IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPCIAL CIVIL APPLICATION NO. 2664 of 2001 with 799, 820, 823 all of 2000, 7501 & 7502 of 1999. 2395, 2665, 2668, 2671, 2672,2674, 2677, 2682, 2686, 2706, 2708, 2710, 2726, 2747, 2768, 2992, 2988, 3023, 3807, 4102, 4310, 4396, 4602, 4724 to 4730, 5058, 5154, 5215, 5436, 5626, 7234, 8943 all of 2001. with CIVIL APPLICATION NO. 9842 of 2001 in SCA 5626/2001 with CA 10526 of 2001 in SCA No. 2988 of 2001 with CA 10527 to 10533 all of 2001 in SCA No.s 4724 to 4730 all of 2001 CA 10522/2001 in SCA 4102/2001, CA 10524/2001 in SCA 4310/2001, CA 9840/2001 in SCA 3023/2001, CA 9845/2001 in SCA 5058/2001, CA 9841/2001 in SCA 3807/2001, 9839/2001 in SCA 5154/2001 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 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 @ SHAH JOLLY CHANDRAVADAN C/O JAIMIN K DESAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PARESH UPADHYAY, MR NILAY ANJARIA, MR. SG PATEL, MR. HARUBHAI MEHTA, Senior Advocate with MR. RK MISHRA, MS MR VYAS, MR DP VORA, MR GM JOSHI, MR. IJ V/S MR SN SHELAT, ADVOCATE GENERAL with MR AD OZA, GOVT. PLEADER with MR PR ABICHANDANI, AGP. MR YN OZA, Senior Counsel with MR. SHAKTISINH GOHIL. MR DN PATEL for GPSC in all matters. -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 15/07/2002 ORAL CAV JUDGEMENT 1. This group of petitions are filed in the matter of appointment on the post of Lecturers in government colleges invoking the jurisdiction of this Court under Article 226 in special reference to Articles 14 & 16 of the Constitution of India. Scope of further division of these group matters is positively there on set of facts, but notionally it can be said that these petitions are moved by two rival groups viz one group is of candidates who are selected by Gujarat Public Service Commission ("GPSC" for short) for the post of Lecturer awaiting appointment. Another group is of those Lecturers who have been appointed as Lecturers on an adhoc basis till regularly selected candidates by GPSC are made available. Those petitioners who have been selected by GPSC for the post of Lecturers have prayed for a writ of mandamus for issuance of directions to the Government to appoint them on the post of Lecturers. The other group is of Lecturers already appointed on adhoc basis and are working as Lecturers in various government colleges in State of Gujarat. This second group viz. Lecturers appointed on ad hoc basis, can be further divided in sub-groups. Some of the Lecturers at present are serving as Lecturers in Govt. Colleges are party respondents in Spl.C.A. No. 2395/2001 filed by GPSC Selectees. Six such Lecturers had approached this Court by filing Civil Application NO. 6633/2001 for joining them as party respondents in the writ petition filed by GPSC selected candidates and as per the order passed in the Civil Application, all of them are joined as party-respondents and are brought on record as such. State of Gujarat has moved Civil Applications to vacate interim stay granted in favour of the ad-hoc Lecturers. All these petitions involving similar issues are heard simultaneously and ld. counsel appearing for the parties in all these petitions including the ld. Advocate General Mr. S.N. Shelat have jointly submitted and contended that all these petitions and other civil applications filed can be disposed of by a common judgment. 2. I have heard ld. counsel Mr. Upadhyay for the petitioner as well as heard the respondents who have expressed their desire to submit before this Court. Some of the ld. counsel appearing for the ad hoc appointees have adopted the arguments advanced by ld. Sr. Counsel Mr. Harubhai Mehta and Ld. Sr. Counsel Mr. Yatin Oza. Ld. Counsel Mr. Paresh Upadhyay and ld. Counsel Mr. Nilay Anjaria have submitted their arguments for the petitioners selected by GPSC for the post of Lecturers awaiting their appointments, but mostly they have adopted the arguments advanced by ld. Advocate General Mr. S.N. Shelat appearing for the State and Ld. Counsel Mr. D.N. Patel appearing for GPSC. 3. The facts pleaded, if referred in brief, would be proper. However, with a view to get the main dispute crystallized and agitated before this Court, the case pleaded by GPSC selected candidates, if stated in brief, would be convenient. The case of the petitioner of Spl.C.A. No. 2395/2001 is that the GPSC, on the strength of the requisition made by the State Government, issued public advertisement for recruitment on the post of Lecturer in government colleges in different subjects. The advertisement was issued for 475 vacancies on 15.6.1998. The petitioner had applied in response to the said advertisement and it is contended that after due process of selection, the