, 1971. In these circumstances, as a mark of good gesture but not as a precedent, the appellants are directed to give him pensionary benefits computing his pay as if he voluntarily retired as a Director from December 16, 1979. All the proceedings now stand concluded. The T.A. stands dismissed. The appeal is dismissed accordingly No costs.
24. In the case of Bhanmati Tapubhai Muliya v. State of Gujarat the Division Bench of this Court held that the ad hoc appointment for fixed term, the appointee on expiry of the term has no right to continue on the post. The appointment automatically comes to an end and no order of termination is necessary.
25. In the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and Anr. the Supreme Court has considered the case of the employee who has been appointed after selection, but in the letter of the appointment it was stated that the appointment was only purely temporary. On the basis of the said appointment, the employee therein worked for about nine years and then her services were terminated. The employee therein sought the regularisation of her services and in that context the Hon'ble Supreme Court has observed that eligibility and continuous working for further long period should not be permitted to overreach the law. In that case, the employee was held to be not entitled to claim for regularisation even though she worked continuously for nine years.
26. Here is a case, where the appointments of the petitioners, as held earlier were irregular and violative of Articles 14 and 16 of Constitution of India. Merely, because the petitioners have worked for some years, in the present case may be for period ranging between three to four years, have not acquired any right of regularisation of their services. In the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and Anr. : (supra) were the employee therein has been appointed after selection on ad hoc basis and worked for nine years, but her claim for regularisation has not been accepted by the Supreme Court. This contention of the learned Counsel for the petitioners stand fully answered by this judgment of the Hon'ble Supreme Court.
27. The learned Counsel for the petitioners at the conclusion of the arguments contended that the petitioners are in service for a considerable long time. They have been protected by this Court by grant of interim relief for all these years. So there are two spell of services, one which the petitioners have rendered under the order of the respondent and another which has been rendered by the petitioners under the order of this Court. The Counsel for the petitioners contended that as the petitioners are in the service for last more than 15 to 16 years they should be ordered to be continued in the service. It is true that this Court has protected the petitioners by grant of interim relief, but the order of termination of the petitioners from the services is legal and justified as held by this Court in the earlier paras. So if the contention of the petitioners' Counsel is accepted then though the termination of the petitioners is legal and justified they will continue in the service as this Court has protected them by grant of interim relief. So if this prayer is accepted then the interim relief granted by this Court would amount to overreaching the main relief, which ultimately the petitioners are not entitled as their order of termination of the services is legal and justified. Not only this, the interim order which has been granted by this Court pending final hearing of these matters will have an effect of allowing the writ petition itself though the order of termination of the services is held to be legal and justified. That is not the purpose and object of interim relief. Interim relief means the relief which is operative till the matter is finally decided and it has to be merged in the final order.
28. The matter has to be considered from different angle. The acceptance of the request made by the Counsel for the petitioners will amount to abuse of the process of the Court. Reference in this respect may be made to the decision of the Hon'ble Supreme Court in the case of Shiv Shanker v. Board of Directors, U.P. State Road Transport Corporation reported in 1995 (Supp) (2) SCC 726.
29. In view of the facts and circumstances of the case as well as the ratio of the decision of the Hon'ble Supreme Court aforesaid, the prayer of the Counsel for the petitioners deserves no acceptance.
In the result, all these three Special Civil Applications fail and the same are dismissed. Rule discharged. Interim relief granted by this Court stands vacated.