IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 485 of 2002 in SPECIAL CIVIL APPLICATIONNo 2395 of 2001 WITH LETTERS PATENT APPEALS NOS. 817/2002 AND LETTERS PATENT APPEALS NOS. 819/2002 TO 1043/2002 WITH LETTERS PATENT APPEALS NOS.488/2002, 489/2002, 595/2002, 750/2002, 751/2002, 753/2002, 754/2002, 756/2002, 757/2002, 816/2002 & 1064/2002 WITH LETTERS PATENT APPEALS NOS. 491/2002 AND 812/2002 TO 815/2002 WITH LETTERS PATENT APPEALS NOS. 540/2002 AND 558/2002 TO 561/2002 WITH LETTERS PATENT APPEAL NO. 818/2002 AND LETTERS PATENT APPEAL NO.492/2002 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- K.D. VOHRA Versus KAMLESHBHAI GOBARBHAI PATEL -------------------------------------------------------------- Appearances: (1) Mr.K.S.Nanavati, Sr. Counsel for Nanavati Advocates for the appellants in L.P.A. Nos. 485/2002, 817/2002 and 819/2002 to 1043/2002 (2) Mr.Girish Patel, Sr. Counsel with Mr.Shalin Mehta, Counsel for the appellants in 488/2002, 489/2002, 595/2002, 750/2002, 751/2002, 753/2002, 754/2002, 756/2002, 757/2002, 816/2002 & 1064/2002 (3) Ms. Ketty Mehta, Counsel for the appellants in L.P.A. No.491/2002 and L.P.A. Nos.812/2002 to 815/2002 (4) Mr.I.J.Naik, Counsel for the appellants in L.P.A. Nos.540/2002 and 558/2002 to 561/2002 (5) Mr.N.M.Kapadia, Counsel for the appellants in L.P.A. No. 818/2002 (6) Ms. Nita Panchal for Mr.Shaktisinh Gohil, Counsel for the appellant in L.P.A. No. 492/2002 (7) Mr.S.N.Shelat, Advocate General with Mr.A.D.Oza, Government Pleader for the State of Gujarat in all appeals (8) Mr.D.N.Patel, Counsel for the Gujarat Public Service Commission (9) Mr.Paresh Upadhyay, Counsel for the respondent No.1 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE SHARAD D.DAVE Date of decision: 11/12/2002 ORAL COMMON JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. This group of appeals has been preferred by persons who were appointed as ad hoc lecturers pending the availability of the regular recruits through the Gujarat Public Service Commission (GPSC for short), to the post of Lecturer, Gujarat Educational Service, Class II, (Collegiate Branch), against the common judgement and order dated 15th July 2002 passed by the learned Single Judge allowing the Special Civil Applications No.2395 of 2001 and other cognate matters which were filed by the candidates selected through the GPSC as per the Recruitment Rules applicable to the said post and rejecting the Special Civil Application No. 4396 of 2001 and other cognate matters which were filed by the ad hoc appointees, who were required to be replaced by the GPSC selectees. 2. In Special Civil Application No. 2395 of 2001 and its cognate matters which were filed by the direct selectees through the GPSC, it was prayed that the petitioners should be appointed to the posts of Lecturer as per the recommendation of the GPSC. The GPSC had issued an advertisement on 15th June 1990 for recruitment to the posts of Lecturer, Gujarat Educational Services, Class II, (Collegiate Branch) to the Government Colleges in different subjects in respect of 475 vacancies which had arisen and many of which were being manned by the ad hoc appointees over a long period of time. According to these petitioners, they were duly selected by the GPSC and recommended for the post, and that, as per the extant instructions of the Government, the appointment pursuant to the GPSC recommendations could not have been delayed beyond the period of six months. It was pointed out that 300 lecturers were continued on ad hoc basis subject to the availability of the candidates selected through the GPSC, but, for the reasons best known to the Government, these regularly selected candidates were not issued appointments. Amongst these regularly selected candidates, there were also some candidates who while working on ad hoc basis came to be selected by the GPSC. Some of the ad hoc lecturers locally appointed were drawn from government schools from their Class III posts in which their lien was retained, while the rest were locally appointed direct on ad hoc basis. All the ad hoc appointees knew that they were to hold the post only till the availability of the GPSC candidates. Despite the PSC asking the Government to explain why the appointments were not being made pursuant to its recommendation, the Government was delaying the matter. These direct selectees therefore prayed for being appointed pursuant to their selection by the GPSC. As the matter now stands, appointment orders of 132 direct selectees were issued on 10th November 2001, and further appointments of 210 such GPSC selectees have been issued on 9th October 2002 after the decision of the learned Single Judge. It is stated that many of these have joined their posts except 123 direct selectees who, though appointed, are yet not posted in view of the interim orders which operated in favour of the ad hoc appointees. 