SCA/5917/2000 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5917 of 2000 With SPECIAL CIVIL APPLICATION No. 10561 of 2000 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SECRETARY/MANAGER RAJKOT KELAVANI MANDAL & 1 - Petitioners Versus NAYANBHAI NANDLALBHAI JOSHI MARUTIKRUPA, & 3 - Respondents ========================================================= Appearance : Special Civil Application No.5917/2000 MR MEHUL S SHAH for Petitioners MR AY KOGJE for Respondent : 1, MS TN KACHCHHI, AGP, for Respondents : 2 & 3. Special Civil Application No. 10561/2000 MR AY KOGJE for petitioner. MR MEHUL S SHAH for respondent Nos.1 & 2 MS TN KACHCHHI, AGP, for respondent Nos.3 & 4. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI SCA/5917/2000 2/14 JUDGMENT Date : 29/08/2008 ORAL COMMON JUDGMENT In both these petitions, the judgment and order dated 16.2.2000 passed by the Gujarat Higher Secondary Education Tribunal, in Application No. 128/1995, has been impugned by the Secretary/Manager, Rajkot Kelavani Mandal, and Nayanbhai Nandlal Joshi respectively, though on different grounds. The petitions are, therefore, being heard together and decided by a common judgment. 2. The petitioner in Special Civil Application No.5917/2000 is the Rajkot Kelavani Mandal. It is the case of the petitioner in this petition that the respondent No.1 (who is the petitioner in Special Civil Application No.10561/2000) was working as a part-time ad hoc craft-teacher purely on temporary basis for a fixed amount of remuneration. The case of the petitioner is that the respondent No.1 was not qualified and since no appointment-order was ever issued to him, his appointment was not regular and his services could be terminated at any point of time, without notice. The respondent No.1 filed Application No.128/1995 before the Gujarat Higher Secondary Education Tribunal [“The Tribunal” for short] for continuing him SCA/5917/2000 3/14 JUDGMENT in service and for payment of salary and allowances as per the scale paid to the regularly appointed employees. By the impugned order dated 16.2.2000, the Tribunal came to the conclusion that though the appointment of the respondent No.1 herein could not be held to be a regular one, but, since the petitioner-School was taking services of a craft-teacher from the respondent No.1, the salary of a regularly appointed craft-teacher ought to have been paid to the said respondent. A direction was issued to the petitioners to make the payment of difference in salary to the respondent No.1 within a period of 60 days of passing of the order. Being aggrieved by the above-stated order of the Tribunal, the petitioners have preferred Special Civil Application No.5917/2000, with the prayer to set aside the impugned order of the Tribunal so far as it directs the petitioners to make the payment of difference in salary to the respondent No.1 therein. 2.1 An affidavit-in-reply was filed by the respondent No.1 denying the averments made in the said petition. It is averred in the said affidavit that the respondent No.1 was appointed as a craft-teacher on 20.8.1987, as there was necessity of a craft-teacher in the petitioner-school and as he is appropriately qualified to hold the said post. It is further SCA/5917/2000 4/14 JUDGMENT averred in the reply that after being appointed, the respondent No.1 had continued to work as a craft-teacher and has performed the duties of craft-teacher equivalent to those performed by regularly appointed teachers and still the petitioner- school is depriving him of the regular pay-scale. It is further averred that the burden to prove that the appointment of the respondent No.1 is not a regular one, should be discharged by the petitioners, which has not been done and, therefore, the services of the respondent No.1 should be continued and regular pay-scale should be granted to him. 2.2 A rejoinder has been filed on behalf of the petitioners stating that the services of the respondent No.1 have been discontinued with effect from March, 2000. It is stated in the rejoinder that the appointment of the respondent No.1 was not a regular one and no appointment order has ever been issued to him. His services were utilized only as a stop- gap arrangement, which could have been discontinued at any point of time and as the appointment of the respondent No.1 is not regular, he cannot be equated with regularly appointed teachers and the pay-scale, which is admissible to such regularly appointed teachers, cannot be granted to him. SCA/5917/2000 5/14 JUDGMENT 3. Special Civil Application No. 10561/2000 has been filed by the respondent No.1 in Special Civil Application No.5917/2000 challenging the order dated 16.2.2000 rendered in Application No.128/1995 passed by the Gujarat Higher Secondary Education Tribunal to the extent that the said order holds that the appointment of the petitioner is not a regular one. 3.1 It is averred in the said petition that the petitioner possesses the requisite qualifications of SSC and GCC in Stenography in Gujarati and has been rendering his services in the respondent No.1-School since 20.8.1987, without any break and to the satisfaction of the respondent-school. The grievance of the petitioner is that no appointment-letter has been given to him, even though the respondent-school has issued certificates to the effect that the petitioner is working as a craft-teacher in the said school. It is averred in the petition that the petitioner approached the Gujarat Higher Secondary Education Tribunal praying for a direction to the respondent- school that his services may not be terminated and salary and other benefits/ allowances as per the Government rules and regulations be paid to him. It is stated that, although the Tribunal has granted relief qua the payment of regular pay- scale to the petitioner, however it has been held that the SCA/5917/2000 6/14 JUDGMENT appointment of the petitioner is irregular and, being aggrieved by this part of the order of the Tribunal, the petitioner has filed the present petition. 4. I have heard Mr.Mehul S.Shah, learned counsel for the petitioners in Special Civil Application No.5917/2000 and Mr.A.Y.Kogje, learned counsel for the petitioner in Special Civil Application No.10561/2000 as well as Ms.Tanuja N.Kachchhi, learned Assistant Government Pleader for respondent Nos.2 & 3 in Spl.C.A.No.5917/2000 and respondent Nos.3 & 4 in Spl.C.A.No. 10561/2000, and perused the averments made in both the petitions as well as the documents on record. 