Gujarat High Court
Patel Ashokkumar Babulal vs State Of Gujarat And Ors. on 5 May, 1995
Equivalent citations: (1996)2GLR535
Author: J.M. Panchal
Bench: J.M. Panchal
JUDGMENT J.M. Panchal, J.
1. In all these petitions which are instituted under Art. 226 of the Constitution, common questions of facts and law arise for the consideration of the Court. The petitioners have been appointed as Lecturers on ad hoc basis and by way of stopgap arrangement in the subject of Applied Mechanics. Therefore, at the request of and with the consent of learned Counsels appearing in these petitions the petitions are being disposed of by this common judgment.
2. Each of the petitioners has prayed to issue as writ of mandamus or any other appropriate writ, order or direction restraining the respondents from terminating his services. The petitioner in each petition has also prayed to direct the respondents to regularise/confirm his services as Lecturer with all other consequential and incidental benefits. For recruitment to the post of Lecturer in Engineering/Technology/Humanities/Science (in different disciplines) in the Gujarat Educational Service Class-II (Collegiate Branch) for Government Polytechnics under the Directorate of Technical Education Gujarat State, the Governor of Gujarat in exercise of powers conferred by the proviso to Art. 309 of the Constitution of India has made Rules known as the Lecturer Class-II in Engineering/Technology/Humanities/Science (in different disciplines) in Government Polytechnic Recruitment Rules, 1992. As per Rule 2 of the said Rules, appointment of the post of Lecturer in different disciplines has to be made by direct selection. The recruitment to the post of Lecturer in different disciplines is within the purview of the Gujarat Public Service Commission ("G.P.S.C." for short). As and when the post are required to be filled in, the Government sends the necessary requisition to the G.P.S.C. and the G.P.S.C. recommends the names of duly selected candidates after following the selection procedure and having regard to the eligibility criteria as laid down in the Recruitment Rules of 1992.
3. It is the duty of the State Government to provide for the tuition and training to the students prosecuting studies in Government Polytechnics and Government Engineering Colleges. In view of the exigencies of the administration and looking to the pressure of the work as well as non-availability of the duly selected candidates, the State Government appointed petitioners as Lecturers on purely ad hoc basis by way of stop-gap arrangement. The details of appointment of the petitioners as Lecturers on purely ad hoc basis are as under :
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Sr. Spl. C.A. Name of the Petitioner Date of appointment No.
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1. 11266/94 Patel Ashokkumar Babulal 30-7-1991
2. 11270/94 Desai Mukesh B. 8-3-1991
3. 11320/94 Mahendrakumar L. 30-7-1990
4. 11349/94 Chandresh Hariprasad Bhatt 30-7-1991
5. 11284/94 Jayantibhai Madhavbhai Chaudhary 30-7-1991
6. 11493/94 Deepak M. Joshi 30-7-1991
7. 11610/94 Yogeshkumar Natvarlal Vyas 30-7-1990
8. 11520/94 Maheshkumar N. Prajapati 30-7-1990
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The orders appointing the petitioners as ad hoc Lecturers stipulated that the appointment of the petitioners was for a period of 11 months or till the availability of the candidates regularly selected by G.P.S.C. A copy of the appointment order dated July 30, 1991 appointing the petitioner of Spl. Civil Application No. 11266 of 1994 on ad hoc basis is produced by him at Annexure "A" to the petition. Similar such orders have been produced by other petitioners also but it is not necessary to refer to those orders in detail.
4. In order to appreciate the controversy, it would be advantageous to refer to certain facts which are almost admitted. The sanctioned strength of posts of Lecturers in the subject of Applied Mechanics was 72 in the year 1992. Out of the 72 in the year 1992. Out of the 72 sanctioned post, 31 Lecturers who were duly selected by the G.P.S.C. were recruited prior to 1992 and were discharging duties as such. Therefore, in the year 1992, the Government sent requisition to G.P.S.C. for recommending names of candidates for 41 posts. It is relevant to note that the Government requested the G.P.S.C. for recommend names of 25 candidates belonging to general category and names of 16 candidates belonging to reserved category. The G.P.S.C. was requested to recommend the names of duly selected 16 candidates belonging to reserved category because, as noted earlier, the total sanctioned strength was 72. Though the Government sent necessary requisition to the G.P.S.C. to recommend names of 25 persons belonging to general category and due to non-availability of duly selected candidates belonging to reserved category no recommendation has been made by it so far as candidates belonging to reserved category are concerned. It is also significant to note that by the time the recommendations were received from G.P.S.C., out of 31 Lecturers who were regularly selected prior to 1992, only 20 Lecturers were discharging duties as such. Thus, after necessary requisition was forwarded to the G.P.S.C., 11 more posts fell vacant. As noted earlier, the G.P.S.C. recommended names of 25 duly selected candidates belonging to general category for appointment. The Government, therefore, vide order dated September 6, 1994 appointed 25 candidates as Lecturers in the subject of Applied Mechanics. The G.P.S.C. also prepared a wait list of 14 duly selected candidates and sent the same to the Government.
