Gujarat High Court
J.B vs State on 30 September, 2009
Author: M.R. Shah
Bench: M.R. Shah
SCA/8752/2008 48/ 48 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8752 of 2008 With SPECIAL CIVIL APPLICATION No. 9377 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ====================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== J.B. VYAS & 11 - Petitioner(s) Versus STATE OF GUJARAT & 74 - Respondent(s) ====================================== Appearance : MR KB PUJARA for Petitioner(s) : 1 - 12. MS KRINA CALLA ASST.GOVT.PLEADER for Respondent(s) : 1, MR JB PARDIWALA for Respondent(s) : 2, NOTICE SERVED for Respondent(s) : 3 - 6,8 - 15,17 - 35,38 - 42,44 - 51,53 - 56,58 - 66,68 - 75. MR PRAKASH K JANI for Respondent(s) : 3,5 - 6,8 - 15,17 - 20,22 - 35, 38,40 - 41, 44, 46, 48, 51, 54, 59, MR SHRIKAR H BHATT for Respondent(s) : 7,36 - 37. MR BHAVIK J PANDYA for Respondent(s) : 7,36 - 37. MR MEHUL SHARAD SHAH for Respondent(s) : 16, ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 19/07/2010 CAV JUDGMENT
As common question of facts and law arise in both these petitions, they are being disposed of by this common judgement and order.
In both these petitions the respective petitioners, who are serving as ad-hoc (Class-IV) employees with the District Court, Gandhinagar and who were appointed as ad-hoc till regularly selected peons (Class-IV) are appointed, have prayed for appropriate writ, order and/or order to quash and set aside the impugned order dtd.27/6/2008 (Annexure-L), by which, on availability of regularly selected class-IV employees, the services of the respective petitioners, who were appointed on purely ad-hoc basis till the list of regular appointment for Class-IV is approved, are ordered to be terminated w.e.f. 30/6/2008. It is also further prayed by the respective petitioners to quash and set aside the impugned select list at Annexure-K in so far as it excludes the petitioners therefrom. It is also further prayed for an appropriate writ, order and/or direction directing the respondents to forthwith re-cast selection list at Annexure-K by including the name of the petitioners in the selection list and to continue the petitioners on the post of peon which they are holding.
It appears that the process for preparing select list/waiting list for the post of Peon (Class-IV) was in progress and the advertisement was already published inviting applications for the post of Class-IV employees from the eligible candidates and the process to prepare select list was likely to take time and considering the communication of the High Court dtd.18/1/2005, the respective petitioners came to be appointed on purely ad-hoc basis till the list of regular appointment for the post of Class-IV is prepared and approved, on the terms and conditions mentioned in the Office Order dtd.19/1/2005 issued by the learned Principal District Judge, Gandhinagar. It is to be noted that the respective petitioners also applied for the post in question pursuant to the advertisement already issued earlier and they participated in the interviews also. That thereafter, after interviews a select list containing names of 73 candidates for recruitment for the post of Peon (Class-IV) on the establishment of District & Sessions Court, Gandhinagar came tobe prepared and published and thus, the regularly selected candidates were available for the post in question. It appears that out of 19 ad-hoc employees appointed earlier vide order dtd.19/1/2005, names of only few candidates were included in the aforesaid select list of 73 candidates as selected candidates and rest of them were not included in the list, as they were not selected, and as per the conditions of the earlier order of appointment dtd.19/1/2005, on availability of regularly selected candidates, the services of the petitioners were required to be terminated and therefore the learned Principal District Judge, Gandhinagar passed the impugned order dtd.27/6/2008 by terminating the services of the respective petitioners w.e.f. 30/6/2008. Hence, the respective petitioners, whose names do not figure in the select list / wait list of 73 candidates for the post of Peon (Class-IV) on the establishment of District Court, Gandhinagar, have preferred these Special Civil Applications for the aforesaid reliefs.
Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has submitted that the impugned order terminating the services of the petitioners is in breach of the principles of natural justice. It is submitted that before passing the impugned order no opportunity of being heard has been given to the respective petitioners. Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon ble Supreme Court in the case of State of Orissa Vs. Dr.(Miss) Binapani Dei and others, reported in AIR 1967 SC 1269. Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has further submitted that it is settled legal position since the judgement of the Hon ble Supreme Court in the aforesaid decision which has been consistently followed in catena of decisions by the Hon ble Supreme Court and this Court that any action on the part of the State Authority which has civil or evil consequences, can be taken only after following the principles of natural justice by giving reasonable opportunity of hearing to the affected persons. Therefore, it is submitted that as the impugned order is passed without giving an opportunity of being heard to the petitioners, the same is required to be quashed and set aside.
Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has further submitted that even in the appointment orders of the respective petitioners dtd.6.8.2004 and 18/19.1.2005 as well as in the impugned order of termination dtd.27/6/2008, the respondent No.2 has wrongly described the petitioners appointment to be purely on ad-hoc basis and till the list of regularly appointments for Class-IV employees is approved inasmuch as in the service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be stopgap or fortuitous or purely ad-hoc . Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon ble Supreme Court in the case of Rudra Kumar Sain Vs. Union of India, reported in AIR 2000 (8) SCC 25 = 2000 SC 2808.
Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has further submitted that the petitioners were/are possessing requisite qualification for the post of Peon and at the relevant time call letters were issued to the petitioners and their oral interviews were also conducted and thereafter they were appointed with the approval of the State Government and Gujarat High Court and they are working on the said post since their appointment and therefore considering the long period of service of the petitioners also their services cannot be terminated by treating them as ad-hoc.
Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has further submitted that even non-inclusion of the name of the petitioners in the select list at Annexure-K and/or excluding the name of the petitioners from the select list at Annexure-K is absolutely illegal and arbitrary. It is submitted that as such as a matter of fact no written or other test of the candidates in the select list at Annexure-K has been conducted by the respondents and only oral interviews were made the basis. It is further submitted that neither in the advertisement nor anywhere else, the respondents have referred any recruitment rules or the norms of selection of candidates for the post of Peon (Class-IV). It is further submitted that in that view of the matter, more particularly when in the subsequent interview also only oral interviews were conducted, the respondents ought to have appreciated that the petitioners have already faced the oral interviews in the year 2000 and they were duly selected and appointed on the post of Class-IV in the pay scale of Rs.2550-3200 with all other allowances and therefore, there is no reason not to include the names of the petitioners in the select list at Annexure-K. Therefore, it is submitted that the petitioners exclusion from the select list is suffering from complete non-application of mind, arbitrariness, discrimination and legal malafides inasmuch the names of the petitioners have been excluded with a view to accommodate other candidates in their place. Therefore, it is submitted that the impugned orders are required to be quashed and set aside.
Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has further submitted that though educational qualification prescribed for the post of Peon (Class-IV) as stated in the advertisement is that a candidate should have passed 4th Standard Examination and most of the petitioners are possessing higher qualification than required inasmuch as some of them are graduates, some of them are undergraduates and some of them have passed 10th Standard Examination and therefore, there is no justification for not including the name of the petitioners in the select list and/or for terminating them at this stage.
In the Rejoinder Affidavit the petitioners have challenged the Select List Annexure-K by submitting that the candidates whose names are included in the said list at Annexure-K, are because of favouritism inasmuch as either their relatives are working in the District Court, Gandhinagar or in the High Court and therefore the same deserves to be quashed and set aside.
Mr.K.B. Pujara, learned advocate appearing on behalf of the petitioners has further submitted that even the preparation of the select list of 73 candidates at the relevant time deserves to be quashed and set side inasmuch as at the relevant time there were only 39 vacant posts of Class-IV and select list which has been prepared is of 73 candidates. It is submitted that the rest of the candidates, whose names are included in the select list at Annexure-K above Sr.No.39, can not claim appointment of such a select list can not be source for the vacancies which have arisen subsequently. It is submitted that the select list of 73 has been prepared with malafide intention to accommodate those candidates on the posts which had fallen vacant subsequently, which is not permissible.
In affidavit in rejoinder, the petitioners for the first time have come out with the case that the selection list of 73 candidates as per the say of the petitioners is liable to be quashed and set aside as it is vitiated by nepotism, favouritism, malafides, arbitrariness, extraneous consideration and violative of Articles 14, 16 and 19 of the Constitution of India. It is submitted that the fact that it is tainted and vitiated by nepotism and favouritism is clearly born out from the relationship and acquaintance of most of the said candidates with the officers / employees already serving on the establishment of the District Courts and even of the Hon'ble High Court.
Mr.Pujara, learned advocate appearing on behalf of the petitioners has heavily relied upon the statement at Annexure-P to the petition. It is submitted that but for such relationship and the connections of the said candidates they could not have been selected and the present petitioners could not have been excluded from the select list when admittedly the said select list has been made only on the basis of oral interview alone. By making above submissions and relying upon the above decisions, it is requested to allow these Special Civil Applications.
Both these petitions are opposed by Mr.J.B. Pardiwala, learned counsel appearing on behalf of the respondents (except private respondents). It is submitted that the appointment order dtd.19/1/2005 of the respective petitioners makes it very explicitly clear that each of the petitioners were appointed purely on temporary and ad-hoc basis. It is submitted that it was made very explicitly clear to the petitioners that as there was no select list of peons on the establishment of District Court, Gandhinagar and as the regular recruitment process which was under way was likely to take time, need was felt to appoint petitioners as peons on ad-hoc basis. It is submitted that with this clear understanding, each of the petitioners had accepted the appointments and started working as peons in different courts at District Court, Gandhinagar. It is submitted that each of the petitioners had also given an undertaking in writing that they have accepted the appointments with a specific understanding that their appointment was absolutely temporary and on-ad-hoc basis and they can be relieved at any point of time. It is further submitted that it was also made clear to each of the petitioners that they can very well apply for the post pursuant to the advertisement which was already issued and that they can very well compete with the other candidates in the regular recruitment process. It is submitted that it is an admitted fact that each of the petitioners had applied pursuant to the advertisement and each of the petitioners have also appeared before the Interview Committee. It is submitted that on overall evaluation of the performance of each of the petitioners who appeared at the oral interview none of them could find place in the select list. It is submitted that the petitioners have no right of being appointed just because they were in the service on temporary and ad-hoc basis for some time.
