IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4337 of 1995 WITH SPECIAL CIVIL APPLICATION No 4384 OF 1995 WITH SPECIAL CIVIL APPLICATION No 4393 OF 1995 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- A. S. BRAHMBHATT & ORS. Versus THE CHAIRMAN, THE GUJARAT SUBORDINATE SERVICES SELECTION BOARD, GANDHINAGAR AND ANR. -------------------------------------------------------------- Appearance: In all the Sp. Civil Applications. Shri B.P.Tanna and Bharat T. Rao for the petitioners. Shri D.A. Bhambhania for the respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 31/07/1996 C.A.V. JUDGMENT 1. As common question of facts and law have arisen in all these Special Civil Applications, and as such, the same are being disposed of by this common judgment. 2. Shri B.P.Tanna, senior advocate has advanced the main arguments in these Special Civil Applications. He submitted that the facts are common and as such, he made reference to the facts and the grounds with respect to Special Civil Application No.4384 of 1995. The facts of the case, in brief, are as under: The petitioners, in all ten, in all these Special Civil Applications were appointed undisputedly, initially on daily wages in the year 1991 except the two petitioners namely I.A. Shaikh who has been appointed on 15-2-1992 and the petitioner, A.B. Shaikh who has been appointed though on adhoc temporary basis but in the pay scale of the post of the driver on 3-6-1990. These appointments had been made by the Chairman of the Gujarat Subordinate Services Selection Board at Gandhinagar, under the resolution of the Government dated 14th March, 1990, Annexure `A' at page no.16 in the Special Civil Application No.4384 of 1995 under which the Chairman has been authorized to make appointment on daily wages to cope with the temporary increase of the work load in the Board. It is not in dispute that the petitioners had been appointed on the basis of their own applications meaning thereby there is no element of any selection in making of their appointments on daily wages. Their names have not been called from the Employment Exchange Office as well as from the social welfare department etc. Not only this, applications were also not invited from the open market. The petitioners continued to work on daily wages for some time and thereafter under the separate appointment order they have been given adhoc temporary appointment in the pay scale of their respective posts. A copy of such appointment order of one of the petitioners namely Jayant J. Trivedi has been filed at annexure `D' to the Special Civil Application No.4384 of 1995 which is dated 11th July, 1992. The appointment had been given from 10th June, 1992. Similar orders have been passed in respect of other petitioners undisputedly. In the order dated 11th July, 1992, in Para 2 thereof a reference has been made to the Government Resolution No. DLJ/1064/3778/G dated 4-1-1965. It has been clarified in the said order of the appointment that these appointments had been made as per the resolution dated 4-1-1965, referred above. During the course of arguments today in the Court, Shri D.A. Bhambhania, learned counsel for the respondents no.1 and 2 has produced the copy of the resolution dated 4-1-1965, which has been taken on record. A copy of this resolution has been given to the learned counsel for the petitioners, Shri B.P. Tanna and he has no objection of taking of this document on record. A copy of the appointment order made on daily wages has also been submitted by the petitioner at annexure `C' to the Special Civil Application No.4384 of 1995 and the similar orders have been said to be made in respect of other petitioners. From the document, annexure `C' dated 22nd July, 1991, it comes out that the appointment has been made on the basis of the application of the petitioner. The petitioners having the apprehension of the termination of their services have approached to this Court by filing Special Civil Applications No.8554, 8860, 9329, 9330 of 1992 and Special Civil Applications No.13 and 14 of 1993. The learned counsel for the petitioners and the respondents are in agreement that all the ten petitioners before this Court in these petitions were party to those Special Civil Applications. The counsel for the parties are also in agreement that in the aforesaid Special Civil Applications interim relief had been granted in favour of these petitioners against the respondent not to terminate their services and that interim relief had continued till the date of the decision of those Special Civil Applications. Those Special Civil Applications were decided by this Court on 6th of April, 1995. I will make reference of the judgment of this Court in those Special Civil Applications at the appropriate place in this judgment. Again having the apprehension of the termination of their services, the petitioners approached to this Court by filing the Special Civil Applications No.3547 to 3557 of 1995 and those Sp. Civil Applications have been decided by this Court on 5th May, 1995 and I will make the reference to this decision also at the appropriate place in this judgment. The respondent-Board published a seniority list of clerk/typist, driver and peons vide its order dated 8-5-1995 and these petitioners had been mentioned therein as irregularly appointed persons. Shri Tanna learned counsel for the petitioners has admitted that so far as the of seniority list is concerned, there is no dispute, but against the said list, petitioner submitted a representation to the Board dated 29th May, 1995 only against the word used whereby denoted the petitioners to be irregularly appointed. The services of the petitioners were terminated under the order dated 25th May, 1995 which led to filing of these Special Civil Applications. These Sp. Civil Applications have been contested by the respondents by filing the affidavit-in-reply. The affidavit-in-reply has been further supplemented by the filing of the further affidavit. The petitioners have filed the rejoinder to the reply. 