5. The Petitioner have claimed that they are entitled to be continued as Lecturers on ad hoc basis because 16 duly selected candidates belonging to reserved category are not available. The petitioner have made a reference to the judgment dated August 8, 1994 rendered in Spl. Civil Application No. 10487 of 1993 (Coram : S.M. Soni, J.) and have asserted that the principle, namely, first come last go or last come first go will be applicable to case of Lecturers appointed on ad hoc basis. According to the petitioners, 23 post of Lecturers are vacant and still available so far as general category is concerned and 16 post are available so far as reserved category is concerned in the subject of Applied Mechanics. Under the circumstances, by filing petition, each petitioner has challenged the proposed action of terminating his services and claimed reliefs to which reference is made earlier.
6. Mr. R.P. Gupta, Dy. Secretary to the Government of Gujarat, Education Department, Sachivalaya, Gandhinagar, has filed affidavit-in-opposition controverting the averments made in the petitions. It is not necessary to refer to the said reply in detail at this stage. However, it is relevant to note that it is mentioned in the said reply that as on today 36 posts of lecturers in the subject of Applied Mechanics are available, and therefore, over and above the appointments of 25 duly selected candidates by the G.P.S.C., the Government is also going to operate the waiting list and out of that list 11 candidates will be appointed to the post of Lecturers so far as subject of Applied Mechanics is concerned.
7. The petitioner of Spl. Civil Application No. 11520 of 1994 has filed affidavit-in-rejoinder disputing the statements made in affidavit-in-reply of Mr. R.P. Gupta. The petitioner of Spl. Civil Application No. 11520 of 1994 has reiterated what is stated by him in the petition and has claimed that he is entitled to reliefs prayed for the petition. On behalf of the respondents, an affidavit-in-rejoinder has been filed by Mr. M.V. Naik, Under secretary, Education Department, Government of Gujarat, Sachivalaya, Gandhinagar. In the said affidavit, it is mentioned that even if the principle of last come first go is applied, none of the petitioners would be entitled to be continued on the post of Lecturers on ad hoc basis, and therefore, the petitions deserve to be rejected.
8. I have heard learned Advocates Mr. Y.N. Oza, Dr. Mukul Sinha, Mr. R.K. Mishra, Mr. H.J. Nanavati and Mr. A.S. Dave appearing for the petitioners and Mr. T.H. Sompura, learned assistant Government Pleader appearing for the respondents.
9. The submission that in view of the principle of the first come last go or last come first go necessary direction should be given to the respondents to continue the petitioners in service as ad hoc Lecturers cannot be accepted in the facts of the case. It is true that the ambit and reach of Arts. 14 and 15 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State Machine. Even an ad hoc appointment is an appointment to an office howsoever tenuous its character may be. Such ad hoc appointment authorises the appointee (1) to occupy the post, (2) to perform the functions and discharge the duties and (3) to draw emoluments attached to the post. The Government can make short term appointments, even against permanent posts to meet its immediate requirements pending regular appointments to a post. But having once made such appointments, the concerned authority cannot dispense with the services of such temporary ad hoc employees at any time even when the need for filling up the posts on a temporary ad hoc basis still persists. It is well-settled that if services of an ad hoc employee are terminated retaining his juniors in service then such termination of services would be in violation of Arts. 14 and 16 of the Constitution (See Jarnail Singh and Ors. v. State of Punjab, 1986 II CLR 192). Therefore, there is no doubt that principle of first come last go or last come first go will also be applicable in case of ad hoc employees. However, on examinations of the facts, I find that there is no scope for applying the said principle to the facts of the present case. As noted earlier, the strength of the sanctioned posts is 72. Before sending the requisition to G.P.S.C. in the year 1992, twenty posts were filled in by duly selected candidates and even today they are discharging duties as Lecturers. Thus, the figure of the vacant posts would be 52. From the averments made in the affidavit-in-reply as well as sur-rejoinder, it is evident that out of 72 sanctioned posts, 16 posts are reserved posts. Admittedly, the G.S.P.C. has not recommended