IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATIONS Nos 2843, 2919, 2924 and 2780 of 1991 and SPECIAL CIVIL APPLICATIONS NOS.1971, 6909, 5872 and 2074 of 1988 and SPECIAL CIVIL APPLICATIONS NOS.7331 and 7449 of 1990 and SPECIAL CIVIL APPLICATION NO.2001 of 1989. For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MAHENDRAKUMAR R PATEL Versus SECRETARY TO GOVERNMENT -------------------------------------------------------------- Appearance: MR PV HATHI with Mr.Dhirendra Mehta and Mr DP Vora for Petitioners Ms. Hansa Punani, learned AGP for the respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA Date of decision: 09/03/2001 COMMON ORAL JUDGEMENT 1. Through these 11 petitions common grievance has been raised by ad-hoc appointees as Lecturers in various Colleges against the appointments being given to them for the terms of academic session only denying them the salary for the vacation period, subjecting them to termination at the end of academic session and reappointing them in the next session and termination of their services although no candidates selected by thye G.P.S.C. are available in the respective branch/speciality /subject and they claim continuity of service from the date of their initial appointment. I, therefore, propose to decide all these 11 Special Civil Applications by this common judgment and order as under: 2. Facts relating to Special Civil Application No.2843/91 are as under:- This is a petition filed by two petitioners, namely, Mahendrakumar R.Patel -Lecturer in Gujarati, Govt. Arts College, at Vansada, District - Valsad and Kumari Manjulaben D. Chauhan - Lecturer in Gujarati, Govt. Arts College, at Vansada, District - Valsad. Both these petitioners, claiming that they had been selected by Local Selection Committee as Lecturers in Gujarati subject for the Government Arts College, Vansada, District Valsad, filed the present Special Civil Application stating that their appointment orders have been issued by the Principal and this appointment was only upto the end of the first academic term of 1990-91 and that their services will be liable to termination when the candidates selected by the Public Service Commission report for duties or when these vacancies are filled in by transfer of lecturers from other Govt. Colleges. It is their case that no candidate selected by Public Service Commission had reported on duty and no Lecturers from any other Government College were transferred and posted against the posts held by them; yet the respondent No.3 i.e. Principal. Govt. Arts College at Vansada, District Valsad terminated the services of the petitioners with effect from 13.10.90 i.e. on completion of the first term of the academic year 1990-91. It is also stated by them that the post of Lecturers held by them were sanctioned by the Government on long term basis. It is their say that they were again appointed afresh for the second term of 1990-91 and they were appointed upto 5.5.91 on temporary basis for the second term of 1990-91 and the posts have been duly sanctioned by the Government on long term basis. Apprehending that their services will be terminated with the end of the second term of the Session on 5.5.91 the present Special Civil Application dated 20.4.91 was filed before this court on 20.4.91. When the matter came up before the court on 22.4.91 Rule was issued and the interim relief was also granted in the terms that the respondents are restrained from terminating the services of the petitioners only on the ground that the period of their appointment had expired coupled with the condition that as and when any candidate regularly selected by G.P.S.C. or other regular appointee is available and such appointee is required to be placed vice the petitioners, it would be open to terminate petitioners' services on that ground. It was also made clear that if there is any other lawful reason such as abolition of the post, it will be open for the respondents to terminate the services of the petitioners on that ground. Thereafter, petition has remained pending for all these years since 1991 but none of the three respondents have cared to file any reply whatsoever. No application was filed even for the purpose of modification or vacation of the interim order and the learned counsel for the petitioners submits that both these petitioners are still continuing as Lecturers in Gujarati in the Government Arts College at Vansada, District - Valsad without any interruption. Mr.D.P.Vora, learned counsel for the petitioners, has submitted that the selections were held for the post of Lecturers in Gujarati in the year 2000 and the G.P.S.C. has already sent its recommendation to the Government. However, so far no appointments have been made. He is not in a position to say as to whether the present two petitioners had appeared in these selections before the G.P.S.C. or not. 3. Facts relating to Special Civil Application No.1971/88 are as under:- This Special Civil Application was filed by two petitioners, namely, Smt.Jyoti K.Shah and Shri Sureshchandra K.Trivedi, Lecturer in Management in the Faculty of Commerce, Gujarat College, Ahmedabad and Lecturer in Commerce, Gujarat College, Ahmedabad respectively, claiming that they had been appointed as Lecturers on ad hoc basis pending the availability of the candidates to be selected by G.P.S.C. It is their say that the post held by them carry the pay scale of Rs.700-1600 with usual allowances, which was due to be revised retrospectively with effect from 1.1.1986 in pursuance of the recommendations of the Malhotra Commission. Both these petitioners claim that they possess educational qualifications as prescribed by Gujarat University to hold the post of lecturers. Petitioner No.1 has claimed that she had worked as lecturer from 1.8.84 till the end of the first term; 17.7.86 to 25.10.86; January 1987 till the end of second term; 1st January 