3. Shri B.P.Tanna, learned counsel for the petitioners contended that the matter has been concluded by this Court in the first set of the Special Civil Applications and the services of the petitioners could have been terminated only in case they fail to get selected in the open selection made by the Board. It has further been contended that the petitioners had been appointed on clear vacant posts. It is not material or significant whether the post was substantive, permanent or regular or temporary, the counsel for the petitioner contended that it was a case of appointment against the regular clear vacancy and these posts have not been abolished so far. Shri Tanna next contended that without giving the chance to the petitioners to appear before the board and compete in open selection, their services are not liable to be terminated. In this case the judgment of this Court given in first sets of Special Civil Applications is binding between the parties and the termination of services of the petitioners had been made contrary to the said decision. Though specific point has not been raised by the petitioners in the writ petition, but Shri Tanna learned counsel for the petitioners by making the reference to the Government resolution dated 9th August, 1994 and other notification of the even date, contended that the services of the petitioners should have been regularized as they are working for last about five years on the same lines as it has been done in the case of other persons under the aforesaid resolution and notification. With the consent of the parties, I have taken on record, the aforesaid resolution and the notification and I have also permitted the counsel for the petitioners to make the submission with reference to these resolution and notification as it is a pure question of law. In support of his contentions, Shri Tanna learned counsel for the petitioners has also placed reliance on the decision of the Supreme Court made in Civil Appeal No.4058 - 64 of 1988 on 15th November 1988, and the decision of this Court in Sp. Civil Application No.124 of 1986 decided on 4-7-1989. 4. On the other hand, learned counsel for the respondents Shri D.A. Bhambhania contended that the petitioners have not disclosed an important fact before this Court that an identical issue has been decided by this Court (Coram : K.G. Shah,J) in Sp. Civil Application No.83 of 1993 decided on 20th September 1993 and the similar terminations of services were held to be legal and justified. Shri Bhambhania urged that the decision of this Court (Coram : K.G.Shah,J) in Special Civil Application No.83 of 1993 has been cited before this Court when the first set of Special Civil Applications filed by the petitioners were decided and after taking into consideration of the said decision, this Court has not protected the petitioners except to the extent to give them an opportunity to appear and compete in the open selection and the recommendation has been made to the Government to consider the question of relaxation of age sympathetically in their cases. Shri Bhambhania, learned counsel for the respondent carrying further his contentions urged that both the daily wages appointment as well as the adhoc, temporary appointments of the petitioners are illegal. These are the cases of back door entries. In case any protection has been given by this court to the petitioners, then it will amount to perpetuate illegality i.e. the illegal appointments shall continue. Learned counsel Shri Bhambhania made two fold clarificatory submissions. Firstly he contended that these petitioners will not be replaced by any daily wager appointee or adhoc or temporary appointee. Secondly, Shri Bhambhania, learned counsel for the respondent submitted that all these petitioners will be given an opportunity subject to the fulfillment of the eligibility criteria, as and when the selections are being made for the appointments to the post of Junior Clerks. Their cases for relaxation of age shall also be considered sympathetically as directed by this court in its earlier decision. On closing of his submissions, learned counsel for the respondents urged that none of the legal and fundamental rights of the petitioners has been infringed, and as such, these writ petitions should be dismissed. The termination of the services of the petitioners is legal, proper and justified. It is not a case where the petitioners have worked for years together. The petitioners substantial continuation in the employment is because of the interim relief granted by this court earlier in the first set of the Special Civil Applications then in the second set of the Special Civil Applications and lastly in these Sp. Civil Applications. If the period of the interim relief is excluded then the total working of the petitioners is not of a longer period as submitted by the counsel for the petitioner. 5. I have given my thoughtful consideration to the respective contentions advanced by the learned counsel for the parties. 