Gujarat High Court
Acharya Madhavi Bhavin & 115 vs State Of Gujarat & on 7 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8152/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8152 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8154 of 2015
With
SPECIAL CIVIL APPLICATION NO. 7325 of 2015
With
SPECIAL CIVIL APPLICATION NO. 11717 of 2012
With
SPECIAL CIVIL APPLICATION NO. 3582 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO any order made thereunder ?
========================================================== ACHARYA MADHAVI BHAVIN & 115....Petitioner(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR. K.B. PUJARA WITH MR. NIKUL K. SONI, ADVOCATES for the respective Petitioners MR D.C. DAVE SR. COUNSEL WITH MR. P.A. JADEJA, ADVOCATE for the respective Petitioners MR. P.K. JANI, ADDITIONAL ADVOCATE GENERAL WITH MR. UTKARSH SHARMA, Page 1 of 72 HC-NIC Page 1 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT AGP for the Respondent(s) No. 1 - 2 RULE SERVED for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :07/09/2016 CAV COMMON JUDGMENT 1 Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 For the sake of convenience, the Special Civil Application No.8152 of 2015 is treated as the lead matter.
3 By this writ application under Article 226 of the Constitution of India, the writ applicants, serving as the ad hoc Lecturers in the Government Engineering Colleges and Government Diploma Engineering Polytechnics, have prayed for the following reliefs:
"16(a) to direct the respondents, their agents and servants to treat the petitioners, who are appointed as adhoc Lecturers in the Government Degree Engineering Colleges and Government Diploma Engineering Polytechnics after May2008, at par with the adhoc Lecturers appointed in the said colleges and polytechnics before May2008, and to grant them the Pay and Payscales and Annual increments and all other benefits at part with them, with effect from the dates of their initial appointments and to direct the respondents to give all the consequential benefits to the petitioners, including the monetary benefits and arrears together with interest at the rate of eighteen percent per annum;
(b) to direct the respondents to regularise the petitioners' services and to confer the benefit of permanency on them on the posts of Lecturers held by them in the Government Degree Engineering Colleges and Government Page 2 of 72 HC-NIC Page 2 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Diploma Engineering Polytechnics, and to give all the consequential benefits with effect from the date of filing of this petition;
(c) to direct the respondents to forthwith frame and implement the scheme to relax the age and to select the qualified and experienced adhoc Lecturers through a limited competitive examination, as suggested / directed by the Hon'ble Division Court in its order dtd. 2432011 passed in LPA No.2986/2010 (Coram : S.J. Mukhopadhaya, CJ and J.B. Pardiwala, J);
(d) to direct the respondents, their agents and servants not to terminate the services of the petitioners and not to alter their service conditions in any manner adverse to them until all the sanctioned vacancies of Lecturers in the Government Degree Engineering Colleges and Government Diploma Engineering Polytechnics are duly and fully filled up by the candidates selected and recommended by GPSC in accordance with the norms of PupilTeacher Ratio laid down by AICTE;
(e) to quash and set aside the term and condition no.2 of the G.R. dtd.
1082010 and G.R. dated 282011 whereby the benefits of revision of the payscales as per the said G.R.s are denied to the teachers appointed on fixed pay and contractual posts, and be further pleased to direct the respondents to grant the said benefits to the petitioners w.e.f. 112006 / w.e.f. From the date of the petitioners initial appointment as has been granted to all other Lecturers of Government Degree Engineering Colleges and Diploma Engineering Polytechnics.
(f) to direct the respondents to give uniform treatment to all the adhoc lecturers at par with the adhoc lecturers appointed prior to May2008 in the matter of issuance of monthly salaryslips, religious holidays, quarters, vacations, leaves, permission of higher studies of M.E. and other courses and in all other matters;
(g) to direct the respondents, their agents and servants to give all the benefits as per the circulars dated 15101992 and 2071999 as are being granted to the adhoc lecturers appointed prior to May2008.
(h) Pending the hearing and final disposal of this petition, be pleased to restrain the respondents from terminating / discharging the petitioners and/or from altering their service conditions in any manner adverse to them, until all the sanctioned vacancies of Lecturers in the Government Degree Engineering Colleges and Government Diploma Engineering Polytechnics are duly and fully filled up by the candidates selected and recommended by GPSC in accordance with the norms of PupilTeacher Ratio laid down by AICTE;
(i) Pending the hearing and final disposal of this petition, be pleased Page 3 of 72 HC-NIC Page 3 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT to direct the respondents to start paying the salaries in the pay band of Rs.1560039100, Grade Pay Rs.6000/ 5400/ to the petitioners as is being paid to the adhoc lecturers appointed prior to May 2008, subject to further orders that may be passed in the present petition;
(j) pending the hearing and final disposal of this petition, be pleased to direct the respondents, their agents and servants to give all the benefits as per the circulars dated 15101992 and 2071999 as are being granted to the adhoc lecturers appointed prior to May2008, subject to further orders that may be passed in the present petition;
(k) to grant any other appropriate and just relief/s."
4 The case of the writ applicants may be summarized as under:
4.1 The writ applicants are employed as the ad hoc Lecturers in the Government Engineering Colleges and Government Diploma Engineering Polytechnics.
4.2 The said institutions are governed by the All India Council for Technical Education Act, 1987 ("AICTE" for short). In accordance with the instructions of the AICTE, the post of Lecturer in the Government Engineering Colleges and Government Diploma Engineering Polytechnics has been redesignated as the Assistant Professor.
4.3 As the G.P.S.C. has not been able to undertake any regular recruitment for the post of Assistant Professor, the State Government has thought fit to adopt the policy to make ad hoc appointments on the vacant sanctioned posts of Lecturer in the Engineering Colleges and Polytechnics. Such appointments on ad hoc basis have been made over a period of almost twenty years.
4.3 All the ad hoc Lecturers, who came to be appointed prior to May 2008, are getting the regular pay scales and other benefits like annual increment, vacation leave, L.T.C., etc. Their earlier pay scale of Rs.2,200 Page 4 of 72 HC-NIC Page 4 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT
- 4,000/ was revised to Rs.8,000 - 13,500/ and it has been further revised to the pay band of Rs.15,60039,100/, Grade Pay of Rs.5,400 6,000/ with effect from 1st January 2006.
4.4 The present writ applicants, who have been appointed between May 2008 and February 2009, are being paid only the basic pay of Rs.8,000/ in the pay scale of Rs.8,000 - 275 - 13,500/ and are not being granted the annual increment, vacation leave, L.T.C., etc. 4.5 The State Government has created a class within the class of ad hoc Lecturers and the writ applicants are being given a discriminatory treatment although they are doing the same work as the other ad hoc Lecturers. The writ applicants are qualified for the posts held by them and have been appointed after interview by the Selection Committee.
4.6 The termination of some of the writ applicants herein and other ad hoc Lecturers led to a litigation before this Court by way of the Special Civil Application No.5797 of 2009 and the Letters Patent Appeal No.2986 of 2010 decided on 24th March 2011.
4.7 The Division Bench of this Court vide judgment and order dated 24th March 2011 held as under:
The Appeal has been preferred against the judgment and order dated 8th October 2009 passed by the learned Single Judge in Civil Application No.10773/2009 in Special Civil Application No.5797/2009. By the said order the judgment and order dated 30th June 2009 passed by the learned Single Judge in Special Civil Application No.5797/2009 and cognate matters were further modified. The State Government was permitted to fill up 908 posts of Lecturers in various Government Engineering Colleges and Polytechnic Institutions for which the department had already undertaken the process for regular appointment. The Court directed that appointment of 908 Lecturers of Engineering Colleges and Polytechnics, who were appointed on adhoc/contractual basis and whose services were extended Page 5 of 72 HC-NIC Page 5 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT earlier by way of one time measure as a special case, they should not be allowed to continue after 31st December 2010.
Pursuant to the said order, services of number of adhoc Lecturers have already been terminated, who have preferred writ petitions and pending consideration. The writ petitions wherein interim direction was issued, two of such writ petitions have been kept pending by the learned Single Judge. It is stated that the learned Single Judge is monitoring the cases to ensure that all adhoc Lecturers are removed to accommodate the regular appointees.
The case was heard in detail and it came to the notice of the Court that even after appointment of regular appointees, a large number of teaching posts are lying vacant in different Degree and Diploma Engineering Colleges. In absence of teaching staff, the students of Degree and Diploma Engineering Colleges will suffer.
For the said reasons, this Court, vide order dated 18th February 2011 passed in Civil Application - For Stay No.1987/2011, directed the respondent - State to provide the details of number of posts as was occupied by adhoc teachers as on 1st December 2010 (subject wise), number of regular vacancy as on 1st December 2010 (subject wise), including the posts occupied by adhoc teachers, number of persons appointed on regular vacancies out of the last panel since 1st December 2008 (subject wise), number of vacancies of different posts (subject wise) as on 18th February 2011, the time by which the G.P.S.C. will finalise the common merit list and to obtain instructions whether any scheme can be framed by State Government to accommodate the adhoc teachers against the remaining vacancies.
Pursuant to the Courts' order, an affidavit has been filed on behalf of the State from its Technical Education Department showing the details of vacancies, etc. It is informed that the State is facing difficulty in the appointment of Lecturers in Technical Colleges on account of recent amendment in the Recruitment Rules, 2009. As per the said Rules, for the posts of Lecturer in Engineering or Technology Faculty, for the first time a postgraduate degree with first class in the concerned branch of engineering or a bachelor's degree with first class in the concerned branch of engineering has been prescribed with valid GATE score. Further there is a requirement of score of 75 percentile.
As on date, the information of posts of Lecturers in Government Engineering Colleges and Government Polytechnics reflects total 3614 number of sanctioned posts against which 1114 persons have been Page 6 of 72 HC-NIC Page 6 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT regularly appointed. Altogether, 812 adhoc employees/appointees are working at present and 1688 posts of Lecturers are still lying vacant as on 18th February 2011.
Learned Government Pleader appearing on behalf of the State submitted that there is no option, but in view of the impugned order passed by the learned Single Judge, they have taken steps to remove the adhoc Lecturers. It is accepted that if they are removed, there is no such number of candidates at present in the merit list who can be appointed against the vacancies including the vacancies as may be caused due to termination of services of the adhoc Lecturers.
Mr.D.G.Shukla, learned counsel appearing on behalf of the Gujarat Public Service Commission submitted that for about 350 posts, interview has been taken and the list of candidates will be forwarded.
Total 2096 posts were advertised or the post advertised but could not be filled up because of nonavailability of eligible candidates.
From the stand taken by the parties and the record, it appears that out of 3614 sanctioned posts, steps were taken to fillup about 2200 posts. Still, there will be about 1400 number of sanctioned posts which will remain vacant. If the adhoc Lecturers are removed immediately in view of the order passed by the learned Single Judge, students of 16 Engineering Colleges (Degree level) and 26 Polytechnics (Diploma level) will suffer, even if total posts are filled up as per present advertisement.
In view of the aforesaid position and taking into consideration the interest of the students and the fact that the adhoc Lecturers are continuing since 10 to 20 years, the following interim order is passed for the present: i. The order dated 8th October 2009 passed by the learned Single Judge in Civil Application No.10773/2009 in Special Civil Application No.5797/2009 is stayed.
ii. The respondents are directed to fill up all posts which are already advertised, by regular appointment. We have noticed that a large number of appointments have already been made but further appointments are required to be made out of the recommendation as will be made by GPSC.
iii.On such appointment of regular Lecturers, if so required, the adhoc Lecturers may have to be shifted from particular Degree/Diploma Engineering College to accommodate the regular appointees. In such case, the authorities will accommodate adhoc Lecturers against some other posts for which no such advertisement has been issued, may be in some other equivalent Degree/Diploma Engineering College in any district.
iv. Till the posts are filled up by regular appointment, the adhoc Page 7 of 72 HC-NIC Page 7 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Lecturers be not disturbed.
v. Those adhoc Lecturers whose services have been terminated in view of the order passed by the learned Single Judge, if there is no allegation or departmental proceedings pending against them, they be accommodated on adhoc basis in one or other equivalent standard Degree/Diploma Engineering College in any of the district of the State, against the posts which are not yet been advertised. If there is no post to accommodate, in that case, their services may be terminated.
We make it clear that the adhoc Lecturers have no right to continue against any particular post. They will have to make a room as and when the posts will be filled up on regular basis.
Civil Application stands disposed of with the aforesaid observation and direction.
Post the Appeal along with Special Civil Application Nos.5797/2009 and 5774/2009 on 27th April 2011.
Pendency of this case shall not stand in the way of the State to frame any scheme to relax the age and to select the qualified and experienced adhoc Lecturers through any limited competitive examination.
Direct service is permitted."
4.8 The writ applicants and other ad hoc Lecturers have continued in service on the strength of various orders passed by the Director of Technical Education. However, the State Government has failed so far to frame any scheme to relax the age and to select the qualified and experienced ad hoc Lecturers like the writ applicants herein through the limited competitive examination, as suggested / directed by the Division Bench of this Court vide order dated 24th March 2011 referred to above.
4.9 The State Government should regularise the services of the writ applicants as hundreds of sanctioned vacant posts of Lecturers in the Degree Engineering Colleges and Diploma Engineering Polytechnics are vacant. Neither the G.P.S.C. has recommended sufficient number of candidates nor requisitions have been sent to the G.P.S.C. No Page 8 of 72 HC-NIC Page 8 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT advertisements have been issued so far for filling up the vacant sanctioned posts.