Mr.Pardiwala, learned counsel appearing on behalf of the establishment has relied on the following decisions:-
AIR 2008 S.C. 3243 (para 5) (State of U.P. Vs. Ram Ahdar) AIR 1994 S.C. 1808 (paras 4, 7, 10 and 11) (Jammu & Kashmir Public Servic Commission Vs. Narindar Mohan) AIR 1971 S.C. 1110 (H.Lyngdoh Vs. Cromlyn Lyngdoh - Judge) 2009 (5) S.C.C. 65 (para 51 and 54) (State of Bihar Vs. Upendra Narayan Singh & Others) 2003(1) GLH 312 (para 17) (K.D. Vora & Others Vs. Kamleshbhai Gobrabhai Patel) 2008 (10) S.C.C. 1 (Official Liquidator Vs. Dayanand & Others)
16. It is further requested to consider the following factual background of the matter:-
16.1. The petitioners were all working as daily wagers on the establishment of District Courts, Ahmedabad (Rural) on a fixed salary of Rs.1350 per month as peons class-IV.
Prior to 2004, the Government issued notification declaring Gandhinagar as a Revenue District. After the formation of the new Revenue District, there was an establishment of District Courts at Gandhinagar. The petitioners who were all working as daily wagers on a fixed salary at different places within the jurisdiction of the District Court of Ahmedabad (Rural, thereafter started working at Gandhinagar. Initially even at Gandhinagar the petitioners were working as daily wagers on a fixed salary of Rs.1350. In the meantime it was noticed that there was no select list operating on the establishment of the District Court, Gandhinagar so far as Class-IV is concerned. Therefore, as a stopgap arrangement, till the regular recruitment process is finalised and a regular select list is prepared, it was decided that the appointments on the post of peons be made on ad-hoc basis till a select list is prepared on completion of regular recruitment process as per the rules. For this purpose, applications were invited and it appears that around 31 applications were received for being considered and appointed to the posts of peons on ad-hoc basis only by way of stopgap arrangement. In all, 19 persons were called for oral interview for the purpose of being considered for the post of peons on ad-hoc basis i.e. purely on temporary basis which includes 15 petitioners. The petitioners were given appointments purely on ad-hoc and temporary basis with a very distinct and clear understanding that their appointments were ad-hoc and purely temporary and that their services can be terminated at any point of time without any notice. In the appointment order dtd.19/1/2005 it was made very explicitly clear that 19 individuals named in the Office Order which includes all the petitioners have been appointed on purely temporary and ad-hoc basis till the regular recruitment process is finalised and a regular select list is prepared. Each of the petitioners were posted at different Courts at Gandhinagar (Annexure-B page 18).
16.2. Thereafter in the year 2006, the regular recruitment process which was undertaken as per the advertisement dtd.1/1/2005, published in daily news paper Sandesh was finalised. In all, 43,505 applications were received for the posts of peons Class-IV, out of it, 30,419 eligible candidates were called for an interview on different dates and were interviewed during the period from 20/8/2005 to 7/2/2006 by the Recruitment Advisory Committee. It deserves to be noted that in response to the advertisement which was published on 1/1/2005 in daily newspaper Sandesh each of the 15 petitioners applied for the same i.e. for being considered to be appointed to the post of peons on the permanent post on regular basis. Each of the petitioners participated in the process and prepared before the Recruitment Committee for the purpose of being interviewed. It was decided by the Recruitment Advisory Committee that marks be assigned to each of the candidates considering the following aspects:
Educational Qualification 10 marks Experience 05 marks Social Economic Conditions 15 marks Alertness, general outlook & potential quality to suit the job 15 marks Personality 05 marks 16.3. The Recruitment Advisory Committee decided to select and include the names of candidates in the Select List who obtains average 24 or more marks and ultimately prepared a Select List of 202 candidates.
On 31/3/2006, the then Principal District Judge, Gandhinagar addressed a letter to the Registrar General, High Court of Gujarat informing the High Court about the preparation of the select list of candidates for the post of peons class-IV. In the said letter the then Principal District Judge has tried to justify preparation of Select List containing 202 candidates. Along with the letter, the minutes of the meeting of the Recruitment Advisory Committee held on 28/3/2006 was also forwarded and this is how the entire list was forwarded to the High Court for tis approval. The letter dtd.31/3/2006 along with the Minutes forwarded to the High Court is marked as Mark- A .
16.4. The High Court ultimately curtailed list to 73 by applying roster points and the effect of roster points as well as on the basis of the marks obtained by each of the candidates. None of the 15 petitioners found place in the select list which was prepared by the District Court, Gandhinagar and finally approved by the High Court. It is this non-inclusion of the petitioners gave rise to the two petitions captioned above It is further submitted by Mr.Pardiwala, learned counsel appearing on behalf of the respondent establishment that even at the time when the respective petitioners were appointed as daily wager, applications from the other eligible candidates were not invited giving advertisement in the local news paper and/or from the employment exchange and therefore, as such there was no competition at all between the petitioners and other eligible candidates (may be more meritorious).