names of 16 duly selected candidates belonging to reserved category because of non-availability of such candidates. Therefore, the question arises regarding the filling in of 36 posts which are available to general category. As pointed out in the reply affidavit, the G.P.S.C. has recommended names of 25 duly selected candidates after following the selection procedure and those 25 candidates have been already appointed on the post of Lecturers. Under the circumstances, the Government will have to fill in eleven posts of Lecturers in the subject to Applied Mechanics. The Government has received from the G.P.S.C. the waiting list in which names of 14 candidates are included. The Government would be entitled to operate the said list as per the recommendation made by the G.P.S.C. so far as 11 posts are concerned. It is necessary to clarify at this stage that in the affidavit-in-reply it is stated that the workload is of 39 posts. The workload of 39 posts would also include three posts which should be manned by candidates belonging to reserved category. If the Government is permitted to operate the waiting list as received from the G.P.S.C., it would amount to allowing the Government to fill in posts belonging to reserved category by candidates belonging to general category. The question whether Government can be permitted to fill in posts meant for reserved category by candidates belonging to general category is going to be examined later on. However, there is no manner of doubt that as on today 36 posts of Lecturers in the subject of Applied Mechanics are available so far as candidates belonging to general category are concerned. No more posts are available. It is well settled that employees who have been appointed on ad hoc basis on condition that their services would be continued till duly selected candidates are available by G.P.S.C. have no right to continue in service when duly selected candidates by G.P.S.C. are available to fill in the posts (See M.M. Bhagwandas v. State of Gujarat & Ors. 1990 II CLR 454). For all the 36 posts, candidates who have been duly selected by the G.P.S.C. are available, and therefore, there is no scope for applying principle of last come first go or first come last go. For the foregoing reasons, none of the petitioners is entitled to any of the reliefs on the footing that principle of last come first go is applicable, to the facts of the present case.
10. The submission that 16 reserved vacancies have not been duly filled in by regularly selected candidates belonging to reserved category, and therefore, necessary directions should be given to the respondents to continue the petitioners as Lecturers on ad hoc basis has no merits. The General Administration Department of the State of Gujarat has issued resolution dated July 5, 1989 providing that so far as direct selection is concerned, if the candidates belonging to Scheduled Castes and Scheduled Tribes are not available, those vacancies, in no circumstances should be filled by other candidates who do not belong to Scheduled Castes or Scheduled Tribes. The said resolution also provides as to which course should be adopted by the authorities if the candidates belonging to Scheduled Castes and Scheduled Tribes are not available. However, in this petition, the Court is not concerned with that aspect of the matter. The question which arises for the consideration of the Court is whether any direction can be given to the respondents to continue the petitioners as Lecturers on ad hoc basis on the posts which are meant for reserved category candidates ? Having regard to the policy decision of the Government as reflected in resolution dated July 5, 1989, in my view, such a direction cannot be given. The Court cannot while exercising writ jurisdiction under Art. 226 of the Constitution direct the Government to change its policy. It is well-settled that normally the Court cannot interfere with policy matters unless the policy is found to be arbitrary, illegal or contrary to the provisions of the Constitution. The policy which is adopted by the Government vide resolution dated July 5, 1989 is in consonance with the reservation policy as envisaged by the Constitution and more particularly Arts. 15(4) and 16(4) of the Constitution. There is nothing illegal in the policy of the Government which provides that the posts which are meant for candidates belonging to reserved category should not be filled by candidates belonging to general category. Under the circumstances, no case is made out for directing the respondents to continue the petitioners as Lecturers on ad hoc basis on those posts which are meant for reserved category candidates.