1988 to 27/30 April 1988. Petitioner No.2 has claimed that he had worked from 8.12.85 to 24.12.85; 2.1.86 to 7.5.86; 17.7.86 to 25.10.86; 18.11.86 to 24.12.86; January 1987 to end of the term; 1st January 1988 to 29/30th April 1988. The petitioners have also stated that the posts held by them are full time posts on regular establishment sanctioned on long term basis and that they are also eligible for appointment on these posts on regular basis. The petitioners claim that although they had been appointed on ad hoc basis, such an appointment has in fact been made after their selection by a Selection Committee and that they had topped the select list. These petitioners filed the present petition dated 19.4.88 on 20.4.88 before this court with the prayer that the petitioners be deemed to have always been in continuous service ever since their initial appointments and they be held eligible for all the incidental benefits of continuity of service including salary for the vacations until they or any one of them happen to be displaced by the candidates selected by G.P.S.C. When this matter came up before the court on 21.4.88 rule was issued and by way of ad interim relief it was directed that the petitioners' services shall not be terminated and further that as and when regularly selected candidates by G.P.S.C. or any other regular appointees are available and such candidates are required to be appointed in place of petitioners, it will be open to the respondents to move this Court for modifying and/or for vacating ad interim relief. The respondents were also directed to file affidavit in reply latest by 31.7.88. This petition has also been pending since 1988 and even after the pendency of more than 12 years, none of the respondents have cared to file any reply whatsoever. This interim relief dated 21.4.88 was modified on 12.10.88 to the effect that in case any regularly selected candidate by G.P.S.C. or any other regular appointees are available and such persons are required to be appointed in place of the petitioners, Department will be at liberty to appoint them even without taking permission of this Court. It is given out that Mr.M.K.Joshipura, through whom the present Petition was filed, had expired during the pendency of the petition and, therefore, notice was sent to the petitioners and the same had been duly served upon the petitioners, but no appearance of any advocate has been filed on behalf of the petitioners in this matter. In this matter the averments made in the petition have remained uncontroverted. 3. Facts relating to Special Civil Application No.2919/91 are as under:- Petitioner in this case, namely, Ashokkumar Lallubhai Patel, claims to be selected by a Selection Committee for appointment as Lecturer in Sanskrit. He was appointed as such in the Govt. Arts College, Vansada, District - Valsad. The appointment order dated 11.9.90 has been placed on record as Annexure "A". As per this appointment order, the petitioner's appointment was to end with the first academic term of the year 1990-91, but it was further mentioned in the body of the appointment order that services of the petitioner will be terminated when the candidates selected by G.P.S.C.. report for duty or when the vacancy is filled in by transfer. After the petitioner was appointed as Lecturer in terms of the appointment order dated 11.9.90 no candidates selected by G.P.S.C. had reported for duty and no Lecturer from any other Government College was transferred or posted against any of these posts on which the petitioner was working. Yet the services of the petitioner were terminated with effect from 13.10.90 on completion of the first term of the academic year 1990-91 and the post of Lecturer, on which the petitioner was appointed, was sanctioned by the Government on long term basis. The petitioner's say is that respondent No.3 i.e. Principal, Govt. Arts College, at Vansada, District Valsad had no authority to terminate the services of the petitioner. It is also the case of the petitioner that he was again appointed afresh for the second term of 1990-91 by the Principal, Govt. Arts College, at Vansada, District - Valsad as Lecturer in the same subject and new appointment order given to the petitioner appointing him upto 5.5.91 on temporary basis for the second term of 1990-91 has been filed with the Petition as Annexure "B". Apprehending that the petitioner's services were likely to be terminated from 5.5.91, the present petition was filed on 22.4.91 and when the matter came up before the Court on 23.4.91,Rule was issued and interim order was passed to the effect that the respondents were restrained from terminating the petitioner's services on the ground that the period of appointment had expired. It was further ordered that as and when any candidate regularly selected by G.P.S.C. or other regular appointee is available and such appointee is required to be placed vice petitioner, it would be open to terminate petitioner's service on that ground. It was also made clear that if there is any other lawful reason such as abolition of post, it will be open to the respondents to terminate the petitioner's services on that ground. In this matter affidavit in reply dated 21.9.95 has been filed by one Shri Shantilal B. Dhobi,Deputy Director of Higher Education. It has been pleaded that an ad hoc appointee has no right and that the petitioner is not falling within the sphere and zone of Government servant and/or civil servant. It has also been pleaded in this affidavit in reply dated 21.9.95 that the Government had issued executive instructions vide letter dated 6.1.90 making it clear that the person who is regularly employed should be given increment and leave benefits as per BCSR 50. However, even this reply is conspicuously silent as to whether any selections were held by the G.P.S.C. or not. 4. Facts relating to Special Civil Application