petitioner was declared selected by GPSC. That on 21.1.2000, name of the petitioner was recommended by GPSC to the Government for appointment on the post of Lecturer in the subject of History. On 20.8.2000, the Government called the petitioner for verification of certificates and testimonials etc. and according to the petitioner, he has also undergone that formality. Appointments on the post of Lecturer in government colleges are governed by the Statutory Rules framed by the Government. All these posts are within the purview of the GPSC and, therefore, appointments on these posts ( Class-II Gazetted ) are to be made on the basis of the selection made by GPSC in accordance with Rules. The petitioner being eligible, was called for interview and after competing with other candidates, he was selected. Some Lecturers already appointed and working on ad hoc basis as Lecturers were also called for interview by GPSC, but were not declared successful. Some of them were rejected on the ground of over-age. This non-selection by GPSC was not challenged by such candidates at that relevant point of time. It is the say of the petitioner that there are government instructions to the effect that candidate selected by the GPSC should be given appointment without any delay and in no case, delay should be more than six months. There are more than 300 Lecturers who are working on ad hoc basis and are working subject to the availability of regularly selected candidate by the GPSC. The grievance of the petitioner is that though all the formalities are over, the government authorities are not giving appointments to the candidates selected by the GPSC and on the other hand, the ad hoc appointees are continued. Some of such Lecturers are continued who have either not appeared at all in GPSC Examination or have appeared but declared failed. The grievance of the petitioner is that various representations are made to the different authorities, but same have not brought any fruitful result in favour of the petitioner. That on or about 16.2.2001, GPSC took the matter seriously and asked the government to explain as to why appointments are not being made of the candidates selected by it. It is averred by the petitioner that not only the petitioner, but similarly situated candidates, inspite of the intervention by GPSC, are not given appointments and the State machinery is pulling on Lecturers appointed on ad hoc basis till regularly selected candidates by GPSC are available. It is the say of the petitioner that many of such ad hoc appointees had also appeared before GPSC for selection to the post of Lecturer and some of them are also selected by GPSC. Government has also issued a circular earlier on 27.8.1997 which is in consonance with various judicial pronouncements. In Annex.J (Page-36), the petitioner has pointed out that there are eight persons working as Lecturers in the subject of History on ad hoc appointment out of which one Ms. Jayshri Rathi (DKV College, Jamnagar) failed in Elimination Test itself and was not even called in interview by GPSC. Other seven Lecturers have failed in GPSC selection. Even then, as the petitioner was not appointed though selected, he moved this Court for a writ of mandamus and for other consequential reliefs. 4. On the other hand, the petitioners of Spl.C.A. No. 2992/2001 are ad hoc Lecturers and it is contended that earlier petitioners were serving as Teachers in schools, but as they were otherwise eligible as per the norms and qualifications prevailing at the relevant time, they were appointed as Lecturers in colleges. The State machinery as was not able to appoint Lecturers duly selected by the GPSC, Education Department had invited them to join as Lecturers in colleges. It is contended that as they are serving as Lecturers in government colleges since years, they have lost their lien, seniority and all other opportunities of promotion etc. Hence, they should be regularised as Lecturer. It is the say of the petitioners that their entry in the cadre of Lecturer in government college cannot be said to be a back-door entry or an irregular appointment. Appointment is as per the qualification required and the government machinery was authorised to make such appointment in case of exigency. These petitioners are mainly relying on the order passed by the Division Bench of this Court in LPA No. 1057/99 and cognate appeals on dated 29.9.1999. These LPAs were filed against the verdict of the ld. Single Judge rejecting the various pleas including regularisation by the ad hoc Lecturers apprehending termination of their services. 