2.1 It appears that, during the pendency of Special Civil Application No. 2395 of 2001, which was filed by direct selectee, the present three appellants of the Letters Patent Appeal No. 485 of 2002 and three other ad hoc appointees had, at their instance, been impleaded as party respondents Nos. 5 to 10. The original respondents Nos. 5, 6 and 8 are the appellants of the Letters Patent Appeal No. 485 of 2002. All other Letters Patent Appeals are by such ad hoc appointees. 3. In Special Civil Application No. 2992 of 2001 and other cognate matters, the contentions raised by the ad hoc appointees were almost common in all their petitions and their main grievance was that, though initially they were appointed on ad hoc basis, their appointments having been made after being selected by the local Committee constituted as per the resolution / circular dated 21st December 1992, which comprised of Joint Director of Education or Deputy Director as well as Principal and Lecturer of the respective college and one Expert from amongst the panel of Lecturers, in accordance with the requirements of the Recruitment Rules as regards the educational qualifications and they, having been continued for a number of years, have acquired a right to continue on the post of lecturer. Their appointments should be considered to have been duly regularized and they have a better right to hold the said post over the direct selectees. According to them, their appointments were made on the basis of merit after they were tested by the Interview Committee constituted under the aforesaid circular. It is contended by them that, since they had a long teaching experience and have been teaching in various colleges without any adverse reports against them, any action of discontinuing them for accommodating the fresh candidates was violative of their fundamental rights guaranteed by Articles 14 and 16 of the Constitution. It is also their case that the Government had regularised similar temporary employees as Doctors in Ayurvedic Colleges, as also the employees of the Narmada & Water Resources Department, without being required to undergo the process of selection through the GPSC. Denial of similar treatment to these ad hoc appointees was, therefore, violative of their fundamental right to equality guaranteed by Articles 14 and 16 of the Constitution, as also their right to life under Article 21 of the Constitution. The ad hoc lecturers therefore prayed that they should be regularised as Lecturers. 3.1 On 15th July 2002, the learned Single Judge, while allowing the petitions of the direct selectees, rejected the prayer of the appellants for continuing them in service, holding that they would be treated as surplus but not entitled to any regular salary or financial advantage. 3.2 The case of the appellants of Letters Patent Appeal No. 540, 558 to 561 of 2002 and other matters was that they were interviewed by the duly constituted Staff Selection Committee in January 1990 and appointed as Lecturers in Electronics in the Government Colleges. They applied pursuant to the advertisement dated 15th June 1998 issued by the Gujarat State Public Service Commission for the post of Lecturers, but they received a letter of rejection on the ground that they did not possess the prescribed educational qualifications. In May 1999, they represented to the Government for regularising their ad hoc appointments, but without any response. They apprehended that the GPSC selectees may be appointed in their place and their services would be terminated and therefore, they filed the petitions from which these appeals arise. They also relied upon the affidavit-in-reply dated 14th June 2001 filed on behalf of the State Government for claiming to be regularised as Lecturers from the date of their initial ad hoc appointment notwithstanding the change in the stand by the Government in its subsequent affidavit dated 30th August 2002. 3.3 The Letters Patent Appeal No. 818 of 2002 is preferred by the ad hoc appointee who had approached the Court for regularisation on the ground that he had put in 11 years of service as ad hoc appointee. It was his case that, though he was desirous of getting appointment through the PSC, no selection process was held by the State Government for more than 10 years. His petition in which he raised contentions similar to those raised by the other ad hoc appointees, also came to be rejected by the learned Single Judge alongwith other matters, which decision is challenged on the grounds similar to those raised in other appeals. 