Now, so far as the contention on behalf of the petitioners with respect to only viva test, it is submitted by Mr.Pardiwala, learned counsel appearing on behalf of the establishment that the appointments was for the post of Peon (Class-IV) and therefore, holding of the viva test only without there being any written test is justified. It is submitted that even at the time when the petitioners were initially appointed as daily wagers, no written test was held and at that time the petitioners never made any grievance. It is submitted that even otherwise once the petitioners appeared before the selection committee and no grievance was made by the respective petitioners at the relevant time with regard to holding of oral interview viva test only and having failed to get their names included in the select list, it is not open for the petitioners now to make a grievance. In support of the above submission, he has relied upon the following decisions of the Hon ble Supreme Court :-
1) (2008) 4 SCC 619 (Sadananda Halo and others Vs. Momtaz Ali Sheikh and others).
2) (2009) 3 SCC 227 (Amlan Jyoti Borooah Vs. State of Assam and others).
19. Mr.Pardiwala, learned advocate appearing on behalf of the respondent establishment as well as High Court Registry has submitted that at the relevant time when the advertisement was given there are only 39 posts vacant and when a specific question was asked to Mr.Pardiwala, learned advocate that whether the select list at Annexure-K can be a source with respect to the post which had fallen vacant subsequently and/or after the post, Mr.Pardiwala, learned counsel has fairly conceded that the select list cannot be the source for the future vacancies.
Mr.Pardiwala, learned counsel appearing on behalf of the respondent establishment District Court has submitted that the appointments of the respective petitioners were purely on temporary and ad-hoc till the regularly selected candidates are available and therefore, on availability of the regularly selected candidates, no notice was required to be issued to the petitioners before terminating their services. By making above submissions and relying upon the above decisions Mr.Pardiwala, learned counsel has submitted that now regularly selected candidates are available and when the appointment of the respective were ad-hoc till the regularly selected candidates are available and when on availability of regular selected candidates, the impugned order has been passed terminating the services of the petitioners, the same is not required to be interfered with. Submitting accordingly it is requested to dismiss both the petitions.
Mr.Pardiwala, learned counsel appearing on behalf of the respondent establishment District Court, Gandhinagar and High Court of Gujarat has further submitted that interviews were conducted and appointments of peons class-IV have been made and select list at Annexure-K has been prepared as per the rules which governs the process of recruitment of candidates Class-IV posts. It is further submitted that the appointments on the post of peons class-IV have been made after following the directions issued by the High Court on its administrative side and allocated marks on different heads.
Mr.Pardiwala, learned counsel appearing on behalf of the respondent establishment District Court, Gandhinagar and High Court registry has submitted initially select list of 202 candidates was prepared by the then Principal District Judge, Gandhinagar, however, when the select list was finalised only for 39 posts of peons were vacant against 64 sanctioned posts and thereafter on the instruction of the High Court establishment, select list of 73 candidates at Annexure-K to the petition has been prepared.
Petitions are also opposed by Mr.P.K. Jani, Mr.Vikram K. Patel, Mr.Shikhar Bhatt and Mehul S. Shah, learned advocates appearing on behalf the respective private respondents.
While adopting the submissions made by Mr.Pardiwala, learned counsel appearing on behalf of the District Court, Gandhinagar and High Court, the learned advocates appearing on behalf of the respective private respondents have submitted that as in the petition there is no challenge to the inclusion of the names of the respective private respondents in the select list / waiting list at Annexure-K to the petition and as there are no averments in the petition with respect to nepotism and/or, favouritism etc., it is not open for the petitioners to make altogether a new case in the rejoinder affidavit to quash and set aside the entire select list on the allegation of nepotism and favouritism etc. It is further submitted by the learned advocates appearing on behalf of the respective private respondents that in both the Special Civil Applications, the respective petitioners challenged the select list at Annexure-K only qua non-inclusion of the name of the petitioners in the select list and the petitioners have not challenged the entire select list including the name of the private respondents in the select list. The learned advocates appearing on behalf of the respective private respondents have also denied the allegations of nepotism, favouritism, malafides etc. Therefore, it is requested not to consider the case on behalf of the private respondents as tried to be made out in the rejoinder affidavit by the petitioners , challenging the select list at Annexure-K on the round of nepotism and favouritism.
It is submitted by the learned advocates appearing on behalf of the private respondents that all the respective petitioners are selected and their names are put in the select list on merits and after all of them participated in the selection process and they appeared in the selection committee / interview committee and succeeded in the interviews.
It is submitted that having failed in the said selection it is not open for the petitioners now to challenge the process of selection. It is submitted that the concerned candidates whose name figured at Sr.Nos.1 to 39 are already working since long. Submitting accordingly, learned advocates appearing on behalf of the private respondents has requested to dismiss both the Special Civil Applications.
Heard the learned advocates appearing on behalf of the respective parties at length.
