MAHENDRAKUMAR R PATEL Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) Through these 11 petitions common grievance has been raised by ad-hoc appointees as Lecturers in various Colleges against the appointments being given to them for the terms of academic session only denying them the salary for the vacation period, subjecting them to termination at the end of academic session and reappointing them in the next session and termination of their services although no candidates selected by thye G.P.S.C. are available in the respective branch/speciality /subject and they claim continuity of service from the date of their initial appointment. I, therefore, propose to decide all these 11 Special Civil Applications by this common judgment and order as under:

(2.) Facts relating to Special Civil Application No.2843/91 are as under:- This is a petition filed by two petitioners, namely, Mahendrakumar R.Patel -Lecturer in Gujarati, Govt. Arts College, at Vansada, District - Valsad and Kumari Manjulaben D. Chauhan - Lecturer in Gujarati, Govt. Arts College, at Vansada, District - Valsad. Both these petitioners, claiming that they had been selected by Local Selection Committee as Lecturers in Gujarati subject for the Government Arts College, Vansada, District Valsad, filed the present Special Civil Application stating that their appointment orders have been issued by the Principal and this appointment was only upto the end of the first academic term of 1990-91 and that their services will be liable to termination when the candidates selected by the Public Service Commission report for duties or when these vacancies are filled in by transfer of lecturers from other Govt. Colleges. It is their case that no candidate selected by Public Service Commission had reported on duty and no Lecturers from any other Government College were transferred and posted against the posts held by them; yet the respondent No.3 i.e. Principal. Govt. Arts College at Vansada, District Valsad terminated the services of the petitioners with effect from 13.10.90 i.e. on completion of the first term of the academic year 1990-91. It is also stated by them that the post of Lecturers held by them were sanctioned by the Government on long term basis. It is their say that they were again appointed afresh for the second term of 1990-91 and they were appointed upto 5.5.91 on temporary basis for the second term of 1990-91 and the posts have been duly sanctioned by the Government on long term basis. Apprehending that their services will be terminated with the end of the second term of the Session on 5.5.91 the present Special Civil Application dated 20.4.91 was filed before this court on 20.4.91. When the matter came up before the court on 22.4.91 Rule was issued and the interim relief was also granted in the terms that the respondents are restrained from terminating the services of the petitioners only on the ground that the period of their appointment had expired coupled with the condition that as and when any candidate regularly selected by G.P.S.C. or other regular appointee is available and such appointee is required to be placed vice the petitioners, it would be open to terminate petitioners' services on that ground. It was also made clear that if there is any other lawful reason such as abolition of the post, it will be open for the respondents to terminate the services of the petitioners on that ground. Thereafter, petition has remained pending for all these years since 1991 but none of the three respondents have cared to file any reply whatsoever. No application was filed even for the purpose of modification or vacation of the interim order and the learned counsel for the petitioners submits that both these petitioners are still continuing as Lecturers in Gujarati in the Government Arts College at Vansada, District - Valsad without any interruption. Mr.D.P.Vora, learned counsel for the petitioners, has submitted that the selections were held for the post of Lecturers in Gujarati in the year 2000 and the G.P.S.C. has already sent its recommendation to the Government. However, so far no appointments have been made. He is not in a position to say as to whether the present two petitioners had appeared in these selections before the G.P.S.C. or not.

