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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. In other words, amongst
the ad hoc appointees in a given subject or
speciality or branch, the candidate who was
appointed at the earliest point of time will be
the last candidate to be replaced."
6.1 The said judgement and order dated 9th March 2001
of the learned Single Judge has not been challenged and
therefore, the aforesaid directions remained operative
and binding.
6.2 In the present group of matters, namely, Special
Civil Application No. 2395 of 2001 and other petitions
which were filed in 2001, an order was made on 4th May
2001 by Hon'ble Mr. Justice M.S.Shah, taking note of the
earlier order of the Division Bench, dated 29-9-1999 in
Letters Patent Appeal No.1057 of 1999 and cognate
appeals, by which the ad hoc lecturers were allowed to
file representation to the Government while permitting
them to withdraw their petitions, gave a direction that
the State Government should decide the representations of
ad hoc lecturers or their association as early as
possible, in any event by 10-6-2001. The above
directions will have relevance on the question of
appreciating the government's appointing a High Power
Committee for considering the question and taking a
decision different from the one which was reflected in
the earlier affidavit of the government when it was
decided to undertake the process of regularising the ad
hoc lecturers and for that purpose, to refer the matter
to the GPSC. However, before that could be done, the
decision of the High Power Committee was taken by which
the direct selectees were to be given appointments,
replacing the ad hoc lecturers.
7. All the learned Senior Counsel appearing in these
Letters Patent Appeals have argued their respective
appeals and adopted each others arguments. The learned
counsel appearing in Letters Patent Appeal No. 818 of
2002 and 1818 of 2002 and the learned counsel appearing
in Letters Patent Appeal No. 492 of 2002, also adopted
those contentions, pointing out the individual facts of
their case. These contentions of the learned counsel in
all these appeals are as under :
[i] The matter should be viewed in context of higher
education and not ordinary government offices.
Therefore, interest of the student community
should be kept in mind while considering whether
these ad hoc lecturers who have put in several
years of service, should be regularised by
relaxing the rules.
[ii] Both the sides are innocent and it is not as if
the ad hoc lecturers are wanting in
qualifications. In fact, they have acquired
experience which gave them an edge over the fresh
GPSC recruits, and therefore, it would be in the
interest of the student community and education
system to regularise them.
[iii] The GPSC procedure was not started for more than
a decade and these ad hoc appointees were
continued in the public interest. Their
temporary appointments could have been made
without consultation of the GPSC only for a
period of one year, and therefore, their
continuance beyond one year of their initial
appointment should lead to an inference or
presumption that the requirement to consult the
PSC was deemed to have been relaxed under the
power of relaxation vested in the Government
under Rule 16 of the Gujarat Civil Services
Qualifications & Recruitment (General) Rules,
1967.
[iv] The non-initiation of consultation process for
recruitment for a decade resulted in breakdown of
consultation rule and therefore, it should be
assumed that the Government must be deemed to
have relaxed the recruitment rules and since
their initial appointment was by selection made
by select committee, they should be treated as
having been regularly recruited by the mode of
direct selection by such Committee instead of the
PSC.
[v] Thirty-three of the ad hoc lecturers were not
called by the GPSC on the ground that they were
age barred. They should have been given an
opportunity to compete by relaxing their age.
[vi] The State Government had held out a promise that
ad hoc appointees will be regularised and
therefore, it was estopped from taking a
different stand. There would be legitimate
expectation on the part of the ad hoc employees
that they will be continued and regularised.
Regularisation should be done, because, the
Government has created this situation.
[vii] Decisions of the Apex Court fall in three
categories. The Apex Court has, in some cases,
decided strictly according to the Rules and
quashed the appointments which are against the
rules. In some cases, while holding that the
rules of recruitment should be followed, the Apex
Court has not disturbed the appointments on
facts, and, in the third category, directions to
regularise the ad hoc employees by exercising
power to relax have been given. According to the
learned counsel, instead of relying on a
precedent of a particular case, the general trend
of all the precedents should be kept in mind and
a precedent should be evolved keeping in view the
law laid down by all these decisions.
[viii] The appointments of these ad hoc lecturers were
not illegal, but made by adopting an alternate
method devised by the State Government itself, by
its circular dated 21st December 1999, and
therefore, there was no back-door entry in the
appointments of these ad hoc lecturers. If an
appointment contrary to Rules is continued for
many years, the Court will presume that
relaxation power was exercised.
[ix] Consultation with the GPSC was not mandatory and
therefore, non-consultation will not vitiate the
appointment.
[x] In case of some ad hoc lecturers, they were held
to be ineligible on the basis of higher
qualifications prescribed under the amended
rules. It was argued that, in such cases, the
subsequent amendment in the rules could not have
been applied to such ad hoc lecturers who were
duly qualified when they were initially appointed
as per the then existing recruitment rules.
[xi] General parameters should be kept in mind while
deciding the case and these are; what the justice
require, what the law require, the public
interest involved, the nature of default
committed by the Government, and the innocent
character of the parties.
7.1 In support of their contentions, the learned
Senior Counsel for the appellants have relied upon the
following precedents :
[a] Decision of the Supreme Court in State of Haryana
v. Piara Singh, reported in AIR 1992 SC 2130 was
relied upon for the proposition that the persons
who are ad hoc or temporary employees have a
right to claim regularisation and the authorities
are under an obligation to consider their case
for regularisation in a fair manner keeping in
view the principles enunciated by the Court. It
will be noticed that while making this
observation, the Supreme Court also held that
blanket directions given for regularisation
cannot be sustained.
[b] Decision of the Supreme Court in Jakob M.
Puthuparambil v. Kerala Water Authority,
reported in AIR 1990 SC 2228 was cited to point
out that a direction was given for regularising
the services of the employees who were working on
the establishment for long spells and had the
requisite qualifications for the job. It was
observed that such employees should not be thrown
out but their services should be regularised as
far as possible. It would be noticed that this
decision was rendered in context of Rule 9(a)(i)
of the Kerala State & Subordinate Service Rules,
1958 in which it was provided that, where it is
necessary in the public interest, owing to an
emergency which has arisen to fill immediately a
vacancy in a post borne on the cadre of a
service, class or category and there would be
undue delay in making such appointment in
accordance with these rules and the Special
Rules, the appointing authority may appoint a
person, otherwise than in accordance with the
said Rules temporarily. It was held by the Court
in paragraph 15 of the judgement that the rule
was not intended to fill a large number of posts
in the service but only those which could not be
kept vacant till regular appointments were made
in accordance with the rules. But once the
appointments continued for long, the services had
to be regularised if the incumbent possessed the
requisite qualifications, as was done by sub-rule
2(e) of Rule 9