4.10 According to the information disclosed by the State Government under the Right to Information Act, 2005, the staff position of the Lecturers in the Government Engineering Colleges and Polytechnics, as on 1st September 2014, was as under:
Sanctioned posts Filled up
Deficit
Reg. Adhoc Fix pay Total
Govt. 2720 923 158 902 1983 737
Polytechnics
4.11 Over and above, 525 new vacancies of the Assistant Professor have been been sanctioned for the 16 Government Engineering Colleges and 347 new vacancies of the Lecturers have been sanctioned for the 26 Government Polytechnics by the circular dated 12th December 2013.
Neither the advertisement has been issued by the Government nor the G.P.S.C. so far has filled up the said vacancies.
4.12 The large number of vacancies of Lecturers in the Degree Engineering Colleges and Diploma Engineering Polytechnics have remained unfilled past more than 20 years. The writ applicants apprehend that they may have to retire from the service as ad hoc employees without any retiral benefits.
4.13 The writ applicants have prayed for regularisation in service since they all have crossed the upper age limit of 35 years and it is now virtually impossible for them to get selected through the G.P.S.C. on the regular basis.
Page 9 of 72HC-NIC Page 9 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT 5 Hence, the writ applications.
6 It also appears that some of the writ applicants have been appointed on contractual basis i.e. on the fixed pay of Rs.25,000/ so far as Diploma Colleges are concerned and Rs.30,000/ for the Degree Colleges.
7 The writ applicants have raised the following questions for the consideration of this Court:
(1) Whether the State Government is justified in creating a class within the class, without any rational basis, and give discriminatory treatment by paying regular pay and payscales in the payband of Rs.15600 - 39100, Grade Pay Rs.6000/ and all other benefits to one set of adhoc Lecturers appointed prior to May2008, and by paying only the basic pay of Rs.8000/ in the prerevised payscale of Rs.800027513500, without any annual increments, to another set of ad hoc lecturers (the petitioners herein) who are appointed after May2008, though all of them are
(a) doing the same work in the same colleges, (b) qualified for the posts, and (c) selected by the process of written test and interview by the selection committee?
(2) Is the State Government not duty bound to consider and implement the suggestion / direction issued by the Division Bench of this Court vide the order dated 24th March 2011 passed in the Letters Patent Appeal No.2986 of 2010 to frame a scheme to relax the age and to select the qualified and experienced ad hoc lecturers through a limited competitive examination?Page 10 of 72
HC-NIC Page 10 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT (3) In the peculiar facts and circumstances of the case, are the writ applicants not entitled to be regularised on the posts held by them?
● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS:
8 There are in all 16 Government Engineering Colleges (Degree)
and 30 Diploma Engineering Colleges (Polytechnics). The sanctioned strength so far as the post of Lecturer is concerned in the Degree Engineering Colleges is 1724. Out of the same, 632 posts have been filled up by the G.P.S.C., 92 are the ad hoc appointees and 273 are the contractual appointees. As on date, the vacant sanctioned posts in the Degree Engineering Colleges are 727. So far as the Polytechnics are concerned, there are in all 2818 sanctioned posts of the Lecturers. Out of the same, 1117 posts have been filed up through the G.P.S.C., 137 are the ad hoc appointees and 707 are the contractual appointees, 857 posts are still vacant.
9 The other details are as under:
Pay Scale and benefits:
2003 GPSC ad hoc before 28.5.2008 Contract
8000275135400 800027513500 No contract
+ DA + DA
+ HRA + HRA
+TA +TA
+MA +MA
+CLA +CLA
+PF Vacation LTC
Vacation LTC +Increment
+Increment NO PF
2008 GPSC ad hoc before ad hoc after Contractual
28.5.2008 28.5.2008 fix pay
8000275135400 8000275135400 8000275135400 Rs.25,000/
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+ DA + DA + DA for Diploma
+ HRA + HRA + HRA
+TA +TA +TA Rs.30,000/
+MA +MA +MA for Degree
+CLA +CLA +CLA
+PF Vacation LTC No increment
Vacation LTC +Increment No Vacation
+Increment NO PF No LTC
+ 6th Pay + No 6th Pay No PF
Commission Commission benefits + 6th Pay
benefits Commission benefits
The ad hoc employees appointed prior to 28th May 2008 are paid the salary as under:
"Old ad hoc (full Pay) GOVERNMENT ENGINEERING COLLEGE, BHUJ Employee Salary slip Month: March 2013 Department Mechanical Name : C.N. Desai Assistant Professor in Mech.
Scale: 15600 39100 (PB) PAN: AFCPD3774L
GPF/CPF: 0.00 Bank Account No.10663449381
MCA No.0 HEANO. 0
EARNINGS DEDUCTIONS
Pay 23080 Tax 2000
Gr. Pay 6000 Rent 0
Basic 29080 P Tax 200
0
DA 31116 GAS 0
TA 800 CPF 0
HRA 2908 GPF ADV. 0
MA 300 MCI 0
WA 0 TEST 0
GROSS 64204 FOOD 0
M&A 0
Page 12 of 72
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RECOVERY 0
DED 2200
NET PAY 62004
(Rupees Sixty Two Thousand Four only)"
The ad hoc employees appointed after 28th May 2008 are paid the salary as under:
"GOVERNMENT ENGINEERING COLLEGE, MODASA Pay slip for month : February 2015 Name : Smt. H.B. Acharya (ad hoc) GPF/CPF: Bank Account No.10663449381 Designation : Lecturer in Mech. Engg.
Bank Ac/ No.3066852007.Basic Pay 8000 Income tax (IT) 0 Special Tax 0 Rent for Build 0 C.A. 4000 PLI 0 Basic DA @ 50% 12000 Prof Tax 200 HRA 900 State Gov. Insu. 0 Medi Allow. 300 GPF 0 Travelling Allow 400 GPF Adv 0 Washing Allow 0 Festival Adv 0 Food Grain Adv 0 Vehicle Adv 0 HBA 0 Recovery of Pay 0 Gross Pay 39040 Deduction 200
Net Pay 38840 Month : February 2015 The contractual employee receives salary as under:
Bank A/c PAN No.
30967356353 ASWPG5203F
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Amount Rs.
'June2013
Contractual fix pay Amount Rs. 30000/
Less Professional Tax Rs. 200/
Less Income Tax Rs. 1000/
Less Recovery of Pay -
Net Amount paid Rs. 28800/
'July2013
Contractual fix pay Amount Rs. 30000/
Less Professional Tax Rs. 200/
Less Income Tax Rs. 1000/
Less Recovery of Pay -
Net Amount paid Rs. 28800/
August 2013
Contractual fix pay Amount Rs. 30000/
Less Professional Tax Rs. 200/
Less Income Tax Rs. 1000/
Less Recovery of Pay -
Net Amount paid Rs. 28800/
10 Mr. Pujara severely criticised the policy of the State Government
in making contractual appointments to the posts of Lecturer, more particularly, when there are vacant sanctioned posts. Mr. Pujara submitted that the Government continues to make ad hoc appointments of the Lecturers in the Government Engineering Colleges and Government Polytechnics because the Gujarat Public Service Commission (G.P.S.C.) has no time and adequate infrastructure to fill up hundreds of vacant sanctioned posts of the Lecturers. Mr. Pujara vehemently submitted that one can understand making ad hoc appointment, but the distinction drawn by the State Government between the ad hoc Lecturers before 28th May 2008 and after 28th May 2008 is absolutely unreasonable Page 14 of 72 HC-NIC Page 14 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT and arbitrary. The ad hoc Lecturers appointed prior to 28th May 2008 are granted all the benefits on par with the regularly appointed Lecturers like the benefit of Pay Commission, Annual Increment, other allowances, etc. So far as the ad hoc appointees appointed after 28th May 2008 are concerned, they are not being paid increment, etc. The ad hoc Lecturers appointed prior to 28th May 2008 are in the revised pay band of Rs.15,600 - 39,100/ and the Grade Pay of Rs.6,000 - 5,400/. The ad hoc Lecturers appointed after 28th May 2008 are stagnated at the basic pay of Rs.8,000/ in the pay scale of Rs.8,000 - 13,500/ since their initial appointments. Mr. Pujara submits that the said action on the part of the State Government is arbitrary, discriminatory and violative of Articles 14, 16, 19, 21 and 39(d) of the Constitution of India.
11 Mr. Pujara submits that both the sets of ad hoc employees are doing the same work. They possess the very same qualification. They have all been appointed after interview by the Selection Committee.
12 According to Mr. Pujara, the terms and conditions of the Government Resolution dated 10th August 2010 and Government Resolution dated 2nd August 2011 respectively as regards the benefit of revision of pay scales not applicable to the Teachers appointed on fixed pay and contractual post is violative of Articles 14, 16 and 39 of the Constitution of India.
13 Mr. Pujara submits that at a point of time, the State Government had passed orders terminating the services of the writ applicants herein and other ad hoc Lecturers although the large number of vacancies remained unfilled. The G.P.S.C. having failed to undertake the recruitment process, such vacant seats could not be filled up. The action of termination was made a subject matter of challenge by way of filing Page 15 of 72 HC-NIC Page 15 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT the Special Civil Application No.5797 of 2009. The order passed by the learned Single Judge was made a subject matter of challenge in the Letters Patent Appeal No.2986 of 2010. Mr. Pujara pointed out that the Division Bench (to which I was a party) vide order dated 24th March 2011 issued certain directions which have not been implemented till this date.
14 Mr. Pujara submitted that pursuant to the order passed by this Court referred to in para 4.7, the writ applicants and other ad hoc Lecturers have continued in service. The State Government has failed to frame any scheme till this date to relax the age and to select the qualified and experienced ad hoc Lecturers like the writ applicants herein through the limited competitive examination as suggested by the Division Bench of this Court. Mr. Pujara submitted that his clients have made out a strong case for regularisation in service.
15 Mr. Pujara pointed out that 525 new vacancies of the Assistant Professor have been sanctioned for the 16 Engineering Colleges and 347 new vacancies of the Lecturers have been sanctioned for the 26 Government Polytechnics vide circular dated 12th December 2013. No advertisement has been issued by the State Government or G.P.S.C. so far for filling up such vacancies.
16 Mr. D.C. Dave, the learned senior advocate assisted by Mr. P.A. Jadeja, the learned advocate appearing for the contractual appointees severely criticised the policy of the State Government. The learned counsel submitted that the Lecturers appointed under the Polytechnics are paid fixed remuneration of Rs.25,000/ per month, whereas the Lectures appointed on contract basis in the Degree Engineering Colleges are being paid fixed remuneration of Rs.30,000/ per month. The learned counsel submitted that when there are vacant sanctioned posts, Page 16 of 72 HC-NIC Page 16 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT even a contractual appointee is entitled to receive the minimum of the pay scale for the post of Lecturer. The learned counsel has placed reliance on the decision of the Supreme Court in the case of U.P. Land Development Corporation and another vs. Mohd. Khurseed Anwar and another [(2010) 7 SCC 739]. The Supreme Court, after an exhaustive discussion, took the view that if the sanctioned posts are lying vacant, then even a contractual appointee is entitled to the minimum of the pay scale. It has been submitted that the contractual Lecturers are on par with the ad hoc Lecturers in terms of qualification, method of appointment, work, experience, department, institutes, etc, except the structure of pay. The learned counsel submitted that the ad hoc Lecturers appointed prior to 28th May 2008 are getting the benefit of the regular pay scale with revision and the ad hoc Lecturers appointed after 28th May 2008 are in the pay scale of Rs.8,000 - 13,500/. It is submitted that there are only two kinds of appointment. The first is the permanent appointment and the second is the temporary appointment. The temporary appointments have various subcategory, such as casual appointee, daily wager, ad hoc appointee, contractual appointee, probationer, etc. There is hardly any distinction between the ad hoc employee and contractual employee.
17 Mr. Pujara as well as Mr. Dave, the learned counsel appearing for the writ applicants have placed strong reliance on a Division Bench decision of the Bombay High Court in the case of Sachin Ambadas Dawale vs. State of Maharashtra and another [Writ Petition No.2046 of 2010 decided on 19th October 2013]. In the writ petition before the Bombay High Court, the issue was by and large the same. The petitioners therein were Lecturers in the different types of the Government Polytechnics in the State of Maharashtra. The grievance of the petitioners in that case was that although they had been in the Page 17 of 72 HC-NIC Page 17 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT employment of the respondent for a period ranging from three years to ten years, yet they were not conferred permanency and the benefits of permanent appointment. The Division Bench partly allowed the writ petition directing the Government to regularise the services of the petitioners and confer permanency on those who had completed three years with technical breaks.
18 It is also pointed out that the Division Bench decision of the Bombay High Court was made a subject matter of challenge by the State of Maharashtra before the Supreme Court by filing the Special Leave to Appeal (C) No.39014 of 2013. A Division Bench of the Supreme Court, vide order dated 6th January 2015, dismissed the said Special Leave to Appeal having found no merit in the same.
19 In such circumstances referred to above, the learned counsel prayed that there being merit in the writ applications, they be allowed and the reliefs as prayed for be granted.
