LPA/1342/2003 1/71 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No.1342 OF 2003 in SPECIAL CIVIL APPLICATION No.6441 OF 2003 with LETTERS PATENT APPEAL No.1404 of 2003 in SPECIAL CIVIL APPLICATION No.5242 2003 with LETTERS PATENT APPEAL No.1409 of 2003 in SPECIAL CIVIL APPLICATION No.4596 OF 2003 with LETTERS PATENT APPEAL No.1410 of 2003 in SPECIAL CIVIL APPLICATION No.6311 OF 2003 with LETTERS PATENT APPEAL No.1411 of 2003 in SPECIAL CIVIL APPLICATION No.6039 OF 2003 with LETTERS PATENT APPEAL No.1412 OF 2003 in SPECIAL CIVIL APPLICATION No.4627 OF 2003 with LETTERS PATENT APPEAL No.1413 OF 2003 in SPECIAL CIVIL APPLICATION No.5756 OF 2003 with LETTERS PATENT APPEAL No.1414 OF 2003 in SPECIAL CIVIL APPLICATION No.4809 OF 2003 with LETTERS PATENT APPEAL No.1099 OF 2004 in SPECIAL CIVIL APPLICATION No.5242 OF 2003 LPA/1342/2003 2/71 JUDGMENT with LETTERS PATENT APPEAL No.1485 OF 2004 in SPECIAL CIVIL APPLICATION No.5551 OF 2003 with LETTERS PATENT APPEAL No.1424 OF 2003 in SPECIAL CIVIL APPLICATION No.4692 OF 2003 with SPECIAL CIVIL APPLICATION No.5934 OF 2003 with SPECIAL CIVIL APPLICATION No.1784 OF 2004 with SPECIAL CIVIL APPLICATION No.3557 OF 2004 with SPECIAL CIVIL APPLICATION No.3558 OF 2004 with SPECIAL CIVIL APPLICATION No.3938 OF 2004 with SPECIAL CIVIL APPLICATION No.282 OF 2004 with LETTERS PATENT APPEAL No.18 OF 2004 in SPECIAL CIVIL APPLICATION No.5755 OF 2003 with LETTERS PATENT APPEAL No.19 OF 2004 in SPECIAL CIVIL APPLICATION No.5753 OF 2003 with SPECIAL CIVIL APPLICATION No.1748 OF 2004 with SPECIAL CIVIL APPLICATION No.9048 OF 2004 with SPECIAL CIVIL APPLICATION No.705 OF 2004 LPA/1342/2003 3/71 JUDGMENT with SPECIAL CIVIL APPLICATION No.706 OF 2004 with SPECIAL CIVIL APPLICATION No.707 OF 2004 with SPECIAL CIVIL APPLICATION No.918 OF 2004 with SPECIAL CIVIL APPLICATION No.1670 OF 2004 with SPECIAL CIVIL APPLICATION No.2471 OF 2004 with SPECIAL CIVIL APPLICATION No.2742 OF 2004 with SPECIAL CIVIL APPLICATION No.2743 OF 2004 with SPECIAL CIVIL APPLICATION No.2914 OF 2004 with SPECIAL CIVIL APPLICATION No.3516 OF 2004 with SPECIAL CIVIL APPLICATION No.3668 OF 2004 with SPECIAL CIVIL APPLICATION No.3936 OF 2004 with SPECIAL CIVIL APPLICATION No.8228 OF 2004 with SPECIAL CIVIL APPLICATION No.18286 OF 2003 with SPECIAL CIVIL APPLICATION No.18287 OF 2003 with SPECIAL CIVIL APPLICATION No.18288 OF 2003 with SPECIAL CIVIL APPLICATION No.18289 OF 2003 LPA/1342/2003 4/71 JUDGMENT with SPECIAL CIVIL APPLICATION No.18290 OF 2003 with SPECIAL CIVIL APPLICATION No.18291 OF 2003 with SPECIAL CIVIL APPLICATION No.18292 OF 2003 with SPECIAL CIVIL APPLICATION No.18293 OF 2003 with SPECIAL CIVIL APPLICATION No.18294 OF 2003 with SPECIAL CIVIL APPLICATION No.18295 OF 2003 with SPECIAL CIVIL APPLICATION No.18296 OF 2003 with SPECIAL CIVIL APPLICATION No.18297 OF 2003 with SPECIAL CIVIL APPLICATION No.18298 OF 2003 with SPECIAL CIVIL APPLICATION No.18299 OF 2003 with SPECIAL CIVIL APPLICATION No.18300 OF 2003 with SPECIAL CIVIL APPLICATION No.18301 OF 2003 with SPECIAL CIVIL APPLICATION No.18302 OF 2003 with SPECIAL CIVIL APPLICATION No.18303 OF 2003 with SPECIAL CIVIL APPLICATION No.15 OF 2004 with SPECIAL CIVIL APPLICATION No.18 OF 2004 LPA/1342/2003 5/71 JUDGMENT with SPECIAL CIVIL APPLICATION No.19 OF 2004 with SPECIAL CIVIL APPLICATION No.7386 OF 2004 with SPECIAL CIVIL APPLICATION No.283 OF 2004 with SPECIAL CIVIL APPLICATION No.286 OF 2004 with SPECIAL CIVIL APPLICATION No.287 OF 2004 with SPECIAL CIVIL APPLICATION No.288 OF 2004 with SPECIAL CIVIL APPLICATION No.290 OF 2004 with SPECIAL CIVIL APPLICATION No.295 OF 2004 with SPECIAL CIVIL APPLICATION No.423 OF 2004 with SPECIAL CIVIL APPLICATION No.663 OF 2004 with SPECIAL CIVIL APPLICATION No.702 OF 2004 with SPECIAL CIVIL APPLICATION No.13440 OF 2003 with SPECIAL CIVIL APPLICATION No.13873 OF 2003 with SPECIAL CIVIL APPLICATION No.13964 OF 2003 with SPECIAL CIVIL APPLICATION No.13756 OF 2003 with SPECIAL CIVIL APPLICATION No.270 OF 2004 LPA/1342/2003 6/71 JUDGMENT with SPECIAL CIVIL APPLICATION No.1577 OF 