6. None of the counsel appearing for the parties has brought to the notice of the Court, the relevant service rules which provides for the recruitment and other service conditions in the cadre of Junior Clerks. It is not a case of either of the parties that the recruitment rules have not been framed or are not in existence for making the selection and appointments on the post of Junior clerks. From the facts which have come on the record, it is clear that the selection for appointment on the post of junior clerk is to be made by the Gujarat Subordinate Selection Board, an authority which has been constituted by the Government for the purpose of making selection on the post of Junior Clerks in the subordinate services of the State of Gujarat. Be that as it may, even if we proceed with the assumption that there are no recruitment rules laid down by the respondent, State of Gujarat, then the recruitments are to be made in accordance with the provisions of Article 14 and 16 of the Constitution of India. Article 16 of the Constitution of India provides that every eligible citizen of the country should be given equal opportunity in the public employment. Article 16 of the Constitution confers on every eligible citizen of this country, for a given employment, a right of consideration for appointment. It is a fundamental right. Whatever may be the nature of the appointment, normally every employer and particularly the State and its functionaries should have to provide equal opportunity to all the eligible citizens in the public employment. There may be some exceptions where necessity may have arisen for urgent temporary appointment for a short duration say for one month or two months, and in such cases, the requirement of all these procedures may not be strictly insisted, but the provisions of Article 14 and 16 cannot be allowed to be bypass by the employer by continuing such persons in the employment for indefinite period thereafter. For all the employment of urgent, temporary nature concerned, the employer has to undertake and exercise to give all the eligible citizens a right of consideration in the public employment. By continuing such a daily wagers in the service for years together or an adhoc, temporary appointee for years together, though their appointments are contrary to the provisions of Article 14 and 16 of the Constitution of India, these class of persons come before this Court claiming equities and going to the extent of praying for grant of relief of the regularization of their services. If in such cases, the Court comes to the rescue of such class of persons what it did, it protects the illegal appointees which normally this Court will not do sitting under Article 226 of the Constitution of India. 7. In the present case, Shri Tanna learned counsel for the petitioners fairly conceded that the petitioners' appointments as a daily wagers and as an adhoc, temporary were not made after any open market selection. Shri Tanna, learned counsel for the petitioner is unable to point out any provision either from any of the Rules framed under Article 309 of the constitution of India and under any resolution of the Government which provides for making an adhoc, temporary appointment without making any selection. 8. The learned counsel for the respondents Shri D.A.Bhambhania made a statement during the course of argument that recruitment on the post of clerks in the office of Gujarat Subordinate Services Selection Board has to be made by the Centralized recruitments and the selection are to be made by the said Board. This position has also not been disputed by the learned counsel for the petitioners. The Board, Shri Bhambhania had contended, has been constituted for making centralized selection for the post of clerks etc. 9. Under the order dated 14th March 1990, annexure `A' in the Special Civil Application No.4384 of 1995, the Chairman of the Board was given powers to make appointment on daily wages in class III and IV to cope up with the temporary increase in work of the Board. The Chairman, under the powers as given to it by the Government, has given appointment to the petitioners in this Special Civil Application, on daily wages. At no point of time, the Chairman has been given powers by the Government to make the appointment on adhoc or temporary basis in class III and IV. Though the Chairman was not having any powers from the Government to make adhoc and temporary appointments in class III and IV, the petitioners were given adhoc temporary adhoc appointments in the pay scale of the concerned posts on different dates in the year 1992. These adhoc temporary appointments of the petitioners have been made by the Chairman as per the Government Resolution dated 4.1.65 and a special reference has been made of this fact in the said order. This Resolution provides as under: gkkkkkkkkkkkkkokkkkkkkkkkkkkkkkkkkkkkokkkkkkkkkkkkkkkkkkkkm fNature of f To be delegated f Scope f fPowers f to f f fckkkkkkkkkkkkpkkkkkkkkkkkkkkkkkkkkkkpkkkkkkkkkkkkkkkkkkkkn fTo make f All Gazetted Heads f i)Temporary offi-f fofficiaging f of offices. f ciating arrangem-f fappointments f f ents should be f fin vacancies f f made for a periodf fin class III f f not exceeding 2 f fposts. f f months. f f f f f f f f ii)Appointment f f f f should be made f f f f made from the f f f f approved list of f f f f candidates, if f f f f any. If there f f f f is no such list f f f f appointments may f f f f be directly. f f f f f f f f iii)All such f f f f appointments sho f f f f uld be reported f f f f immediately to f f f f appointing f f f f authority. f dkkkkkkkkkkkkklickkkkkkkkkkkkkkkkkkkklkkkkkkkkkkkkkkkkkkkkj 10. The Chairman as per the said resolution dated 4th January 1965, was empowered at the most to make temporary officiating arrangements for a period not exceeding two months. The adhoc and temporary appointments of the petitioners could have been made only for two months. Though in the order of appointment, the period has no been mentioned, but as it has been made as per the Resolution dated 4.1.65, those appointments could have been only for a period not exceeding two months. 