5. The case of GPSC selected candidates praying for a writ of mandamus can be divided into two sub-groups, namely; (i) candidates who have applied afresh for appointment and got selected; (ii) candidates who are at present serving as Lecturers on ad hoc appointment in competition who have cleared GPSC selection procedure and got entitlement for being appointed on the post; These groups of candidates have tried to submit before this Court that on their appointment, they should be treated appointed on the date on which they had entered the department so that they can avail their seniority. ( Group of ad hoc Lecturers presently serving on the set of facts pleaded in their respective petitions) can be divided in following sub-groups:- (i) ad hoc appointees who have cleared GPSC and got entitlement for appointment; (ii) ad hoc Lecturers though entitled to appear before GPSC, but have not appeared or participated in competitive interview in response to the publication of advertisement published on 29.6.1998; (iii) ad hoc Lecturers who have applied to GPSC in response to the advertisement published on 29.6.1998 but who are not called for interview as, according to GPSC, they were found over-age. (iv) ad hoc Lecturers who were entitled to appear before GPSC, they had appeared, sca266401j 6. It is pertinent to note that sub-group (ii) of GPSC selected candidates and sub-group (i) of ad hoc Lecturers presently serving are of the same petitioner incumbents. Ad hoc Lecturers who are serving with the Education Department either as a Teacher or staff member such as Laboratory Assistant or Lab-Technician whose applications were invited and were appointed as Lecturers on ad hoc basis are forming one separate group which is brought to the notice of the Court during the course of oral submissions. These ad hoc Lecturers, according to the respondent State, are lien-holders and they can be absorbed and are to be absorbed on their termination, on their original post. Submission of ld. Advocate General Mr. Shelat qua this group of ad hoc Lecturers advanced before this Court is that the government has decided to send all these ad hoc Lecturers having lien back to their respective posts in Education Department and government wishes to appoint only GPSC selected candidates of Classes (i) serving as ad hoc Lecturers and selected by GPSC having no liens in Education Department, and (ii) candidates invited from open general markeet and passed through regular selection procedure who have been selected by GPSC. The endeavour of the State is to give advantage to the maximum and to minimize the number of jobless within the legal frame. Pending thse petitions, the stand of the respondent State of Gujarat has taken a sharp "U" turn. Considering the verdict of the Apex Court in number of decisions which I would like to refer and discuss later on, the arguments advanced by ld. counsel appearing for the parties give different shades of colour and this Court has been asked to exercise the discretionary jurisdiction in favour of the Lecturers who are serving and working as Lecturers on ad hoc basis. The arguments of ld. Sr. Counsel Mr. Harubhai Mehta and ld. Sr. Counsel Mr. Y.N. Oza needs to be referred as both these Senior Counsel are representing two different set of ad hoc Lecturers. Mr. Mehta represents ad hoc Lecturers appointed from Teachers and employees serving in Education Department, who had requisite qualifications and eligibility for the post of Lecturer and serving as such since around 6 to 9 years. Mr. Oza has pleaded for the Lecturers who are appointed as per the policy of the government on local arrangement basis through the Directorate of Higher Education. 7. Special Civil Application No. 4102 of 2000 wherein Civil Application No. 10522 of 2001 has been preferred by the State of Gujarat, is treated as main special civil application in the group. As per order passed in Civil Applications preferred by the ad hoc Lecturers in Govt. Colleges of State of Gujarat on local selection/ selection by Education Department and who are (former) teachers or the persons serving in the Education Department are joined as respondents have appeared. Some such are petitioners and some are party respondents in the petition filed by the G.P.S.C. selectees. All such Lecturer/s are serving from different dates of their joining years and this period varies from 1987-88 to 1995-96. According to Mr. Mehta, for the reasons best known to the State of Gujarat and Gujarat Public Service Commission (hereinafter referred to as GPSC), there was no recruitment of college teachers by the Government through GPSC. These college teachers are granted lien. No procedure to recruit teachers through GPSC has started till 1998. For this period of 10 years of non-recruitment by the State through GPSC, many new contingency and facts situation have