2004 with LETTERS PATENT APPEAL No.1368 OF 2003 in SPECIAL CIVIL APPLICATION No.6312 OF 2003 with LETTERS PATENT APPEAL No.1369 OF 2003 in SPECIAL CIVIL APPLICATION No.6315 OF 2003 with LETTERS PATENT APPEAL No.1370 OF 2003 in SPECIAL CIVIL APPLICATION No.6314 OF 2003 with CIVIL APPLICATION No.4152 OF 2004 in SPECIAL CIVIL APPLICATION No.1577 OF 2004 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? LPA/1342/2003 7/71 JUDGMENT ========================================================= CHARULATA B PATEL - Appellant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR.YATIN OZA, SENIOR COUNSEL WITH MS SONAL R SHAH for Appellant(s) : 1, MR.KAMAL TRIVEDI, ADDL. ADVOCATE GENERAL WITH MS.SANGEETA VISHEN, ASSISTANT GOVT. PLEADER FOR RESPONDENTS NO. ----MR.A.D. OZA, GOVERNMENT PLEADER for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE R.S.GARG and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 28/12/2005 ORAL JUDGMENT (Per:HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) All these matters involve common question, hence after hearing the learned advocates for the contesting parties, are decided by this common judgement. 2. The questions which arise for our consideration are; (i) Whether the appellants/ petitioners appointed purely on ad hoc basis for a fixed tenure after a selection held pursuant to an advertisement by the respective section/ department are entitled to regularisation in substantive capacity by an order of the Court? LPA/1342/2003 8/71 JUDGMENT (ii) Whether continuance for a long time entitles an ad hoc appointee to regularisation without its initial recruitment being regularised through prescribed Selection Agency, by giving necessary relaxation in the matter of age and qualification prescribed under various provisions of the Recruitment Rules in absence of Recruitment Rules expressly providing for such relaxation? (iii) What role the factors like legitimate expectations, equity, sympathy and human approach have to play while considering the claim of regularisation of ad hoc appointees on the ground that they had worked on the posts in question for quite some time? 3. The Letters Patent Appeals are filed against the judgement and order dated 25.11.2003 passed by the learned Single Judge disposing of a group of Special Civil Applications by a common judgement. The appellants-original petitioners serving on ad hoc basis were appointed by order dated 06.04.2002 They were paid salary in the pay scale of Rs.4500-7000/-. Termination order dated 27th March 2003 was served to LPA/1342/2003 9/71 JUDGMENT them intimating that the services of the appellants would stand terminated with effect from the date mentioned in the order, i.e. the date on which the term of the appellants expired. The appellants approached this Court by filing writ petitions contending that they were appointed after following the due procedure for recruitment as is required for regular appointments still the respondents being in the process of appointing these ad hoc employees on a fixed salary of Rs.3500/- for a fixed term. The termination was challenged and it was prayed that the same be quashed and set aside and the appellants be regularised in the services from the date of their appointment and they be paid salary as per the pay scale of junior pharmacist, i.e. Rs.4500-7000/-. By way of interim relief it was prayed that operation, implementation and execution of the order of termination dated 27.03.2003 be stayed and the respondents be directed to regularise the services of the petitioners from the date of their appointment and they be paid salary as per the pay scale of junior pharmacist, i.e. Rs.4500-7000/- and the respondents no.1 and 2 be directed not to appoint any other person on the post of the petitioners till regularly selected candidates are LPA/1342/2003 10/71 JUDGMENT available. 