11. The adhoc and temporary appointments of the petitioners would have come to an end on expiry of two months' period. It is a case of respondents that both the daily wages appointments as well as adhoc temporary appointments of the petitioners are illegal as these are back door entries. Earlier the petitioners have come up before this Court twice and in those proceedings this Court has not adjudicated on the question of legality of appointments of the petitioner on daily wages as well as on adhoc temporary basis. The petitioners have also not preferred to have any decision on their right of continuation in the employment. These writ petitions have been filed by the petitioners after termination of their services. The orders of termination has not been challenged in these Special Civil Applications specifically as no prayer has been made for quashing of the same. The copy of order of termination of service has been filed on record and the counsel for the petitioners has made submission challenging the validity thereof, as such it becomes necessary to examine the validity of the order of appointment of the petitioners on adhoc temporary basis. 12. The Resolution dated 4.1.65 is the general delegation of powers to the officers named therein to make officiating appointments in the vacancies of class III. The Chairman of the Board is the head of the office and it may be accepted that he has powers to make temporary officiating arrangements. But those powers are subject to the conditions as laid down in the said Resolution. It is not the case of the respondents that the Chairman was not the head of the office. Under the Resolution dated 4.1.65 the Chairman of the Board is assigned necessary powers to make temporary officiating arrangements for a period not exceeding two months. Now the next question that arise is whether the appointment of the petitioners on adhoc temporary basis was legal and in conformity with the Resolution dated 4.1.65 or not. The Resolution dated 4.1.65 has taken care of the provisions of Article 14 and 16 of the Constitution of India and it has been provided thereunder that such appointments should be made from the approved list of candidates, if any, in existence. It is not the case of the petitioners that their names were there in the approved list. It is also not the case of the petitioners that any approved list was there in existence on the date on which they have been given adhoc temporary appointments. The Resolution has taken care of the situation where the approved list is not in existence as it is stipulated that if there is no such list, temporary officiating arrangements have to be made by making open selection. The words used in the Notification are, "if there is no such list appointments will be made directly" which means and should mean to afford opportunity to all the eligible candidates. The appointments of the petitioners on adhoc temporary basis were not made by the selection and for this reason, these appointments can conveniently be termed as illegal appointments or back door entries. When the appointments of the petitioners on adhoc temporary basis were itself illegal, they have no right to continue in the services on the basis of the said appointments. Apart from this, under the Resolution, the appointments could have been made only for two months. There is no provision in the Resolution which empowers appointing authority, herein, the Chairman of the Board to give any extension to the temporary arrangement made. It was only a fixed term appointment though it is not mentioned therein, but by necessary implication it was an appointment only for two months. When it was a case of fixed term appointment, the same has come to an end by afflux of time and in such case even the order of termination need not be made. It was purely a temporary arrangement for a fixed term. It is a settled law that the fixed term appointment comes to an end automatically by afflux of time and no order of termination needs to be made. A reference in this respect may have to decision of this Court in the case of Bhanmati Tapubhai Muliya v. State of Gujarat, Principal Government Industrial Institute reported in 1995(2) GLH 228. Yet a temporary Government servant does not become permanent unless he acquires that capacity by force of any Rule or is declared as permanent servant. This position of law is also no more res integra. A reference in this respect may have to the decision of the Apex Court in the case of Madhya Pradesh Hasta Shilpa Vikas Nigam Limited v. Devendra Kumar Jain & Ors., reported in JT 1995(1) SC 198. The Resolution dated 4.1.65 only contemplates a temporary officiating arrangement for a period not exceeding two months and under this arrangement, the petitioners have not acquired any right to hold these posts. A reference in this respect may have to be made to another decision of the Apex Court in the case of State of Orissa & Anr. v. Dr.Prari Mohan Misra, reported in JT 1995(2) SC 54, and of this Court in the case of Patel Ashokkumar Babulal v. State of Gujarat & Ors., reported in 1995(2) GLH 640. 13. The petitioners were aware of the fact that their adhoc temporary appointments were only for two months. The Chairman has also, knowing well that under the Resolution dated 4.1.65, appointment cannot be made for a period exceeding two months, they sought to terminate services of the petitioners, but they could not make order of termination as some of the petitioners have approached to this Court in the month of November 1992 and this Court has protected them by grant of interim relief. All the petitioners were later on protected. The first set of writ petitions has been filed by the petitioners when the respondent-Board sought to terminate their services. I have called for the papers of the petitions of the first set and the papers of Special Civil Application No.8554 of 1992 have been received. This Special Civil Applications have been filed by the petitioner therein, Shri Jagat Jayendrabhai Trivedi on 13.11.92. Shri Jagat J. Trivedi is also the petitioner in