cropped up including the fresh norms as to the qualifications have been introduced. Some of such Lecturer/s appointed on ad hoc basis had approached this court by filing Spl.C.A. No. 841/98. Decision of this Court in aforesaid Spl. C.As. was challenged before the LPA Bench by filing LPA No. 1057/99 & Group. Observations made by the LPA Bench in the aforesaid group of matters, is one of the back-bone of the submissions of Ld. Counsel Mr. Mehta, wherein LPA Bench has observed that "in view of the statement made before us and the aforesaid facts, if the appellants of their association of which the appellants are members, file a representation within one week from today to the State Government, it is hereby directed that the State Government shall consider such representation within a span of two weeks, obviously without being influenced by the observations and directions contained in the impugned judgment and order in Spl. C.A. No. 841/98 or any other order of judgment on the subject identical to these appeals and will decide the merits of such representation independently upon the strength of the fact representation." The LPA Bench permitted all the petitioners to withdraw Spl. Civil Applications and asked to make a representation in light of the above-referred observations. It is argued that withdrawal of Spl. Civil Applications by the ad hoc Lecturer/s was only because of the statement made by the State Government before the LPA Bench and the representation by the ad hoc Lecturer/s has been made within a stipulated period. According to Mr. Mehta, at one point of time, considering the totality of the facts and circumstances including the method of recruitment adopted by the Government while appointing the Lecturer/s on ad hoc basis, it was decided by the State Government that services of such Lecturer/s can be regularised. By that time, GPSC started recruitment procedure. Copy of the advertisement given by the GPSC and published in the news papers for the post of Lecturer/s is available on record. Qualifications for the appointment is prescribed for the post advertised and same were mentioned in the advertisement. The norms as to qualifications mentioned in the advertisement do not state that a candidate must have cleared any of the tests i.e. examinations conducted by the authority approved by the University Grants Commission (hereinafter referred to as UGC for short). According to Mr. Mehta, a person intending to get job as a College Teacher, must have cleared National Eligibility Test (hereinafter referred to as "NET") or State Level Eligibility Test (hereinafter referred to as "SLET"). This norm is one of the essential norm till December 1997 and there is no reference in the advertisement published by the GPSC on the requisition of the State Government for such requirement. Ad hoc Lecturer/s who were serving with the education department as Teacher or Laboratory Assistant, were experienced hand and having all qualifications prevalent at the time of their appointment as ad hoc Lecturer/s. Against the fresh candidate, it is collusive to have an experienced man in the field of education. Some of such ad hoc Lecturer/s are satisfying the norms to become Post Graduate Teacher ( PG Teacher for short). Some of them are already taking lectures in PG Classes. If such ad hoc Lecturer/s are terminated or otherwise substituted by fresh recruits through GPSC, there may be shortage of PG Teachers and there may be vacuum in some subjects so far as PG Teachers are concerned. Fresh recruits cannot be assigned the work of teaching to PG students. It is specifically pointed out by Mr. Mehta that some such ad hoc Lecturer/s are not called in interview by GPSC considering the age factor and some of them have inocently not applied as they were not treated eligible only on account of age factor, though they were appointed as Lecturer/s while in service. This has seriously prejudiced the case of ad hoc Lecturer/s who were teachers and were serving in the education department and have joined as Lecturer/s on ad hoc basis on the promotion granted by the Higher Education Department. One of the grievance expressed by Mr. Mehta is that merely beause GPSC had not started recruitment though statutorily authorised, future of the persons serving since years should not be asked to leave the cadre and to create vacancies for fresh recruits. Undisputedly, the persons appointed on ad hoc basis are otherwise qualified. By starting recruitment procedure afresh after several years, the future of the persons serving in the cadre whether can be blocked, is the question raised by Mr. Mehta. Recruitments normally are made against the available vacancies or there can be recruitment against future