4. The matter was heard by the learned Single Judge and after considering the arguments of both the sides the learned Single Judge allowed the writ petitions in part. The respondents were directed to pay the pay scale of Rs.4500-7000/-, but the prayer to regularise them in service and to continue them in services till regularly selected candidates are available was refused. 5. These appeals are filed challenging the judgment and order of the learned Single Judge to the extent it is not favourable to the appellants. The challenge is mainly on the ground that though there is an urgent and acute need of the services of junior pharmacists, and no regularly selected candidates are available, not only that it is also not known as to when such regularly selected candidates would be available, still the learned Judge has not directed the respondents to continue the appellants in service as prayed for. It is also contended in these appeals that the appellants are discharging the same functions which are discharged by regular employees, that the posts held by the appellants are sanctioned posts, that the appellants possess all the requisite qualifications, for being appointed on LPA/1342/2003 11/71 JUDGMENT regular basis, therefore, the reliefs sought for ought to have been granted in toto. 6. The Letters Patent Appeals and the Special Civil supplications are contested by the respondents by filing reply contending various points which are considered at an appropriate place in this judgement. 7. The following facts are necessary for appreciation of the controversy involved in these matters. Special Civil Application No.4596 of 2003 was the first matter to be filed. It was filed on 07.04.2003 and the first order was passed on 09.04.2003, issuing notice returnable on 28.04.2003. The learned Judge was pleased to order that status quo as on the date of the order be maintained, and if the petitioners are in service they be continued in service till the next date. In response to the notice issued on 09.04.2003 on the returnable date, the learned Assistant Government Pleader appeared and on that day the Court was pleased to pass the following order: “Since the learned Assistant Govt. Pleader is LPA/1342/2003 12/71 JUDGMENT appearing in this matter it is not necessary for the petitioners to pay process for the purpose of service of the order of continuing interim relief, as it is the duty of the learned Assistant Govt. Pleader to inform his department.” The matter was adjourned to 06.05.2003 and ad interim relief was ordered to continue till the next date. On 09.05.2003 the learned Additional Advocate General appeared with the learned Assistant Govt. Pleader, and after hearing him the Court was pleased to continue the ad interim relief granted earlier till the next date of hearing. The matter was thereafter listed on Board on various dates. On 13.08.2003 the Court was pleased to adjourn the matter to 14.08.2003 and ordered that ad interim relief granted earlier to continue till further orders. On 14.08.2003 the Court granted leave to join 'Gujarat Gaun Seva Pasandgi Mandal', through its Secretary as party respondent and issued notice to the newly added respondent returnable on 01.09.2003. The Court ordered that the ad interim relief granted earlier shall continue. LPA/1342/2003 13/71 JUDGMENT On 01.09.2003 the Court passed the following order: “Rule returnable on 04.09.2003. All these matters may be listed immediately after urgent admission Board, if any. Both the learned advocates have assured the Court that they will proceed with the matter on that day. Interim relief, if any granted earlier to continue till further orders.” ... ...” As per the record next order was passed on 18.09.2003, which reads as under: “No one is present on behalf of the petitioners even in the second call. Hence S.O. To 29.04.2003. Office may notify this matter on a separate Board for final hearing.” However, the matter could be heard and decided only on 25.11.2003. These details are set out as the same will answer one of the important contentions raised on behalf of the appellants that they are in service for long and LPA/1342/2003 14/71 JUDGMENT therefore, length of service be taken into consideration while prayers made are granted/ rejected. It was on 09.04.2003 that the Court granted ex parte ad interim relief, it was continued upto 13.08.2003 being extended from time to time. On 13.08.2003 it was ordered to continue till further orders. 