(3.) Facts relating to Special Civil Application No.1971/88 are as under:- This Special Civil Application was filed by two petitioners, namely, Smt.Jyoti K.Shah and Shri Sureshchandra K.Trivedi, Lecturer in Management in the Faculty of Commerce, Gujarat College, Ahmedabad and Lecturer in Commerce, Gujarat College, Ahmedabad respectively, claiming that they had been appointed as Lecturers on ad hoc basis pending the availability of the candidates to be selected by G.P.S.C. It is their say that the post held by them carry the pay scale of Rs.700-1600 with usual allowances, which was due to be revised retrospectively with effect from 1.1.1986 in pursuance of the recommendations of the Malhotra Commission. Both these petitioners claim that they possess educational qualifications as prescribed by Gujarat University to hold the post of lecturers. Petitioner No.1 has claimed that she had worked as lecturer from 1.8.84 till the end of the first term; 17.7.86 to 25.10.86; January 1987 till the end of second term; 1st January 1988 to 27/30 April 1988. Petitioner No.2 has claimed that he had worked from 8.12.85 to 24.12.85; 2.1.86 to 7.5.86; 17.7.86 to 25.10.86; 18.11.86 to 24.12.86; January 1987 to end of the term; 1st January 1988 to 29/30th April 1988. The petitioners have also stated that the posts held by them are full time posts on regular establishment sanctioned on long term basis and that they are also eligible for appointment on these posts on regular basis. The petitioners claim that although they had been appointed on ad hoc basis, such an appointment has in fact been made after their selection by a Selection Committee and that they had topped the select list. These petitioners filed the present petition dated 19.4.88 on 20.4.88 before this court with the prayer that the petitioners be deemed to have always been in continuous service ever since their initial appointments and they be held eligible for all the incidental benefits of continuity of service including salary for the vacations until they or any one of them happen to be displaced by the candidates selected by G.P.S.C. When this matter came up before the court on 21.4.88 rule was issued and by way of ad interim relief it was directed that the petitioners' services shall not be terminated and further that as and when regularly selected candidates by G.P.S.C. or any other regular appointees are available and such candidates are required to be appointed in place of petitioners, it will be open to the respondents to move this Court for modifying and/or for vacating ad interim relief. The respondents were also directed to file affidavit in reply latest by 31.7.88. This petition has also been pending since 1988 and even after the pendency of more than 12 years, none of the respondents have cared to file any reply whatsoever. This interim relief dated 21.4.88 was modified on 12.10.88 to the effect that in case any regularly selected candidate by G.P.S.C. or any other regular appointees are available and such persons are required to be appointed in place of the petitioners, Department will be at liberty to appoint them even without taking permission of this Court. It is given out that Mr.M.K.Joshipura, through whom the present Petition was filed, had expired during the pendency of the petition and, therefore, notice was sent to the petitioners and the same had been duly served upon the petitioners, but no appearance of any advocate has been filed on behalf of the petitioners in this matter. In this matter the averments made in the petition have remained uncontroverted. Facts relating to Special Civil Application No.2919/91 are as under:- Petitioner in this case, namely, Ashokkumar Lallubhai Patel, claims to be selected by a Selection Committee for appointment as Lecturer in Sanskrit. He was appointed as such in the Govt. Arts College, Vansada, District - Valsad. The appointment order dated 11.9.90 has been placed on record as Annexure "A". As per this appointment order, the petitioner's appointment was to end with the first academic term of the year 1990-91, but it was further mentioned in the body of the appointment order that services of the petitioner will be terminated when the candidates selected by G.P.S.C.. report for duty or when the vacancy is filled in by transfer. After the petitioner was appointed as Lecturer in terms of the appointment order dated 11.9.90 no candidates selected by G.P.S.C. had reported for duty and no Lecturer from any other Government College was transferred or posted against any of these posts on which the petitioner was working. Yet the services of the petitioner were terminated with effect from 13.10.90 on completion of the first term of the academic year 1990-91 and the post of Lecturer, on which the petitioner was appointed, was sanctioned by the Government on long term basis. The petitioner's say is that respondent No.3 i.e. Principal, Govt. Arts College, at Vansada, District Valsad had no authority to terminate the services of the petitioner. It is also the case of the petitioner that he was again appointed afresh for the second term of 1990-91 by the Principal, Govt. Arts College, at Vansada, District - Valsad as Lecturer in the same subject and new appointment order given to the petitioner appointing him upto 5.5.91 on temporary basis for the second term of 1990-91 has been filed with the Petition as Annexure "B". Apprehending that the petitioner's services were likely to be terminated from 5.5.91, the present petition was filed on 22.4.91 and when the matter came up before the Court on 23.4.91,Rule was issued and interim order was passed to the effect that the respondents were restrained from terminating the petitioner's services on the ground that the period of appointment had expired. It was further ordered that as and when any candidate regularly selected by G.P.S.C. or other regular appointee is available and such appointee is required to be placed vice petitioner, it would be open to terminate petitioner's service on that ground. It was also made clear that if there is any other lawful reason such as abolition of post, it will be open to the respondents to terminate the petitioner's services on that ground. In this matter affidavit in reply dated 21.9.95 has been filed by one Shri Shantilal B. Dhobi,Deputy Director of Higher Education. It has been pleaded that an ad hoc appointee has no right and that the petitioner is not falling within the sphere and zone of Government servant and/or civil servant. It has also been pleaded in this affidavit in reply dated 21.9.95 that the Government had issued executive instructions vide letter dated 6.1.90 making it clear that the person who is regularly employed should be given increment and leave benefits as per BCSR 50. However, even this reply is conspicuously silent as to whether any selections were held by the G.P.S.C. or not.