3.4 Letters Patent Appeal No. 492 of 2002 is filed by the original respondent No.7, who came to be added in Special Civil Application No. 2395 of 2001 alongwith other five persons as respondents Nos. 5 to 10. In this appeal, contentions identical to those raised in other appeals by the ad hoc appointees have been raised and hence, they need not be repeated. 4. The stand taken up by the State Government in the affidavit-in-reply dated 27th April 2001 filed in Special Civil Application No. 2395 of 2000 was that the posts of lecturer in Gujarat Educational Services (Collegiate Branch) are Class II posts and were required to be filled in by consultation with the GPSC. However, in accordance with the provisions contained in the proviso to Regulation 3 of the GPSC (Exemption from Consultation) Rules, 1960, appointment to such posts can be made by the Competent Authorities for a period of one year without such consultation. Since considerable time elapses in getting recommendation from the GPSC of such candidates, the ad hoc appointments have been made from time to time so as to ensure that the interest of the large number of students was not affected adversely for the reason of non-availability of teaching staff. It was stated that several candidates selected by the local selection committee constituted by the Commissioner of Higher Education under its circular dated 21-12-1992, came to be appointed on ad hoc basis. Similarly, several candidates who were working in the government schools and associated with teaching were also appointed on ad hoc basis keeping their experience and educational qualifications in view, as per the circular dated 20-12-1991 issued by the Commissioner of Higher Education in this regard. The above two circulars are produced at Annexure "I" and "II" to the said affidavit-in-reply. It was stated that, as per the scheme of the such ad hoc appointments services of all such ad hoc appointees were to be terminated on completion of academic term. However, such ad hoc appointees had obtained interim orders from time to time from the Courts against such termination and therefore, they were continued in service on ad hoc basis. Ultimately, it came to be decided in a group of petitions on 12-5-1999 (Special Civil Application No. 841 of 1998 and other cognate matters decided by Hon'ble Mr. Justice S.K.Keshote), that such ad hoc appointees were to be continued only till availability of the candidates recommended by the GPSC. A group of appeals preferred by the ad hoc appointees (Letters Patent Appeal No. 1057 of 1999 and other cognate appeals) against the said decision dated 12-5-1999 came to be disposed off by the Court on 29-9-1999, and the appellants were permitted to withdraw their original petitions, without reserving any liberty for them to file fresh petitions and to make representations. The appeals were disposed of on the ground that they did not survive in view of the withdrawal of the petitions. It was stated that, pursuant to the said decision which required the representations of these persons to be considered, they had made the representations which were considered by the Government. In the meanwhile, to fill up the posts of lecturers available in the different subjects, necessary requisitions were sent to the GPSC in the year 1997, with reference to which the Commission issued an advertisement and on completion of process of selection, have recommended the names of selected candidates to the Government for appointment. It was also stated that, in view of the Government having accepted the package of University Grant Commission recommendations in respect of all the teaching staff, it had undertaken the task of reviewing the strength of the sanctioned establishment of lecturers as per the norms of the UGC guidelines. It was then stated that the Government was making all possible endeavours to keep balance between those who have been directly selected through the GPSC and those who are working on ad hoc basis and who are required to be considered as per the guidelines issued in group of appeals, and that, appropriate action would be taken when decision was reached. It was also stated that all possible endeavour was made by the Government to accommodate and appoint the persons selected through the PSC though such selected person had no right to seek a mandamus for appointment. 