SCA/1337/1995 of NAYANABEN M. GANDHI & 1 Vs STATE OF GUJARAT & 3 on 11 December 1995

ORAL JUDGMENT:

The petitioners of these petitions have beenappointed as Lecturers in different disciplines ofGovernment Colleges at different places in the State afterhaving been selected in the local selection. It is not indispute between the parties that the post of Lecturers fallwithin the purview of the Gujarat Public Service Commission,that is, regular appointments on these posts are to be madeonly on the recommendation from the select list prepared bythe Gujarat Public Service Commission after making openselection. The petitioners were given appointment from timeto time on ad hoc basis for fixed term terminable with theend of the academic cession. Two-fold prayers have beenmade by the petitioners in these writ petitions. In specialcivil applications No.2396 and 3206 of 1995 it is prayedthat the respondents may be directed to regularise theservices of the petitioners as lecturers and not toterminate their services without prior approval of thisCourt. A further prayer has been made that the respondentauthorities be directed to provide reasonable opportunity tothe petitioners to get selected by the Gujarat PublicService Commission for regular appointment. Though theprayers to regularise their services and to give themreasonable opportunity to get selected by G.P.S.C. arecontradictory, this point no more detains me any further asthe learned counsel for the petitioners very fairlysubmitted that he is given up the prayer regarding issue ofwrit of mandamus to regularise the services of thepetitioners. He very frankly conceded that in view of thedecision of this Court in L.P.A. No.180 of 1995 decided on13-6-1995, this court may not possibly issue writ ofmandamus to the respondents directing to regularise theservices of the petitioners only on the basis that they areworking since long and having been appointed after localselection.

2. The grievance in substance is that the petitionershave been appointed after local selection, though for fixedterm but on condition that their services will come to anend on the availability of selected candidates; but therespondents cannot dispense with their services andsubstitute them with other adhoc appointees. It has nextbeen contended that so long as the selected candidatesthrough G.P.S.C. are not made available the respondents arenot justified in dispensing with the services of thepetitioners.

grievance made by the learned counsel for the petitioners.It is true that no selected candidates have been madeavailable so far by G.P.S.C. Mr. Bambania, learned counselfor the respondents specifically conceded that thatsituation has not arisen so far. But he contended that itis a case of fixed term appointment and as such by afflux oftime it comes to an end, and as and when the Government isin need of teaching staff again it is competent to give themreemployment on same terms. In L.P.A. No.180 of 1995,decided on 13-6-1995 Division Bench of this Court (Coram:B.N.Kirpal, CJ (as he then was) and H.L.Gokhale,J) has heldthat adhoc appointees whose appointments were for fixed termwith further condition to be terminated on the availabilityof selected candidates of G.P.S.C. have to make room forthe selectees. This position has not been disputed by thelearned counsel for the petitioners that the petitionershave to make room for the selected candidates, but hecontended that such situation has not arisen and as suchthere is no justification for terminating the services ofthe petitioners.

4. In this connection reference may be made to thedecision of the Supreme Court in the case of State ofRajasthan vs. Rajendra Kumar Ravat, 1989 Suppl.(2) SCC 268.In the case before the Supreme Court, termina..R

services of legal assistants appointed on adhoc basis wasthe outcome of regular selection of candidates. There thetemporary appointees had offered themselves as candidatesbefore the Public Service Commission, but have not beensuccessful. Question arose as to whether those temporaryappointees whose services were terminated on availability ofselected candidates and others who have appeared before thePublic Service Commission but not selected, could be giventemporary appointment on the posts which remained unfilledafter adjusting all the selected candidates. In para 8 ofthe judgment the Supreme Court held that even if thetemporary appointees work for years together and they arecontinued with the approval of the Public ServiceCommission, they have no right of regularisation whatsoever.The relevant observations of the Supreme Court reads asunder:

" There is no dispute that the respondents had offered themselves as candidates before the Public Service Commission and have not been successful. On that footing it has been contended relying upon the decision of this Court in the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla, that the persons of this category are no more entitled to lay claim on the basis of termination of their employment under Rule 30. We agree that the same is the position in law.

It has been stated before us by appellant's counsel that as on today the sanctioned strength of Legal Assistants is 126; but that is disputed on behalf of the the respondents. It is difficult for us to determine the exact number and that must be left to the State Government. In the event of there being vacancies in the sanctioned posts the same would be available to be filled up under Rule 30. It has to be taken note of here that seven of the Legal Assistants were recruited in 1982 under Rule 30 and have been continuing with the periodic approval of the Public Service Commission. The rule nowhere contemplates

regularisation of such recruitment. Under Rule 30 the appointments are bound to terminate in the event provided in the proviso of the rule. Therefore, their continuance was not correct. The State Government shall take immediate steps to fill up the vacancies as required under the rules by sending the requisition to the fill up the vacancies as required under the rules by sending the requisition to the Public Service Commission. On the basis of the determination of the exact number of vacancies, the State Government will have the determination of the exact number of vacancies, the State Government will have also to require the Public Service Commission to recruit for the remaining vacancies. Until such recruitment is made, the seven Legal Assistant who have been continuing from1982 and are not parties to the proceedings may continue. For the remaining vacancies (after the reserve list is exhausted) the State Government is directed to appoint out of the persons who the proceedings may continue. For the remaining vacancies (after the reserve list is exhausted) the State Government is directed to appoint out of the persons who were already in service and whose services have been terminated following the rule indicated by the High Court, namely, those who have put in the maximum period of service shall be preferred. The State Government shall send the requisition to the Public Service Commission without delay and we direct the Public Service Commission to give priority to make the selection as early as possible. The judgment of the High Court is modified. The State Government shall make temporary appointment as directed above withi.R

civil appeals are disposed of with no order as to costs."