It is not in dispute that the respective petitioners were serving as daily wager Peon class-IV in the District Court, Gandhinagar. It appears that when the respective petitioners were appointed as daily wager, no selection procedure was followed; no applications were invited from the eligible candidates by giving advertisement in the news papers and/or calling the names from the employment exchange. That thereafter the process of preparing select list for filling upon the post of peons Class-IV was started and the applications were invited by giving advertisement in the local news paper as well as employment exchange and large number of applications were received. That it was felt that preparation of the select list was likely take some more time and in the meantime, there was need and therefore, the respective petitioners and others were appointed in the year 2005 on temporary and ad-hoc basis by order dtd.19/1/2005 with specific understanding and stipulation in the said order that they are appointed on temporary and on ad-hoc basis till the regularly selected candidates are available and appointed and as soon as the regularly selected peons
-class-IV employees are appointed, their services are liable to be terminated. It is the case on behalf of the petitioners that at the relevant time when the respective petitioners were appointed as ad-hoc, they were orally interviewed by the then Principal District Judge and all of them were issued call letters dtd.26/10/2004. The respective petitioners have heavily relied upon the aforesaid. However, it is to be noted that at the relevant time when the respective petitioners were issued call letters / interview letters, call letters / interview letters were issued only to those daily wagers who were already serving in the establishment as daily wagers and who were appointed without following any due procedure of selection. It appears that even when the petitioners were appointed as ad-hoc, no selection procedure has been followed inasmuch as applications from the eligible candidates by giving advertisement in local news papers was not given and the names from the employment exchange were not called for. There was no competition with the other eligible candidates. Therefore, merely because at the relevant time the petitioners were orally interviewed, the respective petitioners cannot claim any substantive right on the post in question. It is to be noted and as stated above the appointments of the respective petitioners vide order dtd.19/1/2005 was purely temporary and ad-hoc till the regular selected peons class-IV employees are available, as it was felt that it is likely to take further more time to prepare select list.
In the case of State of U.P. Vs. Ram Ahdar (supra), the Hon'ble Supreme Court observed that there is no principle of law that a person appointed in a temporary capacity has a right to continue till a regular selection. It is further observed that rather, legal position is than a reverse, i.e. that a temporary employee has no right to the post. It is further held that a temporary employee has no right to continue even for a day as of right, far from having a right to continue as a regular appointment.
In the case of Jammu & Kashmir Public Service Commission (supra), the High Court regularised the services of ad-hoc appointees who were continued for a long time and the the Hon'ble Supreme Court set aside the directions issued by the Division Bench of the High Court and confirmed those of the learned Single Judge and directed the State Government of the Jammu & Kashmir to notify the vacancies to the Public Service Commission. In para 11 of the said decision the Hon'ble Supreme Court has observed as under:-
11.
This Court in Dr. A. K. Jain v. Union of India, 1988 (1) SCR 335, gave directions under Art. 142 to regularise the services of the, ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142-power is confided only to this Court. The ratio in Dr. P. C. C. Rawani v. Union of India (1992) 1 SCC 331, is also not an authority under Art. 141. Therein the orders issued by this Court under Art. 32 of the Constitution to regularise the ad hoc appointments had become final. When contempt petition was filed for non-implementation, the Union bad come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Art, 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Art. 141. In Union of India v. Gian Prakash Singh, 1993 (5) JT (SC) 681 this Court by a Bench of three Judges considered the effect of the order in A. K. Jain's case and held that the doctors appointed on ad hoe basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H. C. Puttaswamy v. Hon'ble Chief Justice of Karnataka, AIR 1991 SC 295 :(1991 Lab IC 235), this Court while holding that the appointment to the posts of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Art. 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Art. 141. In State of Haryana v. Piara Singh, 1992 (4) SCC 118 at 152: (1992 AIR SCW 2315), this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoe or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoe or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to compete along with others for regular selection but if he is not selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected employee. The ad hoc appointment should not be a device to circumbent the rule of reservation. If a temporary or ad hoc employee continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class-III or Class-IV posts and the selection made was by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules.
In the case of State of Bihar Vs. Upendra Narayan Singh & Ors (supra), the Hon'ble Supreme Court has specifically observed that it is not open to the Court to give a regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right.
In the case of K.D. Vora (Supra) the Division Bench of this Court has observed that exigencies of service often requires 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 that no posts would be left for the regularly selected persons because two persons cannot hold the same post on a regular basis.
In the case of State of Haryana Vs. Piara Singh, reported in AIR 1992 S.C. 2130, the the Hon'ble Supreme Court has held that effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible and such a 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.
Considering the aforesaid decisions and facts of the case, more particularly when the appointments of the respective petitioners at the relevant time was ad-hoc, till regularly selected candidates are available and it was so specifically mentioned in their orders of appointment and now when the regularly selected candidates are available and the impugned orders are passed, as such it cannot be said that the action of the administration in terminating the services of the petitioners as ad-hoc employees, is in any way illegal, arbitrary and/or malafide. It is to be noted and as observed hereinabove, at the relevant time, initially the respective petitioners were appointed as daily wagers and thereafter as ad-hoc, no regular selection procedure, by giving advertisement in local news papers and giving opportunity to other eligible candidates was followed. Under the circumstances, merely oral interviews of the petitioners might have been conducted by the District Judge at the relevant time, the petitioners cannot claim appointment as a matter or right and/or subsequently cannot challenge their termination as ad-hoc on the ground that at the relevant time their oral interviews were conducted and now in the regular selection procedure also, only oral interviews were conducted. It is to be noted that at the relevant time other eligible candidates were not given opportunity to compete with the petitioners. Now, along with the other eligible candidates the case of the petitioners have been considered and petitioners and other candidates are found more meritorious than the petitioners and all of them who are appointed in regular selection they are ahead in the merit list.