4.1 In the affidavit-in-reply filed on 14th June 2001, in context of the direction of the High Court to decide the representation of the ad hoc lecturers as early as possible and, in any case, before 10th June 2001, which was issued on 4-5-2001 on the basis of the earlier directions given in Letters Patent Appeal No. 1057 of 1999 on 29-9-1999, the Government had taken a decision that the services of all the 330 persons appointed as lecturers in Government Colleges on ad hoc basis, from time to time, by the Commissioner of Higher Education pursuant to their selection by the local Selection Committee constituted under the circular of 21-12-1992 should be regularized from the date of their appointment as such, as was done in cases of Medical Officers (Ayurved) by the Health and Family Welfare Department by its resolution dated 4-10-1999. It was further stated that it was decided that, for regularizing the services of all such ad hoc appointees, a reference to the GPSC should be made to obtain its approval as a special case. All the 64 persons who had lien on the posts in respective schools from which they were drafted and appointed as ad hoc lecturers in Government Colleges were to be repatriated to their original posts. It was also decided that, after working out the subject-wise number of posts of Lecturers in Government Colleges in view of new workloads on account of revision of UGC scales and after accommodating the ad hoc appointees, if clear posts of lecturers of the respective subjects become available, the candidates recommended by the GPSC were to be considered for appointment as per their rank in the select list. It was further decided, as stated in the said affidavit-in-reply, that, in the eventuality of the ad hoc appointees being declared surplus, their names would be registered by the Commissioner of Higher Education and they would be adjusted by giving appointments on the posts that may be available on account of retirement, resignation, promotion, death etc. in future. 4.2 In the affidavit-in-reply dated 30th August 2001, the Government, however, took a stand different from that which was taken in its affidavit dated 4th June 2001. It was stated that a High Level Committee held its meeting on 16th August 2001 to consider the issues relating to ad hoc lecturers / regular lecturers selected through the GPSC in the Education Department and after due deliberations over various issues and thorough examination of the background of the case and various orders passed by the High Court in various matters, final as well as interim, and also keeping in view the legal provisions and taking into consideration the representations submitted by the ad hoc employees, the Committee had come to the conclusions which are narrated in paragraph 3 of the said additional affidavit-in-reply. Accordingly, it was decided that the candidates duly recommended by the GPSC shall be given appointments by the State Government. It was decided that the appointments may be given to the candidates recommended by the GPSC in various subjects against clear vacancies now worked out as per the UGC guidelines. It was also decided to repatriate the ad hoc appointees working in Government Colleges, back to their respective cadres in which they were having their lien, subject to the vacation of the stay order in this regard by the High Court. It was noted that, out of 70 appointees having such lien, 11 were selected by the GPSC and 4 could be continued against clear vacancies available after accommodating the GPSC selectees and ad hoc appointees. But the repatriation could only be made if and when the High Court vacated status quo orders. The Committee further noted that, out of 341 lecturers who were presently working on ad hoc basis, 77 were already selected by the GPSC. It was found that, on account of availability of vacancies as per permissible strength and after accommodating GPSC selectees, several posts continued to be available against which 122 ad hoc lecturers could be continued. It was noted that, in a few subjects, appointments were in excess of the permissible posts which had been worked out as per the UGC norms, and that the services of 22 ad hoc appointees will have to be declared surplus with varying length of service in different subjects, on the principle of "last come first go". The Committee further noted that, for giving appointment to all 335 GPSC selected candidates, services of 120 ad hoc appointees will have to be declared surplus forthwith. It was observed that, in view of the government policy to start government colleges in tribal talukas where there was no college available, four new government colleges were started this year, and similarly, some more colleges were likely to be opened next year and keeping in view these aspects, the Government had taken a lenient view with regard to regularisation of ad hoc appointees which could be considered by the State Government under Article 309 of the Constitution, as a one-time measure. It was then stated in the affidavit that, in view of the policy decision taken by the High Level Committee, it was decided to repatriate the ad hoc appointees working in the government colleges, on lien, back to their respective cadres subject to the vacation of the interim orders of the High Court so as to enable the State to implement its policy decision. It was also stated that, pursuant to the said decision, order of appointment in respect of 95 candidates selected by the GPSC were issued on 27th August 2001 against clear vacancies. The petitioner of Special Civil Application No. 2395 of 2001 who was selected by the GPSC was one such candidate who was given appointment. 