No.2924/91 are as under:- The petitioner, namely, Hitendrakumar Y. Kharvasia, in this case has stated that he had been selected on 13.1.90 by a Selection Committee as a part time Lecturer in History and appointed in the Government Arts College, Vansada, District - Valsad as such on 15.1.90. As per the appointment order, the appointment was only upto the end of the second academic term of 1989-90 and he was appointed on fixed salary of Rs.900/-per month. It was also mentioned that his services will be terminated when the candidates selected by P.S.C.. reports for duty or when vacancy is filled in by transfer of Lecturer from other Government College. It is the say of the petitioner that no candidate selected by P.S.C. had reported for duty. No Lecturer from other Government College was transferred or posted against the post held by him and yet the respondent No.3 i.e. Principal, Govt. Arts College, Vansada, District Valsad terminated the services of the petitioner with effect from 30.4.90 on completion of the second term of academic year 1989-90. The termination order had been annexed with the petition as Annexure "B". The petitioner was again appointed from 26.6.90 as full time Lecturer in History against the part time vacancy, which was subsequently made full time from 26.6.90. A copy of the appointment order dated 26.6.90 has been enclosed as Annexure "C". As per the order Annexure "C" the appointment was made against the part time vacancy which was created upto 25.6.90 but the appointment was given only upto 30.4.90 so that pay is not required to be paid during vacation. He was again appointed from 26.6.90 as per order Annexure "C". It is also the case of the petitioner that after his reappointment no candidate selected by P.S.C. reported on duty and no Lecturer from any Government College was transferred against the post held by the petitioner and yet the services of the petitioner were terminated with effect from 13.10.90, on completion of the first term of academic year 1990-91. The petitioner was again appointed for the third time as Lecturer in History for second term of academic year 1990-91 in terms of the order Annexure "E" dt.5.11.1990, when the post of Lecturer was sanctioned by Government on long term basis. The petitioner, therefore, filed the present petition asking for the relief to continue him in service till the candidate selected by P.S.C. becomes available. The Petition dated 22.4.91 was filed on 22.4.91. When this petition came up before the Court on 23.4.91, Rule was issued and interim relief was granted to the effect that respondents are restrained from terminating the petitioner's services only on the ground that the period of his appointment had expired. However, as and when any candidate regularly selected by G.P.S.C. or the regular appointee is available and such appointee is required to be placed vice petitioner, it will be open to terminate the petitioner's services on that ground and it was also made clear that if there is any lawful reason such as abolition of post, it would be open for the respondents to terminate the petitioner's services on that ground. In this petition also, which is pending since 1991, no reply has been filed. However, learned counsel Mr. D.P.Vora appearing on behalf of petitioner has orally submitted that selections were held by G.P.S.C. in the year 2000 and recommendations have been sent to the Government, but so far no appointments have been made and the petitioner has been continuing as Lecturer ever since his appointment as stated above and is continuing till this date. 5. Facts relating to Special Civil Application No.6909/88 are as under:- The petitioner Miss Hina Manoranjan Kikani has come with the case that she holds a 2nd Class Degree in M.A. in Sanskrit of the Saurashtra University. She had secured 57% marks on the aggregate in the M.A.Examination held in April 1983. She had also cleared B.A.Examination with Sanskrit as a special subject having obtained 70% of total marks in June 1981 and that she possesses the qualification prescribed by the University for the affiliated College teachers. Her date of birth is 26.2.61 and at the time of filing the petition she was over 27 years of age. That the Government had been making appointments on the post of Lecturer in several faculties in Gujarat State Educational Service Class (II) in the pay scale of Rs.700-1600 subject to revision retrospectively from 1.1.86 in pursuance of Malhotra Commission,pending availability of candidates selected by G.P.S.C. The petitioner says that she is one of the candidates so appointed as Lecturer. She was appointed as Lecturer in Sanskrit in the Govt.Arts & Commerce College, Ahwa, Dangs for the second term of academic year 1987-88 by order dated 1.1.88, Annexure "A" with the petition. As per this order, the post was sanctioned upto the end of second term, but it was a long term post and the petitioner had in fact been reappointed to that very post during the first term of the academic year 1988-89 commencing from July 1988, although she has been deprived of the benefit of Vacation from May 1988 to June 1988. While she was so working in the Govt. Commerce College, Ahwa she got another order from the Principal, R.R. Lalan College, Bhuj appointing her as Lecturer in Sanskrit in the R.R. Lalan College, Bhuj for the period ending first term of the academic year 1988-89 by order dated 13.8.88 - Annexure "C" with the petition. On 18.8.88 she joined at R.R. Lalan College, Bhuj on being relieved on 17.8.88 and has been continuing as such.The present Special Civil Application was filed by the petitioner on 13.10.88 with the prayer that the petitioner be deemed to be continuing in service ever since her initial appointment as Lecturer in the Government Commerce College, Ahwa, Dangs effective from 6.1.88 and that she be held eligible for all the incidental benefits of continuity of service, including the vacations, until she happens to be displaced by a candidate selected by G.P.S.C. When this Petition came up before the Court on 21.10.88 rule was issued and ad interim relief was granted that the petitioner's services shall not be terminated and it was clarified that as and when regularly selected candidate by G.P.S.C. or any other regular appointee is available and such Candidate is required to be appointed in place of the petitioner, it will be open for the respondents to terminate the services of the petitioner even without seeking any clarification from the Court. While this ad interim order has remained in force through-out and the petition is pending since 1988, no reply to the petition has been filed by any of the respondents. 