20 On the other hand, all the writ applications have been vehemently opposed by Mr. P.K. Jani, the learned Additional Advocate General appearing for the State of Gujarat. According to Mr. Jani, no case worth the name is made out for the grant of any of the reliefs prayed for in the writ applications. The main plank of submission on behalf of the State Government is that none of the writ applicants have undergone the regular recruitment process. They have not been appointed through the Gujarat Public Service Commission. They have been appointed by the Selection Committee. The Selection Committee is not constituted by the State Government. The Education Department of the Government permits the Commissioner of Technical Education to select the candidates and appoint them on the posts. The C.C.C. is also a must for Page 18 of 72 HC-NIC Page 18 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT seeking regular appointment on the post. According to Mr. Jani, once the mode of appointment changes, the doctrine of "Equal pay, for equal work" would not apply. It is submitted that none of the writ applicants being the regular appointees are governed by the Gujarat Civil Service Rules. Mr. Jani submitted that in view of the clear and unambiguous constitutional scheme, the Courts cannot countenance appointments to the public office which have been made against the constitutional scheme. In the backdrop of the constitutional philosophy, it would be improper for the Courts to give directions for regularisation of services of the person who is working either as daily wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution of India. He would submit that the Court may not frame or direct framing of a scheme for regularisation of temporary employees. He submits that the classification on the basis of mode of selection / recruitment for the purpose of wages is followed and in case of contractual employees, the salary would have to be paid in accordance with the terms and conditions contained in the letter of appointment. He would also submit that the doctrine of legitimate expectation cannot be invoked by temporary employees to claim that they be made permanent and the fact that in certain cases, the Courts have directed that the employees be made permanent cannot be used to base a claim of legitimate expectation. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection, as recognised by the relevant rules or procedure, such person is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and through the Page 19 of 72 HC-NIC Page 19 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Public Service Commission.
21 Mr. Jani placed reliance on the averments made in the affidavitin reply filed on behalf of the respondent No.2. Few relevant paragraphs are elicited as under:
"c. Procedure for appointment 13 I respectfully say and submit that as mentioned aforesaid regarding procedure of appointment and mode of appointment for lecturers teaching in Degree and Diploma Course is very crucial to mention, at this stage.
14 I respectfully say and submit that as per the recruitment rules, the procedure for appointment of regular lecturers in degree and diploma courses is governed by the respective recruitment rules, which is totally different than lecturers appointed on adhoc basis.
15 I state that the procedure for appointment for REGULAR appointments in brief is incorporated herein below:
• when an occasion arises to fill up teaching vacant posts, then firstly a proposal / requisition is sent from the Commissioner office to the Education Department, who would then forward it to GPSc. • Thereafter, the GPSC considers various aspects and legality of the same, thereby, undertakes the entire procedure of issuing advertisements and interview/examination, etc., on conducting the same, a selection list is sent to the Education Department, who approves the list, and thereafter, the list is sent to the office of the Commissioner. The Commissioner office in turn sends the selected candidates for Medical Examination, thereafter, verifies documents, and, accordingly, appointment order issued.
16 I respectfully say and submit that as the regular recruitment was time consuming, due to multiple process being involved, and through public selection commission, it was consciously decided by the State Government in order to fulfill the requirement of Lecturers in Degree and Diploma Courses to be appointed as adhoc or contractual appointment. All the appointments on adhoc and contractual basis were interim arrangement till regularly selected candidates are available or 11 months, whichever is earlier.
"d. Procedure adopted for appointment on temporary, adhoc, contractual basis.Page 20 of 72
HC-NIC Page 20 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT 17.1 I respectfully say and submit that as the Government was conscious of the fact that the appointments of Lecturers are to be made on adhoc basis, therefore, the Government had framed regulation named as 'Gujarat Public Service Selection Commission, Exemption from Consolidation Regulations, 1960" (hereinafter referred as Regulation of 1960) this regulation of 1960 came into force on 06.10.2010. The main object behind framing this regulations was to see that the appointments which are an interim arrangement as adhoc or contractual appointment, could be systematically and smoothly governed. It would be very pertinent to emphaize that all those appointments which are made for a period less than of 12 months does not require any consultation with the GPSC. A copy of the aforesaid resolution is annexed herewith and marked as AnnexureRV. 17.2 I respectfully say and submit that the State of Gujarat has passed the Government Resolution dated 20.05.2008 which governs the adhoc appointments for the Lecturers posts in respective Degree and Diploma Courses. Furthermore, it is obsequiously submitted that by plain reading of the Governmental Resolution of 2008, it clearly points out that the appointments of the adhoc lecturers is to be made by the Selection Committee consisting of the Director of Technical Education as Chairman and Principal of Engineering or Technical or Pharmacy Colleges as special expert as Principal and Joint Director of Technical Education as a Principal Secretary. The aforesaid Government Resolution of 2008 emphatically delineates that the appointees on adhoc or contractual basis shall be governed by the rules and terms of appointment and they shall not be entitled to other benefits which are given to the regularly selected Lecturers. By emphasizing the aforesaid, it is submitted that at the time of framing all the aforesaid resolution framers were conscious and considered all the facts that the regularly appointee as well as adhoc appointee stands on different footing. Therefore,k the appointees on contractual / ad hoc cannot be equal in same manner of regularly appointed.
17.3 I respectfully say and submitted that the State Government also passed Government Resolution dated 14.10.1993 regulation for appointment of adhoc / contractual and fix pay lecturer. A copy of the aforesaid Government Resolution is annexed herewith and marked as AnnexureRVI.
18 I say and submit that it is relevant to mention the procedure adopted by the authorities for filling up the post of Lecturers in Degree and Diploma Engineering Colleges on adhoc or contractual basis which is as follows:
• The Commissioner sends requisition to Education Department, who forwards it to the Finance Department for approval and Finance Department after approval returns the proposal to Education Page 21 of 72 HC-NIC Page 21 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Department.
• Thereafter the Education Department approves and gives direction to the Commissioner to fill up the said posts.
• The interviews are conducted and the orders of selected candidates are issued along with the posting. Thereafter Medical Examinations and document verification is done by the Commissioner office.
e. Current Status of Recruitment by GPSC.
19 I respectfully say and submit that it is pertinent to refer to the present status of recruitment by the State through the GPSC. Be it noted that, so far as, regular appointment is concerned, the State Government and GPSC are already in the process of making appointment. A chart is prepared both for degree and diploma courses to show that advertisements is issued, in some cases preliminary examination is conducted but awaiting result whereas in others it is still at application stage or even appointments are also made. Therefore also petitioner's services cannot be regularized. (A copy of the aforesaid chart is annexed herewith and marked as AnnexureRVII)."
22 In support of his submission, Mr. Jani has placed reliance on the following decisions:
(1) K.D. Vohra vs. Kamleshbhai Gobarbhai [(2003(2) GLR 1343] (2) Kishori Mohanlal Bakshi vs. Union of India AIR 1962 SC 1139 (3) Surendra Nath Pandey vs. U.P. Cooperative Bank Limited [(2010) 12 SCC 400] (4) Col. Retd. B.J. Akkara vs. Government of India [(2006) 11 SCC 709] (5) Federation of All India Custom and Central Excise, Stenographer Recognised vs. Union of India [(1988 (3) SCC 91] Page 22 of 72 HC-NIC Page 22 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT
23 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicants are entitled to any of the reliefs as prayed for in the writ applications.
24 Although the teaching is the last choice in the job market, yet it has become miserable as the Teachers are driven repeatedly to take recourse to unwarranted and fruitless litigation. The approach adopted by the State Government to appoint qualified Lecturers on ad hoc and contract basis for a specified period on a consolidated amount of remuneration against the regular sanctioned vacancies is once again the subject matter of adverse criticism. It is a crying shame and sad state of affairs that fully qualified Lecturers selected by the duly constituted Selection Committee on the basis of a public advertisement and fully qualified at a point of entry are serving as ad hoc and contractual Lecturers past couple of years.
25 The explanation tendered by the State Government that the G.P.S.C. has not been able to undertake the regular recruitment process past couple of years is highly unpalatable. If the G.P.S.C. has no time to undertake the recruitment, then should the qualified Lecturers suffer for no fault on their part. There can be no quarrel about the proposition of law that the State Government has the power and authority to make contractual appointments within the meaning of Article 310(2) of the Constitution of India. However, what is absolutely not appealing is the distinction drawn between the ad hoc Lecturers appointed before the 28th May 2008 and those appointed after 28th May 2008. The status remains the same. The duties and functions remain the same. The qualification remains the same. The mode of appointment remains the same. Then why the discrimination between the two sets of ad hoc Page 23 of 72 HC-NIC Page 23 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Lecturers so far as the salary and other allowances are concerned. I see no good reason or any justifiable legal ground to sustain the same. After the commencement of the Constitution, public employment has come to be recognised as a public property. Therefore, all appointments to the public services are required to be made in accordance with the rules and the equality contained under Articles 14 and 16 of the Constitution. The "doctrine of laissezfaire" is no more recognised in our country after the commencement of the Constitution and the employer, private as well as public, does not enjoy absolute freedom to dictate the terms of employment. The fact that short term contract of service is wholly unjust, unconscionable and against the very letter and spirit of the Constitution came to be determined by the Supreme Court in Central Inland Water Transport Corporation vs. Brojo Nath Ganguly and others [1986 (3) SCC 156]. In that case, the question was as to whether the power reserved by the employer to terminate the services of an employee without giving any reason and without giving any notice is void under Section 23 of the Contract Act as opposed to public policy. It was observed that the, "Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or Page 24 of 72 HC-NIC Page 24 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. The types of contracts to which the principle formulated above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and require to be adjudged void." These observations of the Apex Court came to be made in the wake of the earlier decision in the case of West Bengal State Electricity Board v. Desh Bandhu Ghose [AIR 1985 SC 722=1985(1) SLJ 318 (SC)], wherein it was ruled that, "........a naked hire and fire rules, the time for banishing which altogether from employeremployee relationship, is fast approaching. Its only parallel is to be found in the Henry VIIIth Clause so familiar to the administrative lawyers." The decision in Brojo Nath Ganguly's case (supra) was approved by the Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101 = 1991(1) SLJ 56 (SC).
26 Where the need is permanent, the practice of appointing a person on ad hoc or contractual basis would not be in consonance with the public policy. If the need is permanent, such action would not only be violative of concept of public policy but would also be violative of Articles 14 and 16 of the Constitution. The mere fact that the writ applicants joined the service in terms of the condition would not stand in their way. The doctrine of waiver can have no application to the provision of law which have been enacted as a matter of constitutional policy.
27 I fail to understand why the State Government is not ready to understand in the context of ad hoc and contractual appointment that the importance of teacher in educating younger generation and the need Page 25 of 72 HC-NIC Page 25 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT for ensuring their appropriate service conditions. The Supreme Court in the case of Andhra Kesari Education Society vs. Director of School Education and others [JT 1988 (4) SC 431] observed that the teacher is a spark plug or engine of the educational system. He is a principal instrument in awakening the child to cultural values. He is indeed endowed and energised with needed potential to deliver enlightened service expected of him. In State of Maharashtra vs. Vikash Saheb Rao Roundale and others [1992 (5) SSC 175], the Supreme Court observed that the teacher plays a pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in children. The concept of contractual appointment which may, as a matter of course, be adopted in other services cannot be taken recourse of in the matter of school / college teachers who have pivotal role to play in the society. In my view, they are not even debarred from challenging the inequitable, oppressive and unjustified conditions even though by force of circumstances they had accepted the engagement. I can appreciate that ad hoc or contractual appointments are made pursuant to a scheme framed by any Corporation or statutory body with some object and a decision is taken to discontinue the scheme. In such circumstances, the ad hoc or contractual appointment in the first instance may be justified and putting an end to the services also at times may be justified. However, in the case like the posts of Lecturer in the Engineering Colleges why should there be ad hoc and contractual appointment, more particularly, when there are hundreds of sanctioned vacant posts. Once again, at the cost of repetition, the reply of the State Government that it is for the G.P.S.C. to do the needful is not at all reasonable and acceptable. It is too much to say that past two decades, the G.P.S.C. has not been able to find sufficient time to undertake the recruitment. Whatever may have been the reason for not filling up the posts of Lecturers through the G.P.S.C., the same does not appear to be a part of Page 26 of 72 HC-NIC Page 26 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT the sound educational policy. It is high time that the administration, in the interest of education, pays immediate attention to this vital aspect of the matter. I do not find any difference between the ad hoc Lecturers appointed before the 28th May 2008 and the writ applicants herein appointed on ad hoc basis after the 28th May 2008. It may not be out of place to state that since 2009, there has been no ad hoc appointment, but only contractual on the fixed pay. The ad hoc Lecturers appointed before 28th May 2008 are receiving all the benefits which a regular Lecturer is receiving as on date, except the status which remans ad hoc. Why should the ad hoc Lecturers appointed after 28th May 2008 not be put on par with the ad hoc Lecturers before 28th My 2008.