8. On 25.11.2003 the Court allowed the petitions to a limited extent. The Court was pleased to hold that: “(i) The petitioners have got no right to ask for regularisation of their services, as they have been appointed only on ad hoc basis and by way of tenure appointment; (ii)In case the Govt. decides to continue ad hoc appointment for the posts in question in view of the administrative exigencies, preference is to be given to those employees, who are already in service, and if services of any one of them are required to be terminated, the principle of “last come, first go” is required to be followed; and it will be open for the Govt. not to give fresh appointment orders on the expiry of the tenure orders. LPA/1342/2003 15/71 JUDGMENT However, if the Govt. decides to give fresh appointment orders, the claim of one who is already in service is required to be considered, and preference is required to be given to one who is already in service, instead of replacing the present petitioners by other new ad hoc employees.” 9. Besides, the Court passed a separate order in Special Civil Application No.4809 of 2003 and 12009 of 2003, which were filed by one Shri Vaghela Rajeshkumar Baldevbhai and Jigar Natvarlal Joshi respectively. It was submitted that these petitioners and 25 others, who had approached this Court earlier are not given fresh appointment orders. The order reads as under: “So far as the aforesaid two petitioners, viz. Vaghela Rajeshkumar Baldevbhai and Jigar Natvarlal Joshi and the 25 aforesaid employees, who have not been given any fresh appointment orders, are concerned, the respondents shall reconsider their cases for giving them fresh appointment if they are forming part of the original 137 posts, for which recruitment is LPA/1342/2003 16/71 JUDGMENT made and if any of their juniors is continued, on the basis of the principle of “last come, first go”, appropriate orders may be passed as regards the aforesaid set of employees. The Govt. shall consider the aforesaid question appropriately for the purpose of giving fresh orders to this set of employees. The Govt. is accordingly directed to consider their claim and pass appropriate orders within a period of one month from today. Till the Govt. takes appropriate decision in connection with the above employees, status quo grated earlier shall continue. Simply because these petitioners have approached this Court and status quo order is granted, that itself should not be made the basis for not giving even tenure orders which are given to other employees. Ultimately, if these petitioners are continued, they will be entitled to regular scale prescribed for the post till their tenure is over. It is, however, clarified that it will be for the Govt. to review the situation at the time of the expiry of a tenure appointment whether to continue such employee by giving fresh appointment orders, but at that time, as stated LPA/1342/2003 17/71 JUDGMENT earlier, the principle of “last come, first go” is required to be followed, as the one who is already in service is required to be preferred, instead of replacing such employee by way of another ad hoc employee.” (emphasis supplied) So far as the claim of Shri Ketan G. Pandya, one of the petitioners in SCA No.5551 of 2003 is concerned the same was negatived. The Court passed the following order: “.. .. so far as the rest of the five petitioners who have already been given contractual appointment on a fixed period and fixed salary are concerned they are required to be placed in the regular scale, which they were already getting at the time of their initial appointment and they will be entitled to have such benefit of regular scale, which was given in the first appointment order till their tenure comes to an end or till their