6. Facts relating to Special Civil Application No.5872/88 are as under:- The petitioners Shri Asit Bhupatrai Bhatt, Shri Girishkumar Chhaganlal Bhimani, Shri Rajesh Mansukhlal Bhavsar, Shri Bharat Gokaldas Maniyar, Miss Nita P. Patak and Miss Manju B. Agrawal have filed this petition alleging that in the Government Arts, Science, Commerce and Law Colleges there are posts of Lecturers in the Gujarat Educational Service (Collegiate Branch) Class-II in the pay scale of Rs.700-1600, which is subject to revision retrospectively from 1.1.86 in pursuance of the recommendations of the Malhotra Commission. In the Statement Annexure "B" the details about the petitioners appointment and termination have been given to show that these petitioners were appointed and terminated between 1986 to 1988 and the present petition was filed by them on 30.8.88 with a prayer that petitioners be deemed to have been appointed on regular basis ever since their initial appointment and they may be held eligible for all incidental benefits, including salary for the vacation. When this petition came up before the Court on 11.10.88 the Court passed a detailed order running in several paragraphs while issuing Rule and granting interim relief and the same is reproduced as under:- "ORAL ORDER: Rule. 2. Heard the parties with regard to interim relief. By way of interim relief it is directed that the petitioners' services shall not be terminated. If and when regularly selected candidates by G.P.S.C. or any other regular appointees are available and such candidates are required to be appointed in place of petitioners, it will be open to the respondents to terminate the services of the petitioners. Even otherwise, after filing affidavit-in-reply or at any time after the service of notice of this order it would be open to the respondents to request the Court for modifying and/or for vacating the interim relief. Respondents are directed to file affidavit-in-reply latest before November 30, 1988. Moreover, if there is any other lawful reason for termination of service of the petitioners except on the ground that the period of their ad hoc appointment has expired, the respondent authority will be at liberty to take appropriate steps in accordance with law. 3. Today there are three other similar matters on Board. The learned counsel for the respondents states that there are other three or four matters filed by different advocates in the same or similar subject matter. Therein also similar interim orders have been passed. Thus there are about seven to eight such matters and in each matter more than one petitioner appear to have filed the petition. 3. The picture that emerges from the record of the petition and from the aforesaid facts is not very happy. In almost all colleges ad hoc appointments are made for fixed time. The aforesaid practice has been depreciated by the Supreme Court in the case of Ratanlal and others vs. State of Haryana and others,AIR 1987 SC 478. In that case the Supreme court gave directions to the State Government which are contained in para 2 of the judgment, and the same read as follows: "We, therefore, direct the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on ad hoc basis are now working and to allow all those teachers who are now holding these posts on ad hoc basis to remain in those posts till the vacancies are duly filled up. The teachers who are not working on such ad hoc basis if they have the prescribed qualification may also apply for being appointed regularly in those posts. The State Government may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of this system of 'ad hoc' appointments." As far as the State of Gujarat is concerned, it appears that the first matter of this nature came up before this Court on February 22,1988. Therein this Court (Coram: D.H.Shukla,J), after admitting the matter, granted interim relief, but made it clear that the petitioners may be displaced by the nominees of G.P.S.C. or by the regular appointees transferred from other places. In subsequent petitions, i.e. special civil application No.1862 of 1988 and 1971 of 1988 which came up before me on April 15, 1988 similar directions were given by way of interim relief. In the aforesaid two petitions which were admitted by me in the month of April, 1988 it was also directed that the Government should file affidavit-in-reply latest before July 31, 1988. It is candidly stated by the learned counsel for the respondents that so far the affidavit-in-replies have not been filed in the aforesaid matters. 4. It appears that the question which affects the entire academic world is not considered seriously by the Government. The practice of making ad-hoc appointments at the college level adversely affects both the teachers as well as the students, which consequently results in lower standards of education. It is not necessary to articulate the evils which are being fostered on account of such practice. Suffice it to say that such practice is required to be stopped immediately and should not be resorted to except in rare cases when the administrative exigencies may require. 5.