28 The above discussion, thus, leads to certain inescapable conclusions; first; that though the Government has the power and authority to make part time, contractual, ad hoc and temporary appointments for a fixed term and on fixed remuneration, yet the appointments of such a nature i.e. for short terms are not conducive to the teacher and taught relationship, as in its very nature, the teaching profession requires a close rapport between the teachers and students and continuity of relationship is a must for effective and useful education; secondly, the short term appointments for a specified period of the Lecturers have been termed as unjust, unfair, oppressive and violative of the constitutional mandate of equality as enshrined in Articles 14 and 16 of the Constitution; thirdly; the unemployed college Lecturers have no bargaining power; they cannot dictate the terms to be incorporated in the contract of employment. It is always the 'Will' of the employer which prevails. A teacher has no role to play in settling the terms and conditions of appointment. They cannot afford to protest against the arbitrary, unconscionable and one sided terms/conditions; on the other hand, their miserable condition and compelling circumstances, Page 27 of 72 HC-NIC Page 27 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT leave them with no choice but to accept the dictates of the employer, fourthly, the teachers are not estopped to challenge the arbitrary terms incorporated in the letter of appointment and they are entitled to question the validity, legality and propriety of the terms and conditions if a case is made out and are also entitled to seek regularisation in service.
29 A Division Bench of the Punjab and Haryana High Court in the case of Polu Ram vs. State of Haryana [1998 (4) RSJ 152], speaking through G. S. Singhvi, J. (as His Lordship then was), pronounced in paras 20 and 21 as under:
"20 The role of teacher in educating younger generation and the need for ensuring appropriate service conditions for teachers was highlighted in the new education policy. An extract of paragraph 9 of this policy which was circulated by the Ministry of Home Resource Development reads as under: PART IX THE TEACHER 9.1. The status of the teacher reflects the sociocultural ethos of a society it is said that no people can rise above the level of its teachers. The Government and the community should endeavour to create conditions which will help motivate and inspire teachers on constructive and creative lines. Teachers should have the freedom to innovate, to devise appropriate methods of communication and activities relevant to the needs and capabilities of and the concerns of the community.
9.2.The methods of recruiting teachers will be reorganised to ensure merit, objectivity and conformity with spatial and functional requirements. The pay and service conditions of teachers have to be commensurate with their social and professional responsibilities and with the need to attract talent to the profession.
xx xx xx xx xx The Courts have also taken cognizance of the need of well equipped teachers for inspiring the pupils, In Andhra Kesari Education Society v. Director of School Education & Ors., 1988 4 JT 431, the Apex Court expressed itself in the following words :
"Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education. The teacher alone could bring out the skills and intellectual capabilities of students. He is the engine of the educational system. He is a principal instrument in awakening the child to cultural values. He Page 28 of 72 HC-NIC Page 28 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter. He must keep himself abreast of ever changing conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse nobler and notional ideas in younger minds. His involvement in national integration is more important, indeed indispensable."
In State of Maharashtra v. Vikas Sahebrao Roundale & Ors., 1992 5 JT 175, K. Ramaswamy, J. speaking for this Court observed as under :
"The teacher plays pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline."
21 The importance of the role of a teacher has also been highlighted by this Court while deciding C.W.P. No. 14457 of 1997, Mohita Goyal v. Kurukshetra University, Kurukshetra & Ors. decided on 10.11.1997. A Division Bench to which one of us was a member, observed as under :
"The role of a teacher is extremely important not only to the society but also to the nation. The teacher alone can bring about a skill and intellectual capability in the students. He is the principal instrument in awakening the child to cultural values. He moulds the career, character immoral fibre and aptitude for educational excellence. A teacher has to keep himself abreast of even changing needs of the educational system because unless he is fully equipped with the latest developments, the teacher cannot effectively play his/her role of national building. Therefore, the quality of teacher should be such which would inspire the pupils.""
30 A Division Bench of the Punjab and Haryana High Court in the case of Gurindervir Singh and Others vs. U.T. and another [Writ Petition No.18225/CAT/98 decided on 22nd January 2002] considered an order passed by the CAT granting the minimum of the pay scale to the Lecturers appointed on ad hoc / contractual basis. It was argued Page 29 of 72 HC-NIC Page 29 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT before the Division Bench by the respondents that the modes of recruitment of regular Lecturers and contract appointees were different, the latter category were not entitled to get the benefit of the doctrine of "equal pay, for equal work". The Division Bench, while rejecting the such submission, observed "the mode and manner of recruitment may have a bearing on the right of the employees to hold the post and their conditions of service, like confirmation, seniority, promotion, but the same is not determinative of their right to be paid salary in a particular pay scale and in any case, this has no relevance in the context of doctrine of 'equal pay for equal work.'"
The order of the Tribunal allowing minimum of the regular pay scale as salary to the contract appointees was approved. Without dilating the matter any further, suffice it to say that the claim of the college Teachers appointed on parttime or contractual basis for the payment of minimum of the pay scale as admissible to the regular employees had been upheld.
31 The claim of the Lecturers in the Colleges appointed on ad hoc, parttime, contractual or temporary basis for minimum salary in the scale admissible to the regular teachers has come up for adjudication in a series of decisions. The Supreme Court in the case of Vijay Kumar and others vs. State of Punjab [AIR 1994 SC 265], had the occasion to consider the case of the parttime Lecturers not gainfully employed elsewhere claiming minimum wages of pay scale prescribed for the regularly appointed teachers on the premise that quantitatively and qualitatively, they were performing the same duties as the regular Lecturers. The Supreme Court allowed the parttime Lecturers to draw the salary equivalent to the minimum of the pay scale prescribed for the regularly appointed Lecturers.
32 At this stage, let me look into the decision of the Supreme Court, Page 30 of 72 HC-NIC Page 30 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT in the case of U.P. Land Development Corporation (supra). In that case, the respondents were employed on contract basis on a consolidated monthly salary of Rs.2000/ under the Million Wells Scheme. They were interviewed by the Selection Committee along with the other eligible persons and were found suitable for the job. Their contractual appointment was continued from time to time. Although they were employed on the contract basis, yet the fact was that two posts of the Assistant Engineers and one post of the Junior Engineer were vacant when they were engaged on the contract basis. The High Court held that the respondents were entitled to the regular pay scale on Rs.2,200 - 4,000/ meant for the posts of Assistant Engineer. The Corporation, being dissatisfied, preferred appeal before the Supreme Court. The Supreme Court, while allowing the appeal in part, took the view that the respondents were entitled to receive the minimum of the pay scale prescribed for the post of Assistant Engineer (as revised from to time) from the date of their appointment till they continued in the employment of the Corporation. While taking such view, the Supreme Court observed as under:
"12. The question whether the principle of 'equal pay for equal work' can be read as part of the doctrine of equality has been considered by this Court in large number of cases. In Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139, this Court observed that the principle of 'equal pay for equal work' as an abstract doctrine had nothing to do with Article
14. This view has not been followed in most of the subsequent judgments. In Randhir Singh v. Union of India (1982) 1 SCC 618 : (AIR 1982 SC
879), the Court distinguished the three earlier judgments including Kishori Mohanlal Bakshi v. Union of India (supra) and observed :
"7. Our attention was drawn to Binoy Kumar Mukerjee v. Union of India and Makhan Singh v. Union of India, where reference was made to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India, (AIR 1962 SC 1139) describing the principle of "equal pay for equal work" as an abstract doctrine which had nothing to do with Article 14. We shall presently point out how the principle, "equal pay for equal work", is not an abstract doctrine Page 31 of 72 HC-NIC Page 31 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT but one of substance. Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of "equal pay for equal work" would be an abstract doctrine not attracting Article 14 if sought to be applied to them.
8. It is true that the principle of "equal pay for equal work" is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims "equal pay for equal work for both men and women" as a directive principle of State Policy. "Equal pay for equal work for both men and women" means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robberbarons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word "socialist" must mean something. Even if it does not mean 'to each according to his Page 32 of 72 HC-NIC Page 32 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT need', it must at least mean "equal pay for equal work". "The principle of "equal pay for equal work" is expressly recognized by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western Labour Codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance" (vide International Labour Law by Istvan Szaszy, p. 265). The Preamble to the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Article 39 (d), we are of the view that the principle "equal pay for equal work" is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.""
"16 In Jawaharlal Nehru Technological University v. T. Sumalatha (2003) 10 SCC 405 : (AIR 2003 SC 3877 : 2003 AIR SCW 4458), a two Judge Bench set aside the direction given by the High Court to the appellant to absorb the respondents in accordance with the policy contained in G.O. No. 212 dated 22.4.1994, but made some significant observations on the issue of payment of higher salary to them. The same are extracted below :
"9.Though the plea of regularisation in respect of any of the fifth respondents cannot be countenanced, the respondent employees should have a fair deal consistent with the guarantee enshrined in Articles 21 and 14 of the Constitution. They should not be made to work on a meagre salary for years together. It would be unfair and unreasonable to extract work from the employees who have been associated with the nodal centre almost from its inception by paying them remuneration which, by any objective standards, is grossly low. The Central Government itself has rightly realised the need to revise the consolidated salary and accordingly enhanced the grant on that account on two occasions. That revision was made more than six years back. It is high time that another revision is Page 33 of 72 HC-NIC Page 33 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT made. It is therefore imperative that the Ministry concerned of the Union of India should take expeditious steps to increase the salary of the investigators viz. Respondents 1 to 4 working in the nodal centre in Hyderabad. In the absence of details regarding the nature of work done by the said respondents and the equivalence of the job done by them to the other posts prevailing in the University or the Central Government institutions, we are not in a position to give any direction based on the principle of 'equal pay for equal work'. However, we consider it just and expedient to direct Respondent 7 or 8, as the case may be, to take an expeditious decision to increase the consolidated salary that is being paid to Respondents 1 to 4 to a reasonable level commensurate with the work done by them and keeping in view the minimum salary that is being paid to the personnel doing a more or less similar job. As far as the fifth respondent is concerned, though we refrain from giving similar directions in view of the fact that the post is not specifically sanctioned under the Scheme, we would like to observe that the Central Government may consider increasing the quantum of office expenditure suitably so that the University will be able to disburse higher salary to the fifth respondent."
17 In Dayanand's case, (AIR 2008 SC (Supp) 1177) the Court observed that the ratio of Randhir Singh's case, (AIR 1982 SC 879) has not been followed in later judgments and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, experience', confidentiality, functional need etc. 18 In Surjit Singh's case, (2009 AIR SCW 6759) the Court reviewed large number of judicial precedents and observed :
"19...Undoubtedly, the doctrine of 'equal pay for equal work' is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of 'equal pay for equal work' has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay Page 34 of 72 HC-NIC Page 34 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of 'equal pay for equal work' requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors."
19 In the light of the above stated legal position, we shall now consider whether the direction given by the Division Bench of the High Court to the appellants to pay salary to the respondents in the regular pay scale prescribed for the post of Assistant Engineer is legally correct. Here it is apposite to note that the High Court granted relief to the respondents by presuming that two posts of Assistant Engineer were utilized for appointing them. This assumption is ex facie fallacious because the documents produced before the High Court and this Court show that the respondents were engaged for a fixed period on a consolidated salary.
Page 35 of 72HC-NIC Page 35 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT There is nothing in the language of orders dated 18.2.1991 from which it can be inferred that the respondents were appointed against the sanctioned posts of Assistant Engineer (Civil). The correspondence exchanged between the State Government and the Corporation after 18.2.1991 cannot be relied upon for recording a finding that the respondents were appointed against the sanctioned posts of Assistant Engineer. Therefore, the direction given by the High Court for payment of salary to the respondents in the regular pay scale prescribed for the post of Assistant Engineer cannot be sustained. But, at the same time, we are convinced that the appellants were not justified in continuing the respondents on a consolidated salary of Rs. 2000/ per month despite the fact that at the time of their selection, two sanctioned posts of Assistant Engineer and one post of Junior Engineer were lying vacant and proposal for appointing the respondents without any nomenclature was made with the sole object of taking work of the particular post from them without paying salary in the regular payscale of any post.
20 To say the least, the decision of the Corporation to effect economy by depriving the respondents' even minimum of the payscale was totally arbitrary and unjustified. The very fact that the respondents were engaged on a consolidated salary of Rs. 2,000/ per month and the prescribed pay scale of the post of Assistant Engineer in other branches was Rs. 2200 4000/ and that of the Junior Engineer was Rs. 1,600 2,660/ gives a clear indication that they were engaged to do the work of Assistant Engineer. The appellants had neither pleaded before the High Court nor it has been shown to this Court that the respondents were not qualified for the post of Assistant Engineer. It is also not the case of the appellants that the respondents suffered from any other disability which could impede their appointment on the post of Assistant Engineer. In the written statement filed before the High Court, the appellants did make a statement that the respondents were not discharging the duties of Assistant Engineer but no material was produced either before the High Court or before this Court to show any difference in the nature of duties being performed by the respondents and those which were required to be performed by an Assistant Engineer. It is, therefore, reasonable to take the view that the respondents had been arbitrarily deprived of their legitimate right to get minimum of the payscale prescribed for the post of Assistant Engineer.
21 In the result, the appeal is partly allowed. The impugned order is set aside. However, the appellants are directed to pay to the respondents minimum of the payscale prescribed for the post of Assistant Engineer (as revised from time to time) from the date of their appointment till they continued in the employment of the Corporation."