services are continued by the Government, as per the exigencies of the administration.” The Court was also pleased to order that, LPA/1342/2003 18/71 JUDGMENT “So far as rest of the 25 petitioners are concerned, ultimately, if they are given fresh appointment orders, as indicated in the earlier part of this order, they are also required to be given regular pay scale, which was given to them at the time of their initial appointment and their case are also required to be treated at par with the set of other five employees who are already serving at present in the fixed salary.” The Court reiterated its earlier direction by saying that, “It is once again pointed out that even at the time when the tenure appointment comes to an end, it shall not be obligatory on the part of the State Government to continue the services of these ad hoc employees. However, in case the Government decides to make appointment of other ad hoc employees, naturally, at that time, the claims of these employees are required to be considered and the principle of 'last come, first go' is required to be followed so that it may not result in arbitrariness or heart-burn to the employees. However, it is clarified that in LPA/1342/2003 19/71 JUDGMENT case the tenure appointment of the petitioners is over, they shall have no right to hold the posts or to claim fresh orders unless the eventuality pointed out earlier exists or they are replaced by other junior employees.” 10. The petitioners being aggrieved of non grant/ refusal of part of the relief in Special Civil Application No.6441 of 2003 which was also disposed of by common judgement and order dated 25.11.2003 filed Letters Patent Appeal No.1342 of 2003. The same was admitted by the Division Bench (Coram: Bhavani Singh, C.J. & J.N. Bhatt, J.) on 16.12.2003. The Division Bench was pleased to pass the following order in Civil Application No.9161 of 2003 on 16.12.2003: “Subject to hearing the other side, till regularly selected candidates are available, services of petitioners be continued. Direct service is permitted.” The Division Bench (Coram: Bhavani Singh, C.J. & H.K. Rathod, J.) then passed order on 03.08.2004, which reads as under: LPA/1342/2003 20/71 JUDGMENT “Reply affidavit should have been filed by the Commissioner, Health, Medical Services and Medical Education (Health Division). Let it be done within two weeks, with copy to the appellants. Rejoinder, if any, be filed and matters posted on August 17, 2004.” After the order passed in Letters Patent Appeal No.1342 of 2003 in Special Civil Application No.6441 of 2003 on 16.12.2003 , other Letters Patent Appeals being No.1404 of 2003, 1409 of 2003, 1411 of 2003, 1412 of 2003, 1413 of 2003, 1422 of 2003 and 1423 of 2003 were moved and the same were admitted by order dated 26.12.2003 and the same were linked with Letters Patent Appeal No.1342 of 2003. In the respective Civil Applications filed in these Letters Patent Appeals, the Division Bench was pleased to issue rule and grant relief saying that, “Subject to hearing the other side till regularly selected candidates are available services of the appellants-applicants be continued.” LPA/1342/2003 21/71 JUDGMENT 11. On 17.08.2004 the Division Bench passed the following order in Civil Application No.9161 of 2003: “Petitioners were appointed in para medical service (Class III) during 2001 while some others between 2002 to 2003. They claim regularisation, having been appointed through advertisement and process of selection. However, respondents submit that they were appointed on ad hoc basis on fixed terms and conditions. The petitioners submit that they are qualified as per recruitment rules, advertisement dated April 4, 2001 and gained experience by this time. It seems, selection process must have made some headway by this time. Therefore, it may not be just and proper to disengage the petitioners at this stage, more so when they are serving the respondents since 2001. Consequently, they will continue to hold the post against which they have been appointed and paid the pay scale of the post. Interim relief made absolute. Civil Applications are disposed of.” LPA/1342/2003 22/71 JUDGMENT The Division Bench was pleased to pass the following order in Letters Patent Appeal: “Notice to respondent no.4 returnable on September 28, 2004, to state by which time the final list of selection would be ready and placed before the Court in sealed cover for perusal. List the Appeal on September 28, 2004.” 12. Order dated 17.08.2004, by which Civil Application No.9161 of 2005 in Letters Patent Appeal No.1342 of 2003 and other Civil Applications were decided was challenged before the Hon'ble the Apex Court by filing Special Leave to Appeal (C ) Nos.3694 to 3706 of 2004. In these petitions the Hon'ble the Apex Court vide order dated 01.02.2005 granted interim stay of order dated 17th August 2004. Later on these Special Leave to Appeals were disposed of by order dated 18.04.2005, which reads as under: “Leave granted. The challenge in these appeals is an interim order passed by the High Court in an appeal in effect staying the operation of the judgement LPA/1342/2003 23/71 JUDGMENT appealed from. The only reason that this Court had in turn stayed the operation of the interim order of the High Court was that no reasons were given by the Division Bench in support of its conclusion. We are told that the appeals are now being heard before the Division Bench of the High Court. In that view of the matter, no useful purpose will be served in keeping these appeals alive. Accordingly, we continue the interim order passed by this Court till the disposal of the appeals by the High Court. It is expected that the appeals will be disposed of as expeditiously as possible. We make it clear that this Court has not expressed any view on the merits of the dispute between the parties. The appeals are accordingly disposed of.” 13. After Letters Patent Appeal No.1342 of 2003 in Special Civil Application No.6441 of 2003 was admitted by the Division Bench (Coram: Bhavani Singh, C.J. & J.N. Bhatt, J.) on 16.12.2003 and interim protection was granted and continued directing the respondents to LPA/1342/2003 24/71 JUDGMENT continue the petitioners in service till regularly selected candidates are available, number of other petitions were filed being Special Civil Applications No.18262 of 2003, 18303 of 2003, 282 of 2004, 283 of 2004, 286 of 2004, 287 of 2004, 288 of 2004, 290 of 2004, 295 of 2004, 423 of 2004, 663, 702 of 2004, 705 of 2004, 706 of 2004, 707 of 2004, 918, 1670, 2471 of 2004, 2742 of 2004, 2743 of 2003, 2914 of 2004, 3516 of 2004, 3668 of 2004, 3936 of 2004, 15 of 2004, 18 of 2004, 19 of 2004, 7386 of 2004, 8228 of 2004 and 9048 of 2004 before the learned Single Judge. In all these matters the Court issued either 'notice' or 'rule' and granted interim relief on the same lines on which it was granted by the Division Bench. On 13.09.2004 all these petitions were heard for interim relief and the learned Single Judge, after hearing the learned advocates for both the sides was pleased to pass an order, the relevant part of which reads as under: “Accordingly, by way of interim relief, it is directed that the petitioners' services shall be continued till regularly selected candidates are appointed and the petitioners shall be paid salary in the regular pay scale which was given LPA/1342/2003 25/71 JUDGMENT to the petitioners at the time of their initial appointment. The petitions shall be listed for final hearing along with Letters Patent Appeal No.1342 of 2003 and connected matters. The second sets to be supplied by 10th October 2004.” 14. Accordingly, Letters Patent Appeals No.1342 of 2003 in Special Civil Application No.6441 of 2003 with other Letters Patent Appeals and Special Civil Applications with Civil Application No.4152 of 2003 in Special Civil Application No.1577 of 2003 were notified before this Bench. Mr.Y.N. Oza, the learned senior counsel for the appellants while opening his arguments submitted that by a Government Resolution No.KPA/1/ PR/ GR