5. Mr.Mehul S.Shah, learned counsel for the petitioners in Special Civil Application No. 5917/2000 has submitted that the respondent No.1 has no right to be continued as a craft- teacher, much less to be granted regular pay-scale, as he is neither qualified, nor has he been appointed by following any prescribed procedure and no appointment order has ever been issued to him. It is submitted that the services of the respondent No.1 have been taken as a temporary, stop-gap arrangement and he has been paid a fixed amount for the work done by him. Emphasising the submission that the SCA/5917/2000 7/14 JUDGMENT appointment of the respondent No.1 has not been made as per procedure and is de hors the Rules, it is submitted by Mr. Mehul S. Shah that under these circumstances, the Tribunal could not have passed an order directing the payment of regular pay-scale to the said respondent. The attention of this Court has been drawn to the document annexed as Annexure- AA to Special Civil Application No.5917/2000, which contains the deposition of the respondent No.1 before the Tribunal. A perusal of the same goes to show that the respondent No.1 has himself admitted that no appointment order has ever been issued to him and he is working of his own free will. It is clear that the said respondent has admitted, in terms, that he has neither applied for the post of craft-teacher, nor has any interview taken place, and no appointment order has ever been issued to him. He has admitted that he is aware of the fact that he has not been appointed by the Selection- Committee and has stated that he has offered his services voluntarily. 6. It is evident from the affidavit-in-rejoinder filed by the petitioner-school that the services of the respondent No.1 have been dispensed with, with effect from March, 2000. SCA/5917/2000 8/14 JUDGMENT 7. Mr.A.Y.Kogje, learned counsel for the petitioner in Special Civil Application No. 10561/2000 has based his arguments on the premise that the burden of proving that the appointment of the petitioner is an irregular one, should have been discharged by the respondent-school and that having not been done, the services of the petitioner should have been continued as a craft-teacher and the regular pay-scale is rightly granted to him by the Tribunal. It is submitted by Mr.Kogje that the petitioner has rendered his services as a craft-teacher for eight years and has performed the same duties that a regularly appointed teacher would have performed. It is further submitted that the provisions of law relied upon by the Tribunal, viz. Section 35(7) of the Gujarat Secondary Education Act, are not applicable to the case of the petitioner, since his case would be governed by the Gujarat Higher Secondary Education Act and, therefore, that part of the order of the Tribunal, holding the appointment of the petitioner to be irregular, deserves to be quashed and set aside. 8. After perusing the averments made in both petitions as well as the documents annexed thereto, it is crystal-clear that the appointment of the petitioner is de hors the prescribed SCA/5917/2000 9/14 JUDGMENT procedure and the rules. No appointment-letter has ever been issued to the petitioner, which is admitted by the petitioner himself. This fact is also recorded by the Tribunal in the impugned order. Not only that, but the petitioner has deposed before the Tribunal that he is rendering services voluntarily and he has never made an application for appointment, nor has he been selected as a craft-teacher by the Selection- Committee. Although it may be true that the school has issued certificates to the petitioner to the effect that he is working as a craft-teacher on daily-wage basis, such certificates cannot legitimize the irregular status of the petitioner's appointment. After having come to a specific conclusion, on the basis of evidence and other material on record, that the appointment of the petitioner is not a regular one, the Tribunal has proceeded to direct the school authority to make payment of regular pay- scale to the petitioner only on the ground that he was working as a craft-teacher. In my considered view, such a direction could not have been given in the light of the settled law in this regard. In Secretary, State of Karnataka and others v. Umadevi(3) and others, (2006)4 SCC 1, the Supreme Court has held as under : “Persons who get employed, without the following of SCA/5917/2000 10/14 JUDGMENT a regular procedure or even through the backdoor or on daily wages, have been approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called `litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. Such an argument fails when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. Merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. It is not as if the person who accepts an SCA/5917/2000 11/14 JUDGMENT engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain- not at arm's length – since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. SCA/5917/2000 12/14 JUDGMENT When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the temporary, contractual, casual or daily-wage employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. It is, therefore, not possible to accept the argument that the State action in not regularising the employees was not fair within the framework of the rule of law. Orders for absorption, regularisation or permanent continuance of such employees are passed apparently in exercise of the wide powers under Article 226 of the Constitution. The wide powers under Article 226 were not intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution. It is time that the courts 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. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article SCA/5917/2000 13/14 JUDGMENT 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.” The above principles of law enunciated by the Supreme Court are squarely applicable to the present case. 9. The petitioner has not been issued any appointment order, meaning thereby that the status of the petitioner is not that of a regularly appointed employee. It is evident that the appointment of the petitioner has been made as a back-door- entry, de hors the rules and, therefore, the Tribunal could not have directed that the pay-scale admissible to regularly appointed craft-teachers be given to the petitioner. 10. That part of the order of the Tribunal whereby it is held that the appointment of petitioner is not a regular one, is upheld by this Court. However, the direction of the Tribunal to pay the regular pay-scale to the petitioner, after holding that the appointment of the petitioner is not a regular one, cannot be sustained. SCA/5917/2000 14/14 JUDGMENT 11. In the final result, Special Civil Application No.5917/2000 succeeds, whereas Special Civil Application No.10561/2000 fails. The impugned order of the Tribunal dated 16.2.2000 to the extent it directs the grant of pay-scale equivalent to the pay-scale paid to the regularly appointed craft-teachers and the consequential direction of making payment of the differential amount, is hereby quashed and set aside. Both the petitions are disposed of in the above terms. Rule is made absolute in Special Civil Application No. 5917/2000 and is discharged in Special Civil Application No.10561/2000. No orders as to costs. [Smt.Abhilasha Kumari,J.] (patel)