33 The aforenoted decision of the Supreme Court is sought to be distinguished by Mr. Jani, the learned Additional Advocate General on Page 36 of 72 HC-NIC Page 36 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT the ground that in the case before the Supreme Court, the appointments on contractual basis were after following the due process of law. Whereas so far as the case in hand is concerned, since the writ applicants have not been appointed through the Gujarat Public Service Commission, they cannot be said to have been appointed in accordance with law. I am not at all impressed by such distinction drawn by the learned Additional Advocate General. It would not be proper to say that the writ applicants were appointed without any process of selection. The State Government itself has explained the procedure adopted for appointment on the temporary, ad hoc, contractual basis. The appointment of the ad hoc Lecturers is made by the Selection Committee consisting of the Director of Technical Education, as its Chairman, and the Principal of Engineering or Technical or Pharmaceutical Colleges as an expert. Although the selection had not been made through the Public Service Commission, yet there was a process of selection. It will be too much to say that since the contractual appointees are not through the G.P.S.C., they are not even entitled to receive the minimum of the pay scale prescribed for the post in question with the other allowances. At this stage, I would like to refer to and rely upon the decision of the Supreme Court in the case of State of Karnataka and another v. B. Suvarna Malini and another [(2001) 1 SCC 728]. The Supreme Court in para 3 observes "these cases involve not only a question of law but also a human problem inasmuch as these part time lecturers have served in different colleges for varying period for ten to twenty years and, if they are not regularised and treated as regular servants, then they will not be able to get themselves engaged anywhere else and at the same time, their experience in teaching will be a great loss to the student community".
While allowing the appeals filed by the State of Karnataka being dissatisfied with the order passed by the Tribunal as well as the High Page 37 of 72 HC-NIC Page 37 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Court in striking down the impugned absorption rules, it pronounced as under:
"8. From time to time, the Government have also been issuing instructions for canalizing the method of appointment and directing that even part time lecturers could be appointed through the Directorate of Collegiate Education and not otherwise. The Directorate of Collegiate Education also has been issuing circulars indicating the guidelines. The reasons which weighed with the High Court to sustain striking down of the Absorption Rules are that the socalled part time lecturers had not been appointed after a process of selection in accordance with the prescribed rules but on the other hand, their appointment is de hors the rules. Further such candidates are not scrutinized by the Public Service Commission and they do not possess the N.E.T. test, as provided by the University Grants Commission, which is one of the essential requisites for recruitment under the statutory Recruitment Rules of 1993.
9. From the materials on record, it appears that the State government has been regulating the mode of appointment of part time lecturers and it is not correct that there has been no process of selection before such appointment of part time lecturers. Even though the selection had not been made by the Public Service Commission, but yet there was a process of selection and it further appears that unqualified people were not been appointed as part time lecturers. Part time lecturers having been formed a class by themselves and for some reason or the other, they having been deprived of the benefits of the earlier directions of this Court on account of inaction on the part of the State Government, the matter was reexamined by a Committee of experts as to how best, the services of these part time lecturers can be utilised and at the same time, there will be no dilution in the quality of teaching nor there can be any infraction in the minimum qualification, necessary for appointment as a lecturer. The concept of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. All that Article 14 guarantees is a similarity of treatment contradistinguished from identical treatment. Equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though, they are the same. It ofcourse means denial of any special privilege by reason of birth, creed or the like. The legislature as well as the executive government, while dealing with diverse problems arising out of an infinite variety of human relations must of necessity, have the power of making special laws, to attain any particular object and to achieve that object, it must have the power of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to Page 38 of 72 HC-NIC Page 38 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT discrimination. When the Absorption Rules are examined from the aforesaid stand point and when we consider the circumstances under which the said rules were made to solve a human problem and that the rules made were put to objection to the general public and even the Public Service Commission was consulted and finally was before the State Legislature to have their concurrence, we are of the considered opinion that the High Court committed error in striking down the rules on the ground that it is discriminatory. When this Court deprecates the regularisation and absorption, when it comes to the conclusion that such regularisation and absorption has become a common method of allowing back door entries and then regularising such entry, it is not that in every case, the Court would be justified in striking down the process of absorption or regularisation, more so when such absorption has been made as a legislative measure and that also as a one time measure, and at the same time insisting upon the essential qualifications to be duly complied with, by the persons intended to be absorbed on regular basis. In the aforesaid premises, we have no hesitation to come to the conclusion that tribunal as well as the High Court committed serious error in striking down the impugned absorption rules. We, therefore, set aside the judgment of the tribunal and the High Court and allow these appeals. While we hold the absorption rules to be valid, we would further direct that the State Government must insist upon the candidates to pass the N.E.T. test, as required by the University Grants Commission within the period of three years and it is only on passing of such test, the absorbed employees will be entitled to the scale of pay, available for the regular qualified lecturers. Failure on their part to pass the N.E.T. test would debar them from being absorbed and regularised."
34 In the aforesaid context, I may quote with profit a direct decision of the Supreme Court which answers the principal argument of Mr. Jani, the learned Additional Advocate General as regards the different mode of appointments and the applicability of the doctrine of "equal pay for equal work" in such circumstances. In the case of Jaipal and others vs. State of Haryana [AIR 1988 SC 1504], the petitioners were working as the Instructors under the Adult and Nonformal Education Scheme framed by the Education Department of Haryana. The object of the Non formal Education and Adult Education Scheme was to impart literacy (functions and awareness) to the adult illiterates in the age group of 15 35 years and to provide literacy to the children in the age group of 515 years who were dropouts from the primary and middle school level or Page 39 of 72 HC-NIC Page 39 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT who never joined any regular school. The petitioners were appointed as the Instructors to impart literacy to the adult illiterates at the different centres on different dates. The petitioners were appointed as Instructors by the District Adult Education Officer of each Districts between 1978 and 1985 on the basis of selection held by a Selection Committee. Initially, the petitioners were paid a fixed salary of Rs.150/ per month and thereafter increased to Rs.200/ per month. The minimum qualification for being appointed as Instructor was metric, many of the Instructors were Graduate while some of those also held the junior basic training certificates. There was another scheme known as the Social Education Scheme in the State of Haryana for imparting education to the illiterates in the villages, the scheme was also known as the State Adult Education Programme.
The Teachers employed under that scheme were known as the squad teachers who ran the centres. In 1981, the head squad teachers and squad teachers were regularised as the head teachers and teachers, and granted the benefit of the pay scale applicable to the primary schools maintained by the State Government. The petitioners grievance was that although they were performing the functions and duties of the same nature as performed by the squad teachers, yet they were denied the same scale of pay; instead, they were being paid a fixed salary of Rs.200/ per month. In such circumstances, the following reliefs were prayed by the petitioners:
"a) Issue a writ in the nature of mandamus or any appropriate writ, order or direction that the petitioners continue to be in the service of the respondents from the date of their initial appointment irrespective of their being a deliberate break in their services during the vacation period.
b) Issue an appropriate writ, order or direction to the respondents to put the petitioners on regular pay scales to that of primary school teachers in the Education Department of Haryana plus other consequential benefits Page 40 of 72 HC-NIC Page 40 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT from the date of their initial appointment and further direct the respondents to pay the petitioners the difference in arrears of salary accrued to them from the date of their initial appointment.
c) Issue an appropriate writ, order or direction that the Department of Adult Education and Nonformal Education is a permanent department of the State and the petitioners are regularised teachers in the Department appointed against sanctioned posts of instructors."
The principal contention canvassed on behalf of the respondents was that the mode of recruitment of the petitioners was different from the mode of recruitment of the squad teachers inasmuch as the petitioners were appointed locally while the squad teachers were selected by the Subordinate Service Selection Board after competing with the candidates from the various parts of the country. This is exactly the argument of Mr. Jani, the learned Additional Advocate General in the case in hand. The Supreme Court, while negativing such contention, took the view pronouncing as under:
"7... Article 39(d) contained in Part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women. Though Art. 39 is included in the Chapter of Directive Principle of State Policy, but it is fundamental in nature. The purpose of the article is to fix certain social and economic goals for avoiding any discrimination amongst the people doing similar work in matters relating to pay. The doctrine of equal pay for equal work has been implemented by this Court in Randhir Singh v. Union of India, (1982) 3 SCR 298 : (AIR 1982 SC 879), Dhiren Chamoli v. State of U.P., (1986) 1 SCC 637 and Surinder Singh v. EngineerinChief, CPWD, (1986) 1 SCC 639 : (AIR 1986 SC 584). In view of these authorities it is too late in the day to disregard the doctrine of equal pay for equal work on the ground of one employment being temporary and the other being permanent in nature. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee."
8 The respondents' contention that the mode of recruitment of petitioners is different from the mode of recruitment of squad teachers in as much as the petitioners are appointed locally while squad teachers were selected by the subordinate Service Selection Board after competing with candidates from any part of the country. Emphasis was laid during Page 41 of 72 HC-NIC Page 41 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT argument that if a regular selection was held many of the petitioners may not have been appointed, they got the employment because outsiders did not compete. In our opinion, this submission has no merit. Admittedly the petitioners were appointed on the recommendation of a Selection Committee appointed by the Adult Education Department. It is true that the petitioners belong to the locality where they have been posted, but they were appointed only after selection true that they have not been appointed after selection made by the Subordinate Service Selection Board but that is hardly relevant for the purposes of application of doctrine of "equal pay for equal work". The difference in mode of selection will not affect the application of the doctrine of "equal pay for equal work" if both the classes of persons perform similar functions and duties under the same employer. Similar plea raised by the State of Haryana in opposing the case of supervisors in the case of Bhagwan Dass (supra) was rejected, where it was observed that if the State deliberately chose to limit the selection of candidates from a cluster of a few villages it will not absolve the State for treating such candidates in a discriminatory manner to the disadvantage of the selectees once they are appointed provided the work done by the candidates so selected is similar in nature. The recruitment was confined to the locality as it was considered advantageous to make recruitment from the cluster of villages for the purposes of implementing the Adult Education Scheme because the instructors appointed from that area would know the people of that area more intimately and would be in a better position to persuade them to take advantage of the Adult Education Scheme in order to make it a success."
"10 In view of the above discussion, we hold that the instructors are entitled to the same pay scale as sanctioned to squad teachers. We, accordingly, direct that the petitioners' salary shall be fixed in the same pay scale as that of squad teachers. The pay of each of the petitioners shall be fixed having regard to the length of service with effect from the date of his initial appointment by ignoring the break in service on account of six months fresh appointments. The petitioners will be entitled to increments in the pay scale in accordance with law notwithstanding the break in service that might have taken place. We further direct that these directions shall be implemented with effect from Sept. 1, 1985 as directed by this Court in the case of Bhagwan Dass, (AIR 1987 SC 2049) (supra). The petitioners' claim for regularising their services in the department cannot be accepted as admittedly the project of Adult and Nonformal Education is temporary which is likely to last till 1990. We accordingly allow the writ petitions partly with costs which we quantify at Rs. 5,000/."
35 In the aforenoted decision of the Supreme Court, there is a reference of the its earlier decision in the case of Bhagwan Dass [AIR 1987 SC 2049]. I must look into this decision of the Supreme Court. In Page 42 of 72 HC-NIC Page 42 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Bhagwan Dass (supra), the contention of the respondents was that as the mode of recruitment of the petitioners was different than compared to the respondents Nos.2 to 6, the doctrine of "equal pay for equal work"
would not be applicable. While negativing such contention, the Supreme Court pronounced as under:
"11..Be that as it may, so long as the petitioners are doing work which is similar to the work performed by respondents 2 to 6 from the standpoint of 'equal work for equal pay' doctrine, the petitioners cannot be discriminated against in regard to pay scales. Whether equal work is put in by a candidate selected by a process whereat candidates from all parts of the country could have competed or whether they are selected by a, process where candidates from only a cluster of a few villages could have completed (competed) is altogether irrelevant and immaterial, for the purposes of the applicability of 'equal work for equal pay' doctrine. A typist doing similar work as another typist cannot be denied equal pay on the ground that the process of selection was different inasmuch as ultimately the work done is similar and there is no rational ground to refuse equal pay for equal work. It is quite possible that if he had to compete with candidates from all over the country, he might or might not have been selected. It would be easier for him to be selected when the selection is limited to a cluster of a few villages. That however is altogether a different matter. It is possible that he might not have been selected at all if he had to compete against candidates from all over the country. But once he is selected, whether he is selected by one process or the other, he cannot be denied equal pay for equal work without violating the said doctrine. This plea raised by the respondentState must also fail."
The Court also negatived the contention that the scheme was a temporary and the posts were sanctioned on a year to year basis having regard to the temporary nature of the scheme. The Court pronounced as under:
"13..We are unable to comprehend how this factor can be invoked for violating 'equal pay for equal. work' doctrine. Whether appointments are for temporary periods and the Schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of 'equal pay for equal work' is attracted. As regards the effect of the breaks given at the end of every six months, we will deal with this aspect shortly hereafter. That however is no ground for refusing the 'equal pay for equal work' doctrine.Page 43 of 72
HC-NIC Page 43 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Be it realized that we are concerned with the 'equal work for equal pay' doctrine only within the parametres of the four grounds and the fact situation discussed hereinabove. We are not called upon, and we have no need or occasion to consider the applicability or otherwise of the said doctrine outside these parameters. For instance we are not required to express any opinion in the context of employment of similar nature under different employers, or in different cadres under the same or different employers. Nor are we concerned with questions required to be dealt with by authorities like the Pay Commissions such as equation of cadres or determination of paritydifferential between different cadres or making assessment of work loads or qualitative differential based on relevant considerations and such other matters. We are concerned in the present matter with employees of the same employer doing same work of same nature discharged in the same department but appointed on a temporary basis instead of in a regular cadre on a regular basis. We have therefore decided the questions raised before us in the backdrop of facts of the present case. On the other dimensions of the doctrine we remain silent as there is no need or occasion to speak."