At this stage, it would be relevant to refer to a decision recorded by the Supreme Court in the case of State of Haryana & Ors. v. Mahabir Prasad Sharma and Ors. reported in 1994 Suppl. (2) SCC 348. In the said case, the State of Haryana had requisitioned Subordinate Selection Committee to recruit by direct selection 11 candidates to the post of Chief Inspectors. The vacancies were categorised as under :
6 posts for General candidates 2 posts for Scheduled Castes 1 posts for Backward Class 2 posts for Ex-Servicemen While selecting eleven candidates, the Subordinate Selection Committee kept four more candidates in the waiting list. The respondents stood at Sr. Nos. 8 to 11. They admittedly belonged to general category. The respondents moved a petition before the Punjab & Haryana High Court seeking appointment to the post of Chief Inspectors. The High Court while disposing of the matter held that keeping the candidates in the waiting list did not create any right in their favour in the post. The High Court clarified that if the State of Haryana for administrative exigencies wanted to fill up the post on ad hoc basis, then it was open to it to appoint the candidates enlisted in the waiting list in order of merit. In appeal by the State of Haryana & Others, the Supreme Court did not find any illegality in the observations of the High Court because no directions were given by the High Court to State of Haryana to appoint those candidates whose names figured in the waiting list. What was done by the High Court was merely to provide that in case the State of Haryana wanted to make appointments, it was open to it to appoint candidates whose name were included in the waiting list in order of merit. The Supreme Court clarified the position by stating that in the event of the appellants choosing to make appointments on ad hoc basis, the candidates in the waiting list though it lapsed must be considered for appointment de hors the Rules. However, the most important observations made by the Supreme Court are to be found in Paragraph (5) of the judgment which are as under :
"It is needless to mention that respondents being general candidates will be considered only against the quota reserved for general candidates."
The above quoted observations made by the Supreme Court make it clear beyond doubt that a candidate belonging to general category is not entitled to be considered for appointment to reserved post. In was contended that the principle laid down in the case of State of Haryana & Ors. (supra) would not be applicable to the facts of the present case because the petitioners are already in service on ad hoc basis and if necessary direction is not given to the respondents to continue the petitioners in service on ad hoc basis, the academic career of the students would be in jeopardy. In my view, the contention is devoid of any merits. The principle laid down by the Supreme Court is very clear and it is that a candidate belonging to general category can be considered only against the quota reserved for candidates belonging to general category. Even in this case of R.K. Sabharwal & Ors. v. State of Punjab & Ors. 1995 I CLR 719. Five-Judge Constitution Bench of the Supreme Court has held that when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserved points, it has to be taken that the posts shown at the reserved points are to be filled from amongst the members of reserved category and the candidates belonging to general category are not entitled to be considered for the reserved posts. Thus, it is well-settled that a candidate belonging to general category is not entitled to be considered for appointment to a reserved post. If a candidate belonging to a general category is permitted to be appointed on the post meant for a candidate belonging to reserved category, then, it would frustrate the whole reservation policy as envisaged by the Constitution. Under the circumstances, no direction can be given to the respondents to continue the petitioners in service on ad hoc basis till regularly selected reserved category candidates are available. It is also noted that some of the petitioners are included in the waiting list which is going to be operated by the respondents for filling in eleven posts so far as posts belonging to general category are concerned. No useful purpose would be served by permitting the respondents to terminate their services because they are going to be appointed on the post of Lecturers in the subject of Applied Mechanics once waiting list is operated. Under the circumstances, it is directed the services of the following petitioners shall not be terminated as their names are included in the waiting list forwarded by the G.P.S.C. :
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Sr. on Wait List Spl. C.A. Name of the Petitioner No. No.
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1. 11320/94 Patel Maheshkumar Lakhabhai
3. 11349/94 Bhatt Chandreshkumar Hariprasad
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Before parting with the judgment I place on record my uninhibited high appreciation of the valuable and painstaking assistance rendered by the learned Assistant Government Pleader Mr. T.H. Sompura and the learned Advocates appearing for the petitioner.
Rule is made absolute to the extent indicated hereinabove only in Spl. Civil Application Nos. 11320 of 1994 and 11349 of 1994 with no order as to costs.
Rule is discharged in rest of the petitions with no order as to costs and ad interim reliefs granted therein are hereby vacated.
At this stage, Mr. Y.N. Oza, learned Counsel appearing for the petitioner in Spl. Civil Application Nos. 11266 of 1994, 11270 of 1994 & 11320 of 1994 as well as Mr. H.J. Nanavati, learned Counsel appearing for the petitioner in Spl. Civil Application No. 11493 of 1994 request the Court to continue the ad interim relief granted earlier for a period of one week from today so as to enable the respective petitioners to approach the higher forum. Mr. T.H. Sompura, learned A.G.P. appearing for the respondents strongly opposes the prayer made on behalf of the petitioners. Having regard to the facts and circumstances of the case such a relief is not called for. Hence, the prayer to continue ad interim relief for a period of one week from today is refused.
11. Petition partly allowed.