It is also required to be noted that not only in the appointment order of the petitioner appointing them as ad-hoc it has been specifically mentioned that they are appointed as ad-hoc till the regularly selected candidates are available and on availability of regularly selected candidates their services are liable to be terminated, the respective petitioners have accepted the same and even they have given their undertaking at the relevant time accepting the aforesaid conditions and their conditional appointment. Therefore, now it is not permissible for the petitioners to challenge their termination as ad-hoc on availability of regularly selected candidates.
Now, so far as the contention on behalf of the petitioners that at the relevant time when the petitioners were appointed as ad-hoc, their oral interviews were conducted and at the time of regular selection also oral interviews of the candidates were conducted and except oral interview, no other test was conducted and therefore, it is sought to be contended that as in earlier appointing them as ad-hoc they were found eligible, there is no reason not to select the petitioners in the regular selection when the same procedure is adopted and therefore, it is prayed to quash and set aside the select list / merit list in so far as not selecting selecting the petitioners is concerned, the aforesaid has no substance at all. At the outset, it is required to be noted that all the petitioners who were ad-hoc, in fact, applied for the post in question when the advertisement was published for regular selection / recruitment for the post of Class-IV and all the petitioners participated and as they found less meritorious, their names figure in the merit list at below.
The Hon'ble Supreme Court in the case of Sadananda Halo (supra) has observed that unsuccessful candidate after having taken part in the interview process cannot turn back and assail the selection process. In another decision in the case of Amlan Jyoti Borooah (supra) again the Hon'ble Supreme Court has held that a candidate who has subjected himself to a faulty selection process cannot question the same latter on, on the ground of estopple and acquiescences. Even otherwise it is to be noted that at the relevant time when the respective petitioners were appointed as ad-hoc, as observed hereinabove, no regular selection process was followed to the extent that no public advertisement was published inviting applications from the other eligible candidates and cases of the persons like petitioners, who were already serving as daily wager came to be considered and therefor,e there was no occasion to consider the cases of other eligible candidates along with the petitioners. Now, subsequently, when the cases of the petitioners are considered along with the other eligible candidates, while conducting the regular selection procedure, the respective petitioners are found to be less meritorious. In other words, the other candidates are found more meritorious than the petitioners and they have found their place much higher in the select list/merit list and are appointed. Therefore, merely because the oral interview of the respective petitioners might have been taken at the relevant time and were appointed as ad-hoc, on that basis alone, the respective petitioners cannot claim appointment in a subsequent regular selection and cannot contend that there is no reason not to select them as in the regular selection in which also only oral interviews are taken. The question is with respect to considering the cases of the respective petitioners along with the other eligible candidates and as stated hereinabove, while considering the cases of the respective petitioners along with the other eligible candidates while holding the regular selection process, they are found less meritorious than the other selected candidates who were not given opportunity at the relevant time to compete with the petitioners i.e. at the time when the petitioners were appointed as ad-hoc.
Now, so far as the contention on behalf of the petitioners that in the selection process only oral interviews are conducted and no other test was conducted and therefore, it gives chance to nepotism and favouritism is concerned, it is to be noted that the recruitment / appointment for the post of Class IV in sub-ordinate courts in th State is governed by the rules framed and procedure prescribed by the High Court on its administrative side and separate marks are allotted on the educational qualification, experience, social economic condition, alertness, general outlook & potential quality to suit the job and personality. Thus, while preparing the select list/merit list in question the rules framed and procedure prescribed and instructions given by the High Court is followed by the District Court, Gandhinagar. Even otherwise, as stated above, it is not open for the petitioners now to challenge the selection process once having participated and failed to get the appointment.
Now, the contention on behalf of the petitioners, relying upon the decision of the Hon'ble Supreme Court in the case of Rudra Kumar Sain and others Vs. Union of India and others, reported in AIR 2000 S.C. 2808, that at the relevant time on the post on which the petitioners were appointed as ad-hoc could not have been treated as ad-hoc, as the respective petitioners were continued in service for fairly long time, is concerned, at the outset, it is required to be noted that the aforesaid decision would not be of any assistance to the petitioners, as admittedly at the relevant time regular recruitment process was already commenced but it was likely to take some more time and in the meantime there was a need and therefore, the respective petitioners were appointed as ad-hoc till the regularly selected candidates are available and the respective petitioners accepted their conditional appointments as ad-hoc and also gave their undertakings that as and when the regularly selected candidates are available, they will have to go, and therefore, it is not open for the petitioners now to contend that at the relevant time, the post on which the respective petitioners were appointed could not have been treated as ad-hoc. Even otherwise, as held by the Hon'ble Supreme Court and this Court in catena of decisions mere long continuation of an employee as an ad-hoc does not confer any right in his favour to continue and/or pray for regularisation.