The Supreme Court in the aforesaid case insisted thatwhatever vacancies remained after adjusting the selectedcandidates, shall be filled up by regular selection as earlyas possible.

5. The action of the respondents not to fill up theposts regularly and to go on making adhoc appointments isnot reasonable. It really works very hard in case a person,after working for years together, is, at one point of time,asked to go home as he has not been selected for the postand other selected candidates are made available. Adhocappointments are to be made where there is compellingurgency and the regular appointments cannot be made within ashort period by G.P.S.C. Here is a case where thepetitioners are working on adhoc basis for a considerableperiod. Why such contingency is allowed to occur?.Reasonably, adhoc appointments are understandable for shortduration, but to continue adhocism for years togetherdeserves to be deprecated. No reason whatsoever has beengiven by the respondents as to why necessary requisitioncould not be sent to G.P.S.C. for filling up these posts byregular appointments. This is perhaps to make appointmenton adhoc basis only for fixed term, reserving their right togive fresh appointments and/or to substitute the adhocappointees by other adhoc appointees which is not inconsonance with the Constitutional mandate. Otherwise alsoit is not in the larger public interest because for want ofsecurity in service or on account of the hanging sword oftermination over his head, a teacher may not do justice tohis work of teaching the students. A teacher who is securedin employment will certainly work with all zeal andenthusiasm. Time and again cases are coming before thisCourt and also before the Supreme Court where termination ofservices of adhoc appointees are made after long time. Itis a different matter that those persons could not beprotected, but at the same time this type of terminationwould be be painful to the petitioners who are sent backwithout any relief. A person by working temporarily maysettle himself and after working for some years if hisservices are terminated, then it will have seriousrepercussions, as it will affect not only the petitioner butall the members of his family. These are hard realities,but unfortunately, despite catena of judicial pronouncementsas well as deprecation of the practice by the Courts, no improvement is seen. On the contrary the situation isbecoming worse. In the case of Rajendrakumar Rawat, some ofthe petitioners were working for eight years before theirtemporary services were terminated. Therefore the SupremeCourt directed the State Government to send requisition tothe P.J

direction was issued to the Public Service Commission tomake selections as early as possible.

6. In special civil application No.1137 of 1995 theonly prayer made by the petitioner is to allow her the gradeincrements from 1-1-1989. The petitioner in this case alsowas appointed as lecturer on adhoc basis by local selection.This claim has been based on Government Circular dated6-1-1990. In support of the claim the petitioner has alsoplaced reliance on the interim order which has been passedby this Court in special civil application No.5721 of 1992on 4-12-1995. The interim order which has been passed bythis Court in the aforesaid case reads as follows:

"Rule. By way of ad interim relief the respondent authorities are directed to pay the petitioner their annual increments from July 1995 and continue the.R

Arguments

file undertaking to this Court within fifteen days from today to the effect that in the event they fail in the petition they will return the amount received by them with 12% interest to the respondents."

Learned counsel for the respondents Shri Bambania contendedthat the grade increments are permissible to lecturers whohave been regularly appointed and not to lecturers who havebeen appointed on adhoc basis for fixed term. Thepetitioner in this writ petition is not getting gradeincrements from 1-1-1989 as per her case. Now as I amgiving directions to the respondents to make regularselection I do not consider it a fit case where anydirection is to be issued at this stage. In case thepetitioner is selected for the post, which is moreimportant, the question of giving her grade increments forthe period of ad hoc service may be considered at a laterstage. This writ petition is disposed of with the directionthat after regular selection is made in pursuance of thedirection of this Court, which I am giving just now, itshall be open to the petitioner to make appropriate claim inthis respect to the concerned authority first and thereafterin case it is decided against her it will be open to her toapproach this Court.

disposed of with the direction that the respondent No.1State of Gujarat and respondent No.2 -Commissioner of HigherEducation will take necessary steps immediately to sendrequisition to the Gujarat Public Service Commission forselecting candidates for the posts of lecturers which areavailable at different Government Colleges in the State indifferent disciplines. Respondents No.1 and 2 will send therequisition for selecting candidates for both permanent andtemporary posts. The posts on which ad hoc appointees areworking shall be considered to be vacant posts. However,the petitioners in these writ petition have their right toapply for the posts and necessary relaxation in age, if bythat time they become overaged, may be considered to begiven, if they were within the age limit when they wereappointed on ad hoc basis. Necessary exercise in thisrespect may be undertaken by respondents No.1 and 2 within aperiod of one month from the date of receipt of certifiedcopy of this judgment, including the exercise ofdetermination of vacancies, and within next one month thenecessary requisition may be sent to the Gujarat PublicService Commission. Gujarat Public Service Commission isdirected to make selection of candidates as early aspossible after receipt of the requisition for the posts, butnot later than six months thereafter. Respondents No.1 and2 are directed to send copy of this order along with therequisition for the posts to the Gujarat Public ServiceCommission. The petitioners shall be allowed to continue towork as lecturers for 8 (eight) months as aforesaid or tillthe day on which the duly selected candidates are available,whichever is earlier. Subject to the aforesaid directions,rule discharged. No order as to costs.

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