4.3 In the further affidavit dated 18th October 2001 in Special Civil Application No. 2992 of 2001, it was stated that some of the petitioners had withdrawn their petitions and they therefore could not approach the High Court again, on the principle of res judicata. Statement at Annexure "A" of that affidavit in reply showed the details of such persons who had unconditionally withdrawn their petitions. 5. In the group of Special Civil Application No. 841 of 1998 and 17 other matters, including those which were filed in the year 1990 by the ad hoc lecturers who were apprehending termination of their services on the ground that the GPSC selected candidates would replace them, the learned Single Judge, by his judgement and order dated 12th May 1999, holding that in the eventuality of the availability of the selected candidates, these petitioners had no right to continue on the post and immediately on joining of the selected candidates, the respective petitioner would have to relinquish the post, directed the GPSC to complete the selection process in different subjects for the post of lecturers within six months from the date of the receipt of the order. The Court observed that ad hoc and temporary appointments give rise to manifold litigations and a sense of instability in service resulting in frustration and dissatisfaction amongst the appointees. It was observed that the time has come where the Court has to take appropriate steps and measures to see that the State of Gujarat, its functionaries and officers work within the framework of the Constitution as well as to see that, because of inaction or omission, unnecessary and avoidable litigations may not come before the Court. In Letters Patent Appeal No. 1057 of 1999 and cognate appeals, these petitioners who had appealed against the said order of the learned Single Judge, withdrew their petitions without reserving any liberty to file fresh petitions on the same cause of action. This is clear from the order dated 29-9-1999 passed by the Division Bench holding that the Letters Patent Appeals did not survive and allowing the original petitioners to make a fresh representation in the matter. On the basis of withdrawal of these petitions, it was rightly urged that, since no liberty was reserved by these ad hoc lecturers who had filed the earlier petitions and are also amongst those who had filed the present petitions from which these appeals have arisen, the present petitions were not maintainable at their instance on the same cause of action. However, there were other ad hoc employees who had filed the petitions for the first time and the same questions arose even in their case. Therefore, having regard to the general nature of the disputes involved, it would not be appropriate to shun consideration of the issues on any such technical ground and the decision that would be taken would obviously apply to all the similarly situated persons. 6. There was yet another group of petitions filed by ad hoc appointees as lecturers being Special Civil Application No. 2843 of 1971 and other cognate matters which came to be decided by Hon'ble Mr. Justice M.R.Calla on 9th March 2001. In all those petitions, a grievance was raised by the ad hoc lecturers that appointments were being given for a limited period till the end of the academic term and though no candidates were yet selected through the GPSC, they were not being given the salary for the vacation period though they were being re-engaged as ad hoc employees on the commencement of the new academic term. In that petition, the learned Single Judge issued certain directions in paragraph 15 of the judgement which included the direction that the services of such ad hoc employee shall not be terminated until a regularly selected candidate was available for appointment in the concerned subject. Direction No. (ii) is material to be noticed in the present context and therefore, it is reproduced hereunder:- "(ii) If regularly selected candidates are available, they will not be made to wait and such regularly selected candidates shall be given appointment and the ad hoc appointees shall have to make room for them. Of course in doing so, the government would follow the order of seniority according to the length of the service of the ad hoc appointees in the respective Branch / Speciality / Subject.