Now, so far as the prayer of the petitioners to quash and set aside the entire selection list alleging inter-alia that the candidates who are selected in the select list and who are appointed are either relatives of the employees working in the District Court, Gandhinagar and/or High Court and therefore, the select list deserves to be quashed and st aside on the ground of nepotism and favouritism is concerned, at the outset, it is required to be noted that first of all, as such there is no prayer in the petitions to quash and set aside the entire selection list on the aforesaid ground. Considering the prayer clause and the reliefs sought, it appears that the respective petitioners have prayed to quash and set aside the merit list in so far as not including the name of the petitioners in the select list and not on the aforesaid ground. Even there are no averments/allegations in the petitions with respect to nepotism and favouritism and the allegations of nepotism and favouritism have been made for the first time in the Affidavit-in-Rejoinder. Under the circumstances, the select list for the candidates who are already appointed and selected, is not required to be quashed and set aside on the aforesaid ground, in absence of any prayer and in absence of necessary averments and allegations in the petitions and the said question is kept open as there might be some substance in the allegations of the petitioners that some candidates who are selected and appointed, are related to the employees who are already working in the District Court and/or High Court. Even otherwise, it requires a detailed investigation and inquiry, which can be done only when an appropriate case is made out in the petition with necessary pleadings. Under the circumstances, the aforesaid question is kept open.
Now, so far as the contention on behalf of the petitioners that at the relevant time when the advertisement was published, there were vacancies of only 39 posts of Class-IV, against which the select list of 76 candidates is prepared, and therefore, the select list is to be confined to the post which were vacant at the time when the advertisement was published and such a select list/merit list cannot be the source for filling up the posts, which have fallen vacant subsequently either due to retirement or death of class-IV employees and/or on other eventuality is concerned. With the consent of the learned advocates appearing on behalf of the respective parties, this Court heard the learned advocates appearing on behalf of the respective parties with respect to above contention and submission. It is found and it is admitted by the learned advocate appearing on behalf of the administration that at the relevant time when the advertisement was published inviting applications and recruitment process was started, there were vacancies of only 39 posts of Class-IV in the District Court, Gandhinagar. It is to be noted that in the present case all 39 posts which were vacant at the relevant time are already filled in from the select list/merit list and candidates upto Sr.No.39 in the select list/merit list are already appointed. Therefore, the question is with respect to operating such a select list/merit list for the posts which have fallen vacantly subsequent i.e. subsequent to selection procedure / recruitment process started and subsequent to inviting applications for the post of Class-IV.
In the case of State of Bihar Vs. Madan Mohan Singh, reported in 1994 (Suppl) 3 SCC 308, identical question came to be considered by the Hon'ble Supreme Court wherein, against the vacant posts of 32, merit list of 129 candidates was prepared and the candidates selected and recommended were appointed on the said 32 posts and the question which was posed for consideration was whether the select list can be kept subsisting for fresh vacancies arising thereafter and to that the Hon'ble Supreme Court has held that the select list on said 32 vacancies would get exhausted with came to an end. The Hon'ble Supreme Court has further held that if the select list would not get subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have became eligible subsequent to the said advertisement and selection process.
Identical question also came to be considered by the Hon'ble Supreme Court in the case of Prem Singh and Ors. v. Haryana State Electricity Board and Ors., reported in (1996) 4 SCC 319, wherein the Hon'ble Supreme Court has considered another decision of the Hon'ble Supreme Court in the case of Gujarat State Dy. Executive Engineers Association v. State of Gujarat, reported in 1994 Supp (2) SCC 591. In the case of Prem Singh and Ors. (supra), in para 20 to 25, the Hon'ble Supreme Court has observed as under:-
20. In the case of Gujarat State Dy. Executive Engineers' Association vs. State cf Gujarat 1994 Supp (2) SCC 591 the following question arose for consideration:
"What is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary"; and lastly how long can it operate?" Though this question was examined in the context of Executive Engineers (Civil) Gujarat Service of Engineers Class I Recruitment Rules, 1979 the following observations made by this Court are of general application. Therein this Court has observed: (SCC Headnote pp.592-93) "How a waiting list should operate and what is its nature may be Governed by the rules. Usually it is linked with the selection or examination for which it is prepared.
For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the elected candidates do not join for one or the other reason or the next selection or examination is not held soon. Therefore, once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it.
21. The following observations made therein are also relevant:
(SCC pp.599-601, para 10) "Appointment in future vacancies from waiting list prepared by the Commission should be an exception rather than the rule. It has many ramifications. ...There was no contingency nor the State Government had taken any decision to fill the vacancies from the waiting list as it was not possible for it to hold the examination nor any emergent situation had arisen except the claim of some of the candidates from the waiting list that they should be given appointment for vacancies which arose between 1380 and 1983 and between 1983 and 1993. ...The direction of the High Court, therefore, to appoint the candidates from the waiting list in the Vacancies which, according to its calculation, arose between the years 1980 to 1983 and between 1983 to 1993 cannot be upheld."