36 Thus, I am of the view that the decision of the Supreme Court in the case of U.P. Land Development Corporation (supra), more particularly, the principles enunciated therein should apply with all force so far as the contractual Lecturers are concerned praying for the minimum of the pay scale with other allowances.
37 The Constitutional Bench of the Supreme Court in the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] clarified that the concept of "equal pay for equal work"
is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. The observations of the Supreme Court, as contained in para 44, are relevant. Those are elicited as under:
"The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Page 44 of 72 HC-NIC Page 44 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity..."
38 I have to my advantage a Full Bench decision of the Punjab and Haryana High Court in the case of Avtar Singh and others vs. State of Punjab and others [(2012) 1 SLR 832]. The said decision of the Full Bench supports the view with one I have taken in this matter. After an exhaustive review of the various Supreme Court decisions and the decisions of the High Courts, the Full Bench pronounced as under:
"Keeping in view the ratio of the aforesaid judgments, we hold that daily wagers, ad hoc or contractual appointees are not entitled to minimum of the regular pay scale from the date they were engaged merely for the reason that the physical activity carried out by the daily wager and the regular employee is similar, but such general principle shall be subject to the following exceptions:
(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme.
(3) In the event, a claim is made for minimum pay scale after more than Page 45 of 72 HC-NIC Page 45 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months."
39 I had an occasion to consider the claim put forward by the Akhil Gujarat Parttime Lecturers Association to pay to the part time college Teachers half/proportionate amount of the basic of the scale being paid to the full time college Teachers and proportionate increment, dearness allowance and other permissible benefits with retrospective effect from 1st January 2006 i.e. the date from which the recommendations of the 6th Pay Commission were made applicable to the full time college Teachers. While disposing of a bunch of the writ applications being the Special Civil Application No.10240 of 2012 and allied matters decided on 8th September 2015, I observed in para 58, 59 and 60 as under:
"58. The matter could be looked at from a different angle. I have already discussed about the disparity in the salary between the two classes of the employees. An appropriate salary to a part time lecturer will ensure that such part time lecturer would work sincerely and dedicatedly. If a part time lecturer works with heart burning having regard to the enormous disparity in the pay scale it will have a direct effect on his performance i.e. quality of the teaching. Therefore, what has been recommended by the UGC for the part time lecturers although may not be binding to the Government but still is very much essential for maintaining the standards of teaching of the teachers and the taughts.
59. The common ground urged as regards the financial implications also does not merit consideration. It was sought to be argued before me on behalf of the State Government that this Court should consider the matter from different angles applying the practical experience and factual contexts before arriving at any decision. To put in other words, the State Government wants the Court to take a pragmatic approach in this type of matters. I am unable to record my concurrence there too. Pragmatic does not necessarily be deprivation of the legitimate claims of the weaker sections of the society. The submissions, if I may say with respect, is totally misplaced and does not warrant any further discussion thereon.
60. I may also quote with profit the observations made by the Supreme Court in the case of All India Judges Association v. Union of India, Page 46 of 72 HC-NIC Page 46 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT AIR 1993 SC 2493.
"The contention with regard to the financial burden likely to be imposed by the directions in question is equally misconceived. Firstly, the Courts do from time to time hand down decisions which have financial implications and the Government is obliged to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden. Thirdly, compared to the other plan and nonplan expenditure, we find that the financial burden caused on account of the said directions is negligible. We should have thought that such plea was not raised to resist the discharge of the mandatory duties. The contention that the resources of all the States are not uniform has also to be rejected for the same reasons. The directions prescribe, the minimum necessary service conditions and facilities for the proper administration of justice. We believe that the quality of justice administered and the calibre of the persons appointed to administer it are not of different grades in different States. Such contentions are illsuited to the issues involved in the present case.""
● CLAIM FOR REGULARISATION:
40 The learned counsel appearing for the writ applicants have placed
reliance on a Division Bench decision of the Bombay High Court rendered in the case of Sachin Ambadas Dawale (supra). In the case before the Division Bench of the Bombay High Court, the petitioners were Lecturers in the different departments of the Government Polytechnics in the State of Maharashtra. The petitioners were appointed in accordance with the policy of the Government of Maharashtra incorporated in the Government Resolution dated 25th July 2002 as modified by the Government Resolution dated 2nd August 2003 and 3rd October 2003 respectively. The grievance of the petitioners was that they had been in the employment of the respondent for a period ranging from three years to ten years and were not being given the permanency and the benefits of permanent appointment.
The Finance Department of the Government of Maharashtra had Page 47 of 72 HC-NIC Page 47 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT imposed a ban on recruitment in all the departments since 1998. In view of the ban, the appointments were not made in Government and non government aided educational institutions which adversely affected the education of the students. In 2001 2002 permission was granted to fill 50% to 2/3rd teaching posts but the posts could not be filled and in the academic year 2002 2003, 6453 teaching posts were vacant. In order to avoid the adverse effect on the education of the students, the Government of Maharashtra issued resolution dated 25th July, 2002 by which permission is granted to fill 2/3rd teaching posts in Technical and Highertechnical Education Department on temporary contractual basis.
The respondents had issued notification dated 25 th August, 2003 inviting the applications from eligible candidates for the posts of Lecturers in Government Polytechnic in the State of Maharashtra. As per the notification, the appointments were to be made on contract basis for the period of two years or until the candidates nominated by the Maharashtra Public Service Commission were available.
The Government of Maharashtra had issued the resolution dated 2nd August, 2003 constituting the Selection Committee for appointment of the Lecturers in the Government Polytechnics and the composition of the Selection Committee was as follows :
i) Joint Director, Technical Education Divisional Office -
Chairman.
ii) Lady representative Member,
iii) Principal of concerned Institute Member Secretary,
iv) Representative of backward classes (Engineering Graduate) Member.
v) Subject Experts (2) Member."
Page 48 of 72HC-NIC Page 48 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT The Lecturers who were appointed on contractual basis submitted a charter of their demands to the Government of Maharashtra, which was considered by the Government of Maharashtra and it was directed that those Lecturers will be continued in service on contractual basis after giving a technical break of 4 to 5 days, until the candidates regularly selected by the MPSC are available. Thirty days leave was also sanctioned for these contractual employees by the Government by resolution dated 18th February, 2006. The monthly salary of these contractual employees was increased from Rs.8,000/ to 12,000/ in case of Lecturers, from Rs.12,000/ to Rs.16,000/ in case of Assistant Professors and from Rs.16,400/ to Rs.20,000/ in case of Professors.
The principal argument canvassed on behalf of the petitioners therein was that they had been selected by a duly constituted Selection Committee by following procedure of issuing advertisement and inviting applications from all the eligible candidates and they had been working to the satisfaction of the respondents and they were entitled for the regularisation and or permanency in the posts in which they were working. On behalf of the State Government, it was submitted that the petitioners had no legal right to make the claim for regularisation by invoking the extraordinary jurisdiction of the Court. It was submitted that the petitioners were contractual employees and they accepted the employment with full knowledge that they would not be able to claim regularisation or permanency. Strong reliance was placed on the decision of the Supreme Court in the case of Secretary, State of Karnataka and others vs. Umadevi and others [AIR 2006 SC 1806 (1)].
The Division Bench, ultimately, pronounced as under:
Page 49 of 72HC-NIC Page 49 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT "10. We have considered the submissions on behalf of the petitioners and the respondents. It is undisputed that the appointments of the petitioners are as per the policy incorporated in the Government resolution dated 25th of July, 2002 in which it is laid down that the appointments will be on contractual basis and till the availability of the candidates appointed through regular selection process. However, it is important to consider that the petitioners are appointed after following the procedure of issuance of advertisement and conducting interviews by a duly constituted Selection Committee. The Selection Committee constituted as per the Government resolution dated 2nd August, 2003 comprises of highly experienced and technical persons like :
(i) Joint Director,Technical Education Department,
(ii) representative of women,
(iii) Principal of the concerned institution,
(iv) representative of backward class, and
(v) two Experts of concerned subject.
In view of the above facts, it cannot be said that the appointments of the petitioners are back door or illegal. It cannot be said that the petitioners are appointed arbitrarily or haphazardly or clandestinely without issuing advertisement and without giving an opportunity to all the eligible candidates to participate in the selection process. From the record it clearly appears to be an undisputed position that in response to the advertisement several candidates had participated in the selection process and it is the petitioners who were found eligible and suitable for the posts and as such were selected and appointed. It is not the case of the respondents that any illegalities took place during the selection process.
11. We have discussed earlier, that after the tenure of two years of the appointment of the petitioners came to an end, the respondent Government issued the resolution dated 26th October, 2005 and continued the Lecturers for the further period of two years. It is to be noted that the Government of Maharashtra has stated in the affidavit filed before this Court that it had decided to continue the services of the contractual employees after giving four to five days' break until the candidates selected through MPSC are available and that the Government of Maharashtra had decided to grant 30 days' leave to these employees and had increased monthly package of these employees. These factors show that the posts, in which these employees are appointed on contractual basis, are permanent and full time posts and the services of these employees were required by the Government of Maharashtra to discharge its "constitutional obligation" of imparting education.
Page 50 of 72HC-NIC Page 50 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT
12. The contention of the State Government as to whether the posts should be filled on a regular basis or contractual basis is a policy matter and cannot be within the domain of the judicial review of this Court is without substance. The State Government is a "Model Employer" and is obliged to follow the Constitutional Scheme. It is not in dispute that after their selection, the petitioners have worked for a period between 3 years to 10 years. In this respect we may gainfully refer to the following observations of the Hon'ble Apex Court in case of Radha Dubey V/s. Govt. of NCT of Delhi and Ors. in the order dated 16th August, 2010 in Special Leave to Appeal (Civil) No.CC10388/2010 : "We are prima facie of the view that appointment of a person on contract basis for an uninterrupted period of ten years amounts to exploitation. The State, as a model employer in a welfare State, is not expected to take advantage of its position and impose wholly unequitable and unreasonable condition of employment on the prospective employees, who do not have the choice but to accept the appointment on terms and conditions offered by the employer. This practice seems to be contrary to the ratio of the judgments of this Court in Central Inland Water Transport Corporation Ltd. and another versus Brojo Nath Ganguly and another [AIR 1986 SC 1571] and Delhi Transport Corporation versus D.T.C. Mazdoor Congress [AIR 1991 SC 101]."
It is to be noted that having observed this, the Hon'ble Apex court in the peculiar facts of the case had directed the respondents to take the petitioners back in service by an interim order. The facts of the present case are almost identical. The Government has extracted the work from the petitioners for years together after they were found eligible and suitable in the selection process, conducted by the Selection Committees, which are constituted in pursuance to the Government Resolution.
13. Insofar as the contention of the respondents that the petitioners were aware that their appointment was for a limited period on contract basis and as such they are not entitled to claim regularization is concerned, the said submission is also without substance. It is not in dispute that during this period i.e. up to 2010 the appointments which were made, were made only through the process by which the petitioners were selected. It is not as if during the said period MPSC was also conducting the selection process simultaneously. It is not therefore as if the petitioners had choice to participate in the selection process through MPSC as well as through the Committees constituted under the said Government Resolution. The petitioners had no choice but to participate in the selection process conducted through the Committees constituted under the said Government Resolution. The Hon'ble Apex Court in case of Central Inland Water Page 51 of 72 HC-NIC Page 51 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Transport Corporation Ltd. V/s. Brojo Nath Ganguly (AIR 1986 SC 1571) has observed as follows : "......... Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power...... it will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them."
It can, thus, be clearly seen that the Apex Court in the said case has held that Article 14 requires that the State action should be right and reasoned and intended to secure social and economic justice and to conform to the mandate of equality clause enshrined in Article 14 of the Constitution. It has been equally held that when an unfair or unreasonable condition is imposed by the State, the Court can very well strike it down. The Constitution Bench of the Apex Court in case of Delhi Transport Corporation V/s. D.T.C. Mazdoor Congress and others reported in AIR 1991 SC 101(1) has approved the principle laid down in the case of Central Inland Water Transport Corporation Ltd. V/s. Brojo Nath Ganguly (supra). In that view of the matter, we are unable to accept the contention of the State, on account of whose inaction, the appointments could not be made for a period of more than a decade. The petitioners had no choice but to participate in the selection process as per the said Government Resolution to get the employment.
14. In the facts of the present case, the Government did not hold selection through MPSC for a period of more than 10 years and selected the Lecturers only through the selection process as provided under the said Government Resolution and the petitioners were duly selected through that process. The respondent State has extracted the work from the petitioners for years together. Now, by efflux of time and on account of the respondent State not holding the selection process for years together, many of the petitioners have become overaged and would not be in a position to participate in the selection process through MPSC. It could be clearly seen that the issue before the Apex Court in case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) was pertaining to the appointments which were made clandestinely and without advertisement and the persons were appointed without following due selection process. The facts of the present case are totally different. In the present case the Page 52 of 72 HC-NIC Page 52 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT petitioners have been appointed after the posts were advertised, they were selected in a selection process by Committee of Experts duly constituted as per the said Government Resolution. In that view of the matter, the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) would not be applicable to the facts of the present case.