vacancies and for that waiting list can be prepared. By referring two different affidavits filed on behalf of the government, Mr. Mehta had pointed out that the Government, legally, cannot take such a "U" turn. If legitimacy to continue in the cadre of Lecturer/s has been accepted by the State in the first affidavit dated 14.6.201 of Mr. Vora, then it was easy for the State to make exception. State Government should have requested GPSC to regularise services of ad hoc Lecturer/s and ex-teachers, the principle of "legitimate expectation" would play an important role in the preent case. All these ad hoc Lecturer/s have otherwise qualified to be appointed as Lecturer/s, the scope to get themselves absorbed or appointed as Lecturer/s in private colleges or any college run by the local-self government, has been adversely affected. Mr. Mehta has submitted that Human Resources Development Programme has stopped people to exploit situation which is in favour of the individual. As these ad hoc Lecturer/s were permitted and asked to join cadre of Lecturer/s as they were qualified teacher in the Govt. Colleges, Schools and Institutions, they had joined the cadre and at present serving as Lecturer/s and had not cared to exploit favourable situation by joining private colleges i.e. colleges run by the public trust colleges. The tendency to continue ad hoc arrangement for long years while appointing Lecturer/s in colleges, has created right in favour of such ad hoc Lecturer/s and obligation on the State to see that their services are regularised. The statement made in affidavit dated 14.6.2001, is an admission by the State Government. It also tells about the policy accepted by the State Government. Stand taken by the State in the subsequent affidavit dated 2.8.2001 tells totally a new thing. When teachers were posted as Lecturer/s on ad hoc basis, lien in the department was kept anticipating that in near future, there shall be a recruitment on the post of Lecturer/s by GPSC on State requisition and so such teachers either will be selected or regularised on such post or will be sent back to the original post of teacher in their respective schools. The repatriation which now the State Government intends to make of such ad hoc Lecturer/s, is likely to affect teachers and such Lecturers on many other counts, such as; (i) they will be losing salary and shall have to serve with less amount of pay; (ii) they have lost their right to become Supervisor or Principal in their respective school; (iii) Work-load and working conditions in light of the advanced age etc; (iv) reduction in social status because Lecturer/s in college is respected more in comparison to the Teacher in the school. 8. Some of the candidates who are to be recruited being declared selected by the GPSC, students of such ad hoc Lecturers and government as per the second affidavit intends to replace experienced teachers vice fresh recruits and the same would create an impression in some cases that a seasoned Lecturer was not even able to compete his ex-student in the test conducted by GPSC for recruitment. Mr. Mehta has also submitted that as per the settled legal position, one ad hoc servant cannot be replaced by another ad hoc servant. None of the candidates who are now declared selected, can be said to be regular appointee as none of the qualifications as to clearance of NET or SET was prescribed while calling candidates from open market. Their replacement, technically, would be of ad hoc type because if such candidate is not able to clear either NET or SLET, then such a candidate cannot be continued on the post of Lecturer. So, technically GPSC and State Government indirectly intends to replace another set of ad hoc selectees. According to Mr. Mehta, this is not legally permissible. This Court can legitimately say and declare that the selection of candidates by GPSC on the strength of advertisement published in the year 1998 is bad for administrative reasons and GPSC, in view of accepted norms of UGC, no candidate can be selected or appointed who has not cleared either NET or SLET. Such selection would not confer the right to appointment and so the policy decision taken by the State Government reflected in 2nd affidavit filed in the month of Augst,2001 would not validate irregular selection. Mr. Mehta has placed reliance on the observations made by the Apex Court in the case of Sabita Prasad v/s State of Bihar, reported in 1992(3) Scale 361. Mr. Mehta has referred relevant part of the decision and especially para-16 of the judgment. Such an appointment, according to Mr. Mehta, comes latter. Words "administrative reasons" reflected in the judgment may be regular addition. Even candidates who are declared selected