However, on equitable considerations this Court did not set aside appointments of those candidates who were appointed in pursuance of the decision of the High Court but gave appropriate directions for securing ends of justice.
22. In State of Bihar Vs. Madan Mohan Singh (1994 Supp (3) SCC
308) this Court held that the advertisement and the whole selection process were meant only for 32 vacancies. The process came to an end as soon as these vacancies were filled up. If the same list has to be kept alive for the purpose of filling up of other vacancies, it would amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and the selection process.
23. In State of Bihar vs. Madan Mohan Singh and others 1994 Supp (3) SCC 308 this Court has in terms held that if the advertisement and the consequent election process were meant only to fill up certain number of vacancies then the meant list will hold good for the purpose of filling up those notified vacancies and no further. In that case 32 vacancies were advertised but a select list of 129 candidates was prepared. A question arose whether more candidates could be appointed on the basis of the said select list. This Court held that once the 32 vacancies were filled up the process of selection for those 32 vacancies got exhausted and came to an end. It was further held that if the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.
24. One of the questions which fell for consideration in Madan Lal and others vs. State of J & K 1995 (3) SCC 486 was whether preparation of meant list of 20 candidates was bad as the vacancies for which the advertisement was issued by the Commission were only 11 and the requisition that was sent by the Government for selection was also for those 11 vacancies. This Court held that the said action of the Commission by itself was not bad but at the time of giving actual appointments the meant list had to be so operated that only 11 vacancies were filled up. The reason given by this Court was that as the requisition was for 11 vacancies the consequent advertisement and recruitment could also be for 11 vacancies and no more. This Court further observed: (SCC pp.502-03) "It is easy to visualize that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way of advertisement, whether the advertisement mention filling up of 11 vacancies or not, the prospective candidates can easily find out from the Office of the Commission that the requisition for the proposes recruitment is for filling up 11 vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated, he may like to compete. Consequently the actual appointment to the posts have to be confined to the posts of recruitment to which requisition is sent by the Government. In such an eventuality, candidates excess of 11 who are lower in merit list of candidate can only be treated as wait-listed candidates in order of merit to fill only the 11 vacancies for which recruitment has been made, in the event of any high candidate not being available to fill the 11 vacancies for any reason. Once the 11 vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose". It may also be stated that while making the aforesaid observations this Court agreed with the contention that while sending a requisition for recruitment to posts the Government can keep in view not only actual vacancies than existing but Also anticipated vacancies.
25. From the above discussion of the case law it becomes clear that the election process by way of requisition and advertisement can by started for clear vacancies and also for anticipated vacancies but not for future vacancies If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extraodinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.
Under the circumstances, when 39 posts which were vacant at the relevant time when the selection process was started, which are already filled in by operating select list/merit list and nothing is on record that within one year any post had fallen vacant, due to death and/or retirement of class-IV employee, it is to be held that select list in question is exhausted and there cannot be any further appointment by operating such a select list/merit list for the vacancies which had fallen vacant subsequently. Considering the aforesaid decisions of the Hon'ble Supreme Court, in an appropriate case select list/merit list/waiting list can be operated in anticipated vacancies due to retirement and/or death of the class-IV employee and while considering the requisition anticipated post can be considered but those anticipated vacancies should be filled up in near future but not beyond maximum period of one year. In any case even such anticipated vacancies even at the death and/or retirement of an employee class-IV could not have been counted, if they are likely to become vacancies after a period of one year as even otherwise, select list/merit list/waiting list cannot be operated for a long time, otherwise it would take away the rights of the candidates who have become eligible subsequently.
Before parting with the present judgement and order this Court is of the opinion that there is a need to change the procedure and process of appointment in Class-IV employees in subordinate courts to avoid any allegations of nepotism and favouritism and to see that there is transparency in the employment in Class-IV in the subordinate courts. This Court also deprecates the practice of preparing a long select list/merit list/waiting list, as it is reported that waiting lists in subordinate courts are being operated for number of years, may be for 10 to 15 years and/or even 20 years. And to operate the said long waiting list for many years and candidate is appointed by operating such waiting list even at the age of 40 or 42 years and to fill up the posts from the select list/merit list/waiting list beyond the post advertised and/or the post vacant at the relevant time when the selection process was started, cannot be sustained. This Court is also of the opinion that even for the post of appointment for the Class-IV employees, there may be a provision for some test / written test and the appointment of Class-IV shall not be made solely on the basis of oral interview, otherwise it would lead to allegation of nepotism and favouritism.
In view of the above and for the reasons stated above, both the petitions fail and they deserve to be dismissed in so far as challenging the impugned order dtd.27/6/2008 (Annexure-L), terminating the services of the petitioners as ad-hoc on availability of regularly selected candidates and not including the name of the respective petitioners in the select list/merit list. However, as the learned advocates appearing on behalf of the respective parties are heard with their consent on the aspect of operating select list/waiting list beyond the candidate at Sr.No.39, for the reasons stated hereinabove, it is held that the select list in question is already exhausted and the respondent authorities are restrained from operating the select list/merit list/waiting list beyond the candidates at Sr.No.40 in the said list. Rule is discharged with above observations and directions. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik