IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.4554 OF 1983 For Approval and Signature The Hon'ble Mr. Justice S.K. KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters 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? --------------------------------------------------------- SHRI D.D. UPADHYAYA & ORS. VERSUS THE STATE OF GUJARAT & ORS. --------------------------------------------------------- Appearance: MR PV HATHI for the Petitioners MR SN SHELAT, Addl. Advocate General for Respondent No.1 None present for Respondent No.2 MRS. KETTY A MEHTA for Respondents No.3,4,5, & 6 --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision:27/07/1998 C.A.V. JUDGMENT #. The petitioners, eight in all, Assistants working in the Legal Department of the Sachivalaya, Gandhinagar, have filed this special civil application and prayed for quashing and setting aside the orders annexure-G and G1, dated 8th August, 1983 and 20th August, 1983, respectively, under which private respondents were ordered to be promoted to the cadre of section officers. Further prayer has been made by the petitioners to prepare the seniority list of Assistants working in the Legal Department of Sachivalaya, after treating the orders at annexure-C and annexure-D as ineffective and void for all purposes. Under annexure-C services of private respondents as Legal Assistants, were regularized and they were appointed to officiate as Assistants in the Legal Department, in exercise of the powers conferred by Rule 16(ii) and (iii) of the Gujarat Civil Services (Classification and Recruitment) Rules, 1967 (in short referred hereinafter as 1967 Rules) and in relaxation of the provisions of Rules 8, 9 and 10 of the said Rules. This has been stated to be done in the interest of public service. Under order annexure-D dated 25th April 1978 six persons named therein inclusive of private respondents were ordered to be granted exemption from passing of post entry training examination. #. The facts of the case are that all the petitioners were recruited as Assistants in the Legal Department of Sachivalaya on being selected for the said post by the Gujarat Public Service Commission. After their selection, they have undergone the prescribed training and have passed the prescribed departmental examination and thereafter were regularly appointed on the post of Assistants. The service particulars together with the date of appointment and educational qualifications of the petitioners have been given in annexure-A. #. The posts of Assistants and Section Officers are upper division posts in the Sachivalaya. Recruitment and other service conditions in the upper division of the Secretariat Service are regulated under the rules framed under Article 309 of the Constitution, known as Assistant (In the Upper Division of the Subordinate Secretariat Service) Recruitment Rules, 1966 (hereinafter referred to as the "Rules 1966"). Under the said Rules appointment on the post of Assistant is required to be made first by direct selection on the basis of the result of competitive examination held by the Gujarat Public Service Commission or by transfer from amongst Stenographers (Grade I) in the Secretariat Service; and second - by promotion of a person of proved merit and efficiency from amongst the members of the joint cadre of clerks and English and Gujarati Typists, etc., For being eligible for appointment by selection through GPSC a candidate is required to hold degree in Arts, Science, Law etc., and the selected candidate shall have to pass Gujarati or Hindi examination according to the Rules and to undergo prescribed training and pass prescribed departmental examination. #. There is no dispute that the training and departmental examinations are prescribed under the Rules 1966, and only after taking the aforesaid training and passing the examination a candidate can be appointed on the regular post of Assistant. The Gujarat Public Service Commission ("GPSC") held competitive examination for filling up the posts of Assistants in Secretariat intermittently after coming into force of the Rules 1966. These competitive examinations, as per the petitioners' pleadings in the special civil application, were held in the year 1970, 1972, November 1974, December 1976 and December, 1978. Special examination was held for the Assistants of the Legal Department in the year 1979. #. One Mr. N.V.Shah was Deputy Secretary in the Legal Department of the Sachivalaya. Though the recruitment to the post of Assistants were to be made through the GPSC he had got his daughter, respondent No.5 herein, and others, the respondents No.3 to 4 and 6, appointed to the post of Assistants through Employment Exchange. The appointments of the aforesaid persons were stated to be illegal, being dehors the recruitment rules of 1966. Not only the entry of these respondents was bad and illegal, what the petitioners have stated that through the helping hand of Deputy Secretary Mr. N.V. Shah they further got their regularization in service on the post of Assistant by resorting to Rule 16 of the Rules, 1967. The matter is not ended here, what the petitioners urged, but they were further exempted from undergoing training and passing the departmental examination. There was nothing in the interest of public service, the petitioners submits, to confer the status of regular employees to these private respondents who have manipulated their entry in service from back door. So both the orders at annexures-C and D dated 19th February, 1976 and 25th August, 1978 respectively were challenged on the ground of being arbitrary and illegal. The consequences of those two orders resulted in assignment of higher seniority to these persons over the petitioners who are regularly recruited after having been selected by the GPSC on the post of Assistants. The petitioners urge that they came to know for the first time by circular dated 26th April,1983 under which seniority list of Assistants were published showing therein position as on 1-1-1983, and the private respondents who were not so far included in the seniority list were shown at serial No.5 to 8 i.e. above the petitioners. Thus the petitioners protested against the those notifications annexure-C and D, on coming to know about the same, by filing representation dated 25th May, 1983. Reference has been made by the petitioners to the opinion of the Secretary of the Legal Department giving in the case of Mr. K.C.Munia in the matter of recruitment and passing of departmental examination of Assistants. It has further been stated that this very Department in the case of similarly situated employees have adopted a different standard. The objections filed by the petitioners vide representation dated 25th May, 1983 were not decided and, further, by orders dated 8th August, 1983 and 20th August, 1983, respondents No.3,4 and 5 were promoted though on purely temporary basis as Section Officers for a period of six months or till further further orders are passed. #. Affidavit in reply has been filed by Mr.V.K.Kothare, Deputy Secretary to Government, Legal Department, on 20th January, 1996. Affidavit in reply has also been filed on behalf of respondents No.3 to 6. The petitioners filed rejoinder affidavit in this case on 17th February, 1997. Affidavit in sur-rejoinder is filed by respondents No.3, 4 and 6. In pursuance to the order of this court dated 21.6.1997 the respondent State filed further affidavit on 31st July, 1997. #. From the further affidavits which have come on record it is not in dispute that the GPSC held competitive examination under Rules 1966 for recruitment of Assistants in October, 1966, October, 1967, November, 1974, December 1976. From the affidavit of respondent No.3 and 4 it is clear that both twice appeared in the competitive examination conducted by the GPSC for recruitment to the post of Assistants but they did not succeed. Respondent No.5 was appointed in the year 1967 and after his appointment the GPSC held examination for Assistants in the year 1970 but he did not appear therein. Respondent No.6 was appointed in the year 1967, but in the year 1970 he did not appear in the examination held by the GPSC #. The learned counsel for the petitioners urged that the very entry of respondents No.3 to 6 as Assistants in the Legal Department of the Secretariat was as a result of nepotism and favouritism. These appointments of respondents No.3 to 6 were made dehors the Rules 1966. When the appointments of those respondents were illegal, regularization of their appointment resorting to Rule 16 of Rules 1967 is another piece of favouritisms and nepotism. These persons had sufficient opportunity to compete in the examination but in case of two respondents they failed twice and in case of other respondents they have not availed of that opportunity. Regularization of the services of these persons on the post of Assistant under rule 16 of the Rules 1967 cannot be said to be in the interest of public service. They were not only given higher seniority, but as a result thereof they have stollen march over the rights of the petitioners for appointment by promotion to the next higher posts. It is not a matter of promotion to the post of Section Officers, but in the Legal Department, there are few chances of promotion to the next higher post, and as these four persons have been placed above the petitioners their future prospects of promotion are completely being affected. #. Lastly the learned counsel for the petitioners submitted that even if these persons were given temporary appointment till regularly selected candidates from GPSC are made available that is understandable, but continuation of these persons after availability of selected candidates is in contravention of rules. Another contention has been raised by the counsel for the petitioners that before regularization of services of respondents No.3 to 6 the State Government has consulted the Public Service Commission and the Gujarat Public Service Commission has specifically declined to approve their demand. So the action to regularize the appointments of the respondents No.3 to 6 under impugned order is bad in law. In support of his submissions, the learned counsel for the petitioners placed reliance on the following decisions: (i) AIR 1994 SC 1808 - J & K Public Service Commission etc. v. Dr.Narinder Mohan and Ors. etc. etc. (ii) AIR 1996 SC 2775 - Dr.Surinder Singh Jamwal & Anr. v. State of Jammu & Kashmir & Ors. (iii) 1997(1) SCC 245 - Union of India & Ors. v. Mahender Singh & Ors. ##. Mr. S. N. Shelat, Additional Advocate General, appearing for the State of Gujarat, contended that the State Government has power to regularize such appointments under Rule 16 of the Rules 1967, and that power is not subject to judicial review of this court merely because the petitioners who got birth in the Department much after the entry of respondents in the Department have chosen to challenge the orders after considerably long delay. Rule 16 of the Rules 1967 gives sufficiently wide powers to the State Government to regularize any appointment where it is considered to be in the interest of public service. Mr. Shelat submitted that all these respondents are law graduates and when their appointments were made as Legal Assistants, sufficient number of law graduates were not available and therefore it was thought in the interest of public service to regularize their appointment by resorting to Rule 16 of Rules 1967. It is contended that the matter of regularization of services of these persons were taken upto the higher level in he Government, and after examining all the aspects of the matter this decision has been taken. It is urged that these persons were already working for years together, and gained sufficient experience in the Department, and therefore if exemption is given to them from appearing in the examination, no illegality is committed by the respondents. Lastly, it is urged that these respondents are in service for last about 30 years and equity demands that this Court may not interfere with the impugned orders. In support of his contentions learned counsel Mr. Shelat has placed reliance on the following decisions: (i) XVIII GLR 814 - Naroda Nagar Panchayat, Ahmedabad v. State of Gujarat & Ors. (ii) JT 1997(2) SC 385 - State of Andhra Pradesh & Anr. v. Dr.Rahimuddin Kamal. (iii) 1994(4) SCC 269 - Indian Nut Products & Ors. v. Union of India & Ors. (iv) JT 1990(1) SCC 278 - J.C.Yadav & Ors. v. State of Haryana & Ors. Concluding the arguments the learned Additional Advocate General urged that after so many years and more so when these private respondents have settled in their life, even if the impugned orders are held to be illegal same may not be quashed and set aside. ##. Smt. Ketty Mehta, learned counsel appearing for respondents No.3 to 6 has adopted the arguments advanced by the learned Additional Advocate General. ##. In the rejoinder the learned counsel for the petitioners submitted that the respondents have failed to produce any record or material whatsoever to show that at the relevant time there were dearth of law graduates. It has next been contended that length of service is not at all relevant consideration for regularization of services of persons who have been illegally inducted in the department. He placed reliance in support of this contention on the decision of this Court in special civil application No.4890/83 and cognate matters decided on 29th January, 1997. It is further contended that the question of equity does not arise in favour of the respondents. In the present case, none other than the Legal Department has made illegal induction of the respondents No.3 to 6 and further they were continued in the services for years together despite of the fact that the selected candidates were made available by the GPSC and in such case if lenient view is taken then there will be no end to such illegal appointments. In support of this contention the learned counsel for the petitioners placed reliance on the decision of the Hon'ble Supreme Court in the case of Ahmedabad Municipal Corporation v. Virendra Kumar Jayantibhai Patel, reported in JT 1997(7) SC 14. The counsel for the petitioners submitted that merely because decision has been taken by the Government it is not immune from judicial scrutiny by this Court under Article 226 of the Constitution of India. Lastly, it is urged that there is no delay in approaching to this Court by petitioners immediately after accrual of cause of action to them. ##. I have given my thoughtful consideration to the respective contentions made by the learned counsel for the parties. ##. On 21st June, 1997 this Court directed the respondent State Government to make statement on the points given in the order. The respondent State filed affidavit and stated that respondents No.3, 4 and 5 were appointed on 16.2.1965, 11.3.1966 and 15.5.1967, on their names having been sponsored by the Employment Exchange, Ahmedabad. Respondent No.6 was appointed on 14.8.1967. In the affidavit it is admitted that the record of the year 1965-66 as regards the requisition made to the employment exchange is not available. In the year 1967 requisition was stated to be made twice, out of which only one requisition is said to be available on record. In the year 1967 it appears that requisition was sent for five posts. In the reply to question No.3 the respondents stated that appointment of respondent No.6 was made by selection committee constituted of three members named in the affidavit. These three members were two Deputy Secretary of the Legal Department, and one Under Secretary of the same Department. However, the respondents have not stated that appointment of respondents No.3, 4 and 5 were made after selection made by the Selection Committee. Reply is given only as regards to the selection of respondent No.6 as it comes out from the reading of this affidavit. The fourth question which has been formulated by this court calling for reply from respondents is relevant and I consider it to be proper to reproduce the same here: "How many law graduates were recruited by the GPSC in the year 1965, 1966, 1967 and 1971. As per the respondent's reply, selection was also held by GPSC for these posts in the year 1970 and as such it has to be informed as to how many persons with qualification of Law Graduation were selected in that year?" Reply has been given that prior to 1992 recruitment of Legal Assistants for Legal Department was made by General Administration Department through the GPSC and, therefore, Legal Department has called for information from G.A.D. G.A.D. informed the Legal Department by its letter dated 16.7.1997 that the required records of the year 1965 to 1971 are not available, and it is not possible to furnish the said information. It has further been stated that the Legal Department also called for information from the GPSC by its letters dated 11.7.1997 and 19.7.1997, but the information is still not received. Questions No.6 and 7 are also very relevant and I consider it proper to reproduce the same here: "(6) Admittedly these private respondents were not successful in the competitive examinations held in the year 1966 or 1967. Then why their services were not terminated. The reasons may be given in this respect. (7) Despite non-selection , how they were continued in service is a matter to be explained." With reference to these two question the reply given is also very relevant and I am constrained to say that the respondents have purposely not given reply to the material part of the questions under the pretext that the relevant record is not available with the Legal Department, and therefore it is not possible to know as to whether the question of terminating services of respondents was considered or not after respondents No.3 and 4 were declared unsuccessful in the competitive examination held by the GPSC in the year 1966 or 1967, or as to why their services were not terminated and how they were continued in service. To avoid giving reply to these vital questions the respondents in the affidavit reiterated that these persons were appointed in the Legal Department through employment exchange as sufficient law graduates were not available at the relevant time for the post of Assistants on the legal side of the Legal Department. The purpose and intention behind such appointments were given out that the Government work should not be hampered or adversely affected and further the Government work should not suffer because of the posts of Assistants remaining vacant. So further impression has been given out that as sufficient number of law graduates were not available and the work of Legal Department may not suffer, possibly their services would not have been terminated or they would have been continued. On the record of this special civil application letter of the GPSC dated 30th July, 1997 has been produced by the respondents. The GPSC has written this letter to the Secretary, Legal Department, in response to their letter dated 19th July, 1997. A statement has also been attached to this letter. The GPSC has also shown its inability to give out that in the selection which has been held in the years given in the letter how many law graduates applicants were there. The GPSC stated that all the relevant record has been forwarded to G.A.D. at the relevant time. So G.A.D. has not given any information to this court, and GPSC in its turn has stated that the record is with G.A.D. From the statements enclosed to the said letter it is clear that in the year 1965 as many as six law graduates were recommended for appointment on the post of Legal Assistants. In the year 1966, 125 candidates were recommended, out of which five were stated to be law graduates. In the year 1968, 51 candidates were recommended out of which three were stated to be law graduates. In the year 1971 selections were held by the GPSC and as many as 17 candidates were recommended for appointment, out of which only one is stated to be law graduate. Respondents No.3 to 6 admitted that - (1) respondent No.3, i.e. B. G.Trivedi had appeared in the examination held by the GPSC for selection to the post of Assistant twice; Respondent No.4 Mr. V. M. Pancholi had also appeared twice before the GPSC for selection, but both failed. Respondents No.5 and 6 have never appeared in the GPSC examination for their selection to the post of Assistant. Respondents No.5 and 6 have also filed affidavit on record and they admitted that in the year 1970 the GPSC held the competitive examination for the post of Assistants, but respondent No.5 had not appeared in the examination due to ill health. Similarly statement has been made by respondent No.6 that she could not appear in the examination in the year 1970 as her baby's condition was abnormal. So the resultant position is that respondents No.3 and 4 appeared before the GPSC twice, but they failed; and respondent s No.5 and 6 never appeared in GPSC examination. (emphasis supplied) ##. During the course of dictation of the judgment in this case, I again felt it necessary to get certain more information from the Government on some points. On 29th November 1997, I ordered the State Government to give information on the points namely, (i) when the requisition for the recruitment to the post of Assistants in the Departments of Sachivalaya, in response to which the competitive examination for recruitment to the post of Assistants in the Departments of Sachivalaya was held in October 1965, was sent to the GPSC, (ii) when the requisition for recruitment to the post of Assistants in the Departments of Sachivalaya in pursuance of which the competition examination was held in October, 1966, was sent to the GPSC, (iii) how many sanctioned posts of Assistants were there in the Legal Department of the Sachivalaya in the years 1966 and 1967 and how many vacancies were available in these two years, (iv) in the recruitments which have been made in the years 1965, 1966 and 1967, 6, 5 and 3 law graduates respectively were recommended by the GPSC for appointment to the post of Assistants, and the Government was directed to disclose where those persons have been given the appointments. (v) In reply affidavit, in para-2 thereof, the respondent-State has come up with a case that due to non availability of law graduates in sufficient number through the GPSC, the State Government had, in consultation with the GPSC, appointed the respondents No.3 to 6 as Assistants through Employment Exchange between 1965 to 1967, but relevant material was not produced on record of this Special Civil Application, and as such, the State Government was directed to produce on record of this Special Civil Application, the relevant papers of the consultation with the GPSC of the appointments of the respondents No.3 to 6 as referred in the reply, (vi) the State Government was further directed to produce on record of this Special Civil Application, the appointment orders of respondents No.3 to 6, (vii) the learned counsel for respondents No.3 to 6 was also directed to produce on record of this Special Civil Application the appointment orders of respondents No.3 to 6 as well as the orders of extension of their services, if any. ##. In response to the said order, the learned counsel for respondents No.3 to 6 has not produced anything on record of this Special Civil Application. (emphasis supplied). However, on behalf of the State of Gujarat, an Affidavit of Mr.V.M.Kothare, Deputy Secretary, Legal Department of the Government of Gujarat, sworn on 17th day of December 1997, has been produced on record which is at page No.125 of the paper book. The contents of the Affidavit are to be taken briefly, which are as under: In October 1965 and October 1966, requisitions were sent to the