15. The submission of the Government of Maharashtra that whether the posts should be filled in on regular basis or contractual basis is a matter of policy and falls within the domain of the Government of Maharashtra (employer), does not appeal to us. It being an admitted position that the posts, in which these employees have been appointed and continued for a considerable length of time, on contractual basis, are regular and full time posts; the appointments in these posts cannot be at the whims and fancies of the Government of Maharashtra. The State cannot adopt a policy of hire and fire or use and throw.
16. In our view the submissions made on behalf of the respondents relying on the judgment in the case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) would not be applicable in the facts of the present case. It is undisputed that the posts, in which the petitioners are working, are sanctioned posts. As discussed earlier, the Government of Maharashtra had issued the resolution dated 2nd August, 2003 by which the Selection Committee came to be constituted for the selection of the candidates. The respondents have not disputed that though the petitioners were initially appointed for a fixed term, they are continued in service. It is not disputed that the leave facility is made available by the resolution dated 18th February, 2006 to such employees. The respondents have stated in their affidavit that the monthly pay to these employees has been increased. It is not disputed that the petitioners are having the qualifications required for the posts in which they are working. The respondents have not disputed that the appointments for the teaching posts are taken out of the purview of the MPSC as informed by the communication dated 29th March, 2008.
17. The submission on behalf of the respondents relying on the judgment of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) cannot be accepted in the facts of the present case. In above case, the Hon'ble Supreme Court has observed in paragraph 3 of the judgment that the States have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission "or otherwise as per the rules adopted" and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the Page 53 of 72 HC-NIC Page 53 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT post. The Hon'ble Supreme Court has observed that Courts should desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. In the present case though the petitioners are not selected through MPSC, it is undisputed that the petitioners are selected after the procedure for selection is followed and through the duly constituted Selection Committee as constituted by the Government of Maharashtra. The advertisement was issued before the petitioners were selected and all interested candidates had applied for the posts for which the petitioners are selected. Thus, it cannot be said that the petitioners have got the employment through back door entry. It cannot be said that the candidates qualified for the posts were deprived of the opportunity to compete for the selection for the posts in which the petitioners are working.
In case of Union Public Service Commission V/s. Girish Jayanti Lal Vaghela and Others reported in 2006 (2) SCALE 115 the Hon'ble Supreme Court has laid down as follows : "Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC
363)."
The said judgment is considered by the Hon'ble Supreme Court in case of Page 54 of 72 HC-NIC Page 54 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra).
18. The submissions made by Shri Khapre, learned advocate for the petitioners, regarding the discrimination of the Lecturers working in the Government Polytechnics vizaviz Lecturers working in the Private Polytechnics is not without substance. The Lecturers who are appointed in the Private Polytechnic Institutions are selected by the School Committee which comprises of the Members of the Trust which administers the Private Polytechnic Institutions. The Committee which is constituted under the Government resolution dated 2nd August, 2003 is a broad based Committee comprising of Joint Director (Technical Education), two Subject Experts, representative of women, representative having technical knowledge, a member who belongs to backward classes and the Principal of the Polytechnic Institution concerned.
The Lecturers who are appointed in the Private Polytechnic Institutions after selection through the School Committee are appointed on contractual basis as "Shikshan Sevak" for the period of three years as per the policy of the Government of Maharashtra incorporated in the resolution dated 27th April, 2000. It is not in dispute that the selection process through which the petitioners are selected is much less stringent than the selection process of the Private Polytechnic. We see no reason as to why the petitioners, who are otherwise eligible and qualified for the posts and who are selected by a duly constituted Selection Committee appointed by the Government of Maharashtra and who are appointed in sanctioned posts after the issuance of advertisement and following regular procedure of selection should not be treated at par with their counterparts in the Private Polytechnic Institutions. We are of the view that the petitioners cannot be discriminated vizaviz their counterparts working in the Private Polytechnic Institutions. We are conscious that the Lecturers working in the Government Institutions form a different class than the Lecturers working in the Private Institutions. However, when all other service conditions are similar, we are of the view that the petitioners are also entitled for the same benefits as their counterparts working in the Private Polytechnic Institutions are entitled as far as the conferment of regularization and permanency are concerned.
19. One more fact that needs to be taken into consideration is that even according to the respondent State there are more than 5000 teaching posts which are still vacant and the advertisement issued by the MPSC is only for 400 posts. It can, thus, be clearly seen that even after the candidates who would be selected through the selection process conducted by the MPSC are available, more than 4500 posts will be vacant. It is, therefore, clear that the petitioners' absorption would in no way affect the candidates who would now be selected through the MPSC. It is, thus, clear that the petitioners' continuation in service would not adversely affect the fundamental right guaranteed under Article 16 to the citizens. We are of Page 55 of 72 HC-NIC Page 55 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT the considered view that the respondent State having extracted the work from the petitioners for years together, the petitioners cannot be deprived of the right of regular employment particularly when their entry can neither be termed as "illegal" nor "back door".
20. In view of the above, the writ petition needs to be partly allowed.
21. The writ petition is partly allowed.
22. The respondents are directed to regularize the services of such of the petitioners and confer permanency on such petitioners who have completed three years' service with technical breaks. The respondents shall absorb the petitioners within a period of six weeks. Needless to state that the petitioners who are in continuous employment till 15.10.2013 shall be continued in service as regular employees.
However, in the facts and circumstances of the case, we direct that the petitioners shall be entitled to regular salary from 1st November, 2013 and would not be entitled to claim any monetary benefits for the past services rendered by them in spite of their regularization. Needless to state that since the petitioners' services are regularized, they shall be entitled to the continuity in service for all other purposes except monetary purposes from the date of their first appointment.
23. At this stage, Shri N.W. Sambre, learned Government Pleader, requests for stay to this judgment.
However, taking into consideration the facts and circumstances of the case and particularly the fact that most of the petitioners were in regular service till 15.10.2013, we are not inclined to consider the request as made."
41 The above referred Division Bench judgment of the Bombay High Court was carried in appeal before the Supreme Court by the State of Maharashtra. On 6th January 2015, the following order was passed:
"SLP(C) No.39014 of 2013 Having heard learned counsel for the parties, we find no merit in the special leave petition, it is according, dismissed. Consequently, all the I.As. are rejected."Page 56 of 72
HC-NIC Page 56 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT 42 It now stands firmly ingrained in constitutional guarantee under Article 14 for equal protection of law that its protecting umbrella reaches all areas of state action which is unreasonable and arbitrary. Arbitrariness is antithesis of equality. I remind myself of what the Supreme Court said while laying bare the far reaching third but hither to undiscovered dimension of the fundamental rights enshrined in Articles 14 and 16, one of the specie of Article 14, said in E.P. Royappa v. State of Tamil Nadu [1974 AIR 555].
"Article 14 is the genus while Article 16 is a species....The basic principle which therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. ....Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
43 From the aforesaid discussion, it is apparent that the Supreme Court has viewed the continuance of employment on temporary, casual and ad hoc basis to be an act of arbitrariness violative of Articles 14, 16 & 21 of the Constitution read in light of the Directive Principles of State Policy enshrined in Articles 39, 41 & 42 of the Constitution. The test of reasonableness in State action pervades the constitutional scheme particularly with reference to Articles 14 & 21 which confines its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action.
Page 57 of 72HC-NIC Page 57 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT 44 In this connection, following observations from the Supreme Court in Bandhua Mukti Morcha v. Union of India [1984 SCR (2) 67], also invite my attention.
"It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case (AIR 1980 SC 849) to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive principles of State Policy and particularly Clauses (e) and
(f) of Article 39 and Articles 41 and 42."
The Court went on to say after observing that the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Article 41 are not enforceable in a Court of law, it may not be possible to compel the State through judicial process to make law "But where legislation is already enacted by the State providing those requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 256 which provides that, the executive power of every state shall be so exercised as to ensure shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. The Slate is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when the belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central government is therefore bound to ensure observance of various social welfare and labour laws enacted by parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy."
45 Likewise, in Union of India v. Hindustan Development Corporation [1993 SCR (3) 128], on the interplay of Articles 14, 19 and 21 of Part III of the Constitution and Directive Principles of the State Policy, the Court said:
"now coming to the test of reasonableness which pervades the Page 58 of 72 HC-NIC Page 58 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT constitutional scheme, the Court in several cases particularly with reference to Articles 14, 19 and 21 has considered this concept of reasonableness and had held that the same finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action."
46 It may be noticed that prior to the decision in Royappa's case, the test of reasonableness in Article 14 was confined to examine case of discrimination on the touchstone of reasonableness of classification having a rationale nexus to the object sought to be achieved by such classification. But in Royappa's case, the Apex Court opined the most potent and positivist dimension of the spirit and soul of Article 14 cutting at the roots of arbitrariness, unreasonableness and unfairness in every sphere of State action.
47 After posing the question: "Now what is the content and reach of this great equalising principle", the Court observed:
"It is a founding faith, to use the words of Bose, J., "a way to life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenanced any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affect any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality."
Coming to the temporary and hoc appointments, the Court said: Page 59 of 72 HC-NIC Page 59 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT "It is also necessary to point out that ambit and reach of Articles 14 & 16 are not limit to cases where 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 Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine, it is, therefore, no answer to the charge of infringement of Articles Hand 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post."
48 The view was reiterated by the Court in Maneka Gandhi's case and Ajay Hasiya's case. In Maneka Gandhi's case the Court said:
"No attempt should be made to truncate its also embracing scope and meaning, for to do so would be to violate its magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic which the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 to must be right and just and fair and not arbitrary, fanciful or oppressive."
49 On the aforesaid premise, the requirements of the State to consider regularisation as a positivist, in its manifestation of fundamental right under Articles 14, 16 & 21 of the Constitution as animated in Directive Principles of State Policy and law enacted by Parliament on the subjects enumerated in the Concurrent list entries No. 21, 21 & 24 in the form of Industrial Disputes act, and the provisions made thereunder and the right to remedy against indefinite continuance in the service without the permanent status and regular employment resulting in unfair labour practice is a part of the Fundamental right.
Page 60 of 72HC-NIC Page 60 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT 50 To sum up the principle deduced from the long chain of decided cases it can be said to be well settled:
(i) In the matter of Government service normal rule is regular recruitment through prescribed agency, the recruitment of ad hoc or temporary hands is an exceptional leeway permitted due to exigencies of administration. In such a fact situation the endeavour will also be to replace such temporary employee by regular selected employees.
(ii) that law does not favour ad hoc or temporary employment continuing for long spells, as it breeds unhealthy and unreasonable service environment endangering industrial peace perilously affecting dignity and quality of life of those whose security of work is under constant threat.
(iii) Article 14 of the Constitution is embodiment of rule against arbitrariness and unreasonableness in the State action in all spheres of its activities. Article 21 of the Constitution which guarantees protection against deprivation of life and personal liberty includes within it the right to dignified livelihood. Article 39(d) spells out the directive principles of the State policy towards securing equal pay for equal work for both woman and man and Article 42 stipulates the Directive Principles of the State policy in securing just and humane conditions of work.
(iv) equal pay for equal work and security of employment by regularising casual employees of long duration within a reasonable period have been unanimously accepted as Constitutional goal to our policy. To this end, thrust has been that the management particularly Govt. agencies should not allow workers to remain as casual labourers or temporary employees for unreasonably long period of time.
(v) mere continuation for some period on ad hoc by itself does not give a right to permanency but where for any reason ad hoc or temporary or work charged employees are continued for fairly long spell they have a right to claim regularisation and the authorities are under obligation to consider their case for regularisation in a fair manner.
(vi) regularisation cannot be resorted to by the governmental agencies as mode of fresh recruitment to permit back door entries to frustrate the mandate of Article 16 by making a straight jacket measure of service for regularising the appointment made de hors the rules, unmindful of the circumstances under which the appointment had been made.Page 61 of 72
HC-NIC Page 61 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT
(vii) the first condition for laying claim for regularisation is availability of work on reasonably permanent basis. Mere continuance for some time of a casual or ad hoc employee does not give right to presume about need for continued employment or work charged but continuation of casual or ad hoc employee or work charged for a long duration of several years raises a presumption for need for regular permanent employment may be justified.
(viii) In situation emerging from long spell of ad hoc or temporary or casual employment of daily rated workmen, courts have consistently resorted to issue of directions for framing a scheme for regularisation of such workmen on a just and fair basis to the employer or have also issue of directions for regularising the petitioners before it as the circumstances of the case may warrant but ordinarily in the first instance an opportunity is being given to the employer himself to frame a scheme in a fair and just manner of absorbing such casual workmen on permanent basis whether in one go or in a phased manner and has considered objections thereto, if any, before according its approval to such scheme.
(ix) In considering the question of granting relief as to conferring status of permanency and emoluments and privileges attached thereto, primary consideration is existence of permanent nature of work for such casual employees to be utilised against it and the extent of absorption on regular and permanent basis depends upon the extent of regular work available against which temporary employee can be regularly employed. Regularisation or permanency is not to be resorted in case where the establishment by itself is of temporary nature; where the employment is not with the object of offering employment but for ameliorating financial condition of weaker sections of the society like employment under Jawahar Yojana or where employment has been secured or offered by committing illegalities, irregularities or fraud as in the case of Ashwani Kumar (supra) where the appointments were found to have been given to six thousand persons out of all proportion to the then existing requirement of the project for about 800 persons only, by the Director of the project Mr. Malik by committing illegalities, irregularities and fraud as per the investigation report. In which case the appointments against rules were held to be nullity and void ad initio.
51 There are judgments of the Supreme Court taking the view that the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India should not issue directions for regularisation of services of the person who is working either as daily wager, ad hoc, probationer, temporary or contractual employee, not appointed Page 62 of 72 HC-NIC Page 62 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT following the procedure laid down under Articles 14, 16 and 309 of the Constitution.
52 In the case of State of Karnataka and others vs. KGSD Canteen Employees Welfare Association [AIR 2006 SC 845], the Supreme Court deprecated the tendency on the part of Courts to direct framing of schemes for regularisation of temporary employees, the Court pronounced "the question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the Respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution of India either to frame a scheme by itself or to direct the State to frame a scheme for regularising the services of ad hoc employees or daily wages employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Article 309 of the Constitution of India. Such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Article 162 of the Constitution of India cannot prevail over a statute or statutory rules framed under proviso to Article 309 thereof".
53 I shall now deal with the decisions on which strong reliance has been placed by Mr. Jani, the learned Additional Advocate General in support of his submissions.
54 In Kishori Mohanlal Bakshi (supra), the Supreme Court laid down the abstract doctrine of 'equal pay, for equal work' has nothing to do with Article 14. In the facts of that case, the Court ruled that Article 14 could not be said to have been violated where the pay scales of Class Page 63 of 72 HC-NIC Page 63 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT I and Class II officers were different although they performed the same kind of work. There need not be any debate so far as the principle of law is concerned that for two different classes of employees performing the same kind of work if there are two pay scales, then Article 14 would not come into play. So far as the case in hand is concerned, strictly speaking, there is no need to apply the doctrine of 'equal pay, for equal work', because what is complained of is the discrimination between two sets of ad hoc Lecturers. The only difference that one set of ad hoc Lecturers was appointed before May 2008 and another after 2008. Everything remains the same like the mode of selection, qualification, etc. In such circumstances, it is difficult for this Court to say that the ad hoc Lecturers appointed after May 2008 should not be put on par with those appointed before 2008.
55 In Federation of All India Custom and Central Excise, Stenographer recognised (supra), the Supreme Court ruled that 'equal pay, for equal work' is a concomitant of Article 14 of the Constitution. But it follows that 'equal pay, for unequal work' will be a negation of that right. Equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same, but the responsibilities make a difference. In the case before the Supreme Court, the petitioners were Personal Assistants and Stenographers attached to the Heads of the Departments in the Customs and Central Excise Department of the Ministry of Finance. They had asserted that they were being discriminated visavis Personal Assistants and Stenographers attached to the Joint Secretary and Officers above them in the Ministry. The Supreme Court noticed that the differentiation was sought to be justified in view of the nature and the type of the work done i.e. on intelligible basis. In the facts of that case, the Supreme Page 64 of 72 HC-NIC Page 64 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Court ruled that the problem about equal pay could not always be translated into a mathematical formula. In the facts of that case, it was finally ruled that it was not possible to say that the differentiation was based on no rational nexus of the objects sought to be achieved. In the case in hand, the State has not pointed out any substantial difference between the two sets of the ad hoc Lecturers.
56 In Surendra Nath Pandey (supra), the Supreme Court, in the facts of that case, ruled the issue before the Supreme Court was whether persons employed on stop gap or ad hoc basis were entitled to the benefit of pay scales with increments during the period of service on daily or stop gap or ad hoc basis. The Supreme Court ruled that unless the appellants were able to establish with either under the contract, or applicable rules, or settled principles of service jurisprudence, they were entitled to the benefit of pay scales with increments during the period of their stop gap / ad hoc service, it could not be said that the appellants had the right to claim the benefit of pay scales with increments. The Court further noticed that the appellants had not put forward the claim on the basis of any rules or contract. In such circumstances, it held that the appellants had no right to claim the relief. The said decision is of no avail to the State Government, because when the Government has thought fit to grant certain benefits to one set of ad hoc Lecturers appointed before May 2008, then it is expected that the same benefits should be granted to the ad hoc Lecturers appointed after May 2008.
57 In K.D. Vohra (supra), the issue before the Division Bench of this Court was whether the ad hoc Lecturers locally appointed until the regular Public Service Commission candidates were available and continued as ad hoc without consultation with the Public Service Commission and de hors the recruitment rules, could be deemed to have Page 65 of 72 HC-NIC Page 65 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT been or could be regularised in the past by virtue of their having been continued for long years, notwithstanding the availability of the Public Service Commission selectees.
58 It is well settled that a judgment should not be read like a Statute. The Construction of a judgment should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved in a given case, and the context wherein the observations were made by the Court while deciding the case. Observation made in a judgment, it is trite, should not be read in isolation and out of context. [See: Goan Real Estate and Construction Ltd. v. Union of India, (2010) 5 SCC 388]: (2010 AIR SCW 2671)]. It is the ratio of the judgment, and not every observation made in the context of the facts of a particular case under consideration of the court, which constitutes a binding precedent. The Supreme Court in P.S. Sathappan v. Andhra Bank Ltd., AIR 2004 SC 5152 has held as follows:
"138. While analyzing different decisions rendered by this Court, an attempt has been made to read the judgments as should be read under the rule of precedents. A decision, it is trite, should not be read as a statute.
139. A decision is an authority for the questions of law determined by it. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment as is wellknown, must be read in its entirety and the observations made therein should receive consideration in the light of the questions raised before it. (See Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr., [2002] 1 SCR 621 : (AIR 2002 SC 834). Union of India and Ors. v. Dhanwanti Devi and Ors. , (1996) 6 SCC 44 : (1996 AIR SCW 4020) Dr. Nalini Mahajan v. Director of Incometax (Investigation) and Ors., [2002] 257 ITR 123 (Delhi) (2003 Tax LR 18 (Del) State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. , 1991 (4) SCC 139 , AOne Granites v. State of U.P. and Ors., 2001 AIR SCW 848 and Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors., (2003) 2 SCC 111 : (AIR 2003 SC 511) Page 66 of 72 HC-NIC Page 66 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT
140. Although, decisions are galore on this point, we may refer to a recent one in State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors., AIR 2004 SC 3894 wherein this Court held:
"... It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used."
59 There are precedents on both the sides. Few precedents I have referred to above are helpful to the writ applicants and the other to a certain extent do support the case put forward by the State Government. In my view, merely relying upon the precedents one way or the other is not going to solve the problem. The Court should consider the basic facts and circumstances and take a pragmatic view of the matter, of course, within the four corners of the law.
60 Mr. Allen, in his learned treatise "Law in the Making", has quoted from Lord Mansfield which was reaffirmed by Sir George Jessel., "The only use of authorities or decided cases is the establishment of some principle which the Judge can follow out in deciding the case before him. Simple and selfevident though this dictum may sound, it is not always kept in view. The result is that the form tends to be confused with the substance. Precedents, as has been observed by a distinguished Judge of our own time should be 'stepping stones, and not halting places'." (page 252, 1951 Edition) 61 In Tribhovandas Purshottamdas Thakkar vs. Ratilal Motilal Patel [AIR 1968 SC 372], the Supreme Court in para 13 observed:
"13. It is true that every Judge of a High Court before he enters upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that he will duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will and that he will uphold the Constitution and the laws : but there is nothing in the oath of office which warrants a Judge in ignoring the rule relating to the Page 67 of 72 HC-NIC Page 67 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT binding nature of the precedents which is uniformly followed."
62 A Division Bench of the Calcutta High Court in the case of Kooka Sidhwa and Company vs. the Commissioner of Incometax, West Bengal [AIR 1964 Calcutta 254], observed in para 11 as under:
"It is no doubt true that the task of the learned Judges of the High Court becomes very heavy where there are more than one decision of the Supreme Court on the same point, not following or overruling or explaining the other. The subsequent decision, where the earlier decision has been explained and/ or distinguished by their Lordships of the Supreme Court, presents no difficulty, but where in the later decision the attention of their Lordships of the Supreme Court to the earlier decision was not at all drawn or where in the later decision though the earlier decision is noted but it is neither expressly overruled, explained or followed, the task of the learned Judges of the High Court becomes still heavier. In my view it would be our duty, first and prime, to attempt to reconcile and harmonise all the decisions of the Supreme Court given on the same point, though the most part of our time might be occupied in attempting the said reconciliation, instead of giving our attention to the main problem arising in the case. It is also my view that no attempt should be made by us by ignoring or by passing or by not taking notice of all the Supreme Court decisions, relevant on the point, however much time the hearing of the case might take, causing the piling up of the alleged arrears of work. To do the contrary, might utmost amount to disposals but not decisions."
63 The learned counsel appearing for the writ applicants are right in submitting that the State Government should have given a serious thought to the suggestion made by the Division Bench of this Court in the order dated 24th March 2011 passed in the Letters Patent Appeal No.2986 of 2010. Way back in the year 2001, the Division Bench, observed that the State may consider to frame any scheme to relax the age and to select the qualified and experienced ad hoc Lecturers through any limited competitive examination. It seems that the Government has not thought fit to pay any heed to such suggestion of this Court. A Notification is brought to my notice dated 30th March 2011 as regards the rules framed for regulating recruitment to the post of Assistant Page 68 of 72 HC-NIC Page 68 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT Professor, Class II, in Engineering and Technology, (in different discipline) in Government Engineering Colleges, in the Gujarat Educational Service (Collegiate Branch). The said rules are called "The Assistant Professor, ClassII, in Engineering and Technology (in different disciplines) Recruitment Rules, 2011". In the said rules, there is a proviso to Rule 3, which reads as under:
"3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall
(a) not be more than 35 years of age:
Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967.
(b) a bachelors degree and a postgraduate degree in relevant branch of Engineering and Technology with first class or equivalent either in Bachelor of Engineering or Technology and Master of Engineering or Technology obtained from any of the Universities incorporated by or under the Central or State Act in India or any other educational institution recognised as such or declared as deemed University under section 3 of the University Grants Commission Act, 1956 or possess an equivalent qualification recognised by the Government;
(ii) the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967;
(iii) adequate knowledge of Gujarati or Hindi or both.
Explanation:
(i) if a class or division is not awarded, minimum 60% of aggregate marks shall be considered equivalent to first class, or
(ii) if a grade point system is adopted, the Cumulative Grade Point average (CGPA) shall be converted in equivalent marks as below:
Grade Point Equivalent Percentage
6.25 '55%
6.75 '60%
7.25 '65%
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7.75 '70%
8.25 '75%
64 I am of the view that the aforenoted Notification is in no manner
helpful to the writ applicants and could hardly be said to be in line with the suggestion of this Court referred to above. I could have followed the Division Bench decision of the Bombay High Court referred to above, which came to be affirmed by the Supreme Court, and could have issued directions in tune with one issued by the Division Bench of the Bombay High Court as regards regularisation in service. However, for the present, I am not inclined to issue any mandamus in this regard. At the same time, I am of the firm view that the ad hoc Lecturers appointed after May 2008 should be put on par with the ad hoc Lecturers appointed prior to May 2008 and should be paid the pay scale and other benefits accordingly. In the same way, I am of the view that the contractual Lecturers should be paid the minimum of the pay scale so far as the post of Lecturer is concerned with all other allowances attached to the same.
65 In the result, all the writ applications succeed in part. The State is directed to put the ad hoc Lecturers appointed after May 2008 on par with the ad hoc Lecturers appointed prior to May 2008. The ad hoc Lecturers appointed after May 2008 shall be paid the salary and other allowances on par with the same received by the ad hoc Lecturers appointed prior to May 2008. Such benefits shall be granted to them with effect from January 2015 onwards. It is directed that the contractual Lecturers shall be paid the minimum of the pay scale so far as the post of Lecturer is concerned with all other allowances attached to the same with effect from January 2015.
Page 70 of 72HC-NIC Page 70 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT 66 I may only say that it will be in the fitness of things if the State Government once again gives a serious thought to the suggestion made by this Court as contained in the order dated 24th March 2011 passed in the Letters Patent Appeal No.2986 of 2010. The reason I am saying so is because many ad hoc Lecturers would be retiring shortly and if they retire as ad hoc, then probably, they would not get anything towards their retiral benefits. The retiral life of such Lecturers will be miserable and extremely hard. I hope and trust that the State Government will definitely look into this issue to take care of the interest of the ad hoc Lecturers working past couple of years.
67 The State Government shall report to this Court the result of any deliberations as regards the suggestion of this Court as contained in the order dated 24th March 2011 passed in the Letters Patent Appeal No.2986 of 2010, after a period of eight weeks.
68 The Registry shall notify all the writ applications before this Court after eight weeks to look into the report of the State Government.
(J.B.PARDIWALA, J.) FURTHER ORDER After the judgment is pronounced, Mr. Jani, the learned Additional Advocate General fervently urged that the operation of this judgment may be stayed for a period of four weeks. This fervent appeal is opposed by Mr. Pujara as well as Mr. Jadeja, the learned counsel appearing for the writ applicants. I do not see any good reason to stay the judgment and order pronounced today from its operation. Instead, let the directions issued by this Court be given effect to within a period of two months from today. Direct service is permitted.
Page 71 of 72HC-NIC Page 71 of 72 Created On Thu Sep 08 01:05:15 IST 2016 C/SCA/8152/2015 CAV JUDGMENT (J.B.PARDIWALA, J.) chandresh Page 72 of 72 HC-NIC Page 72 of 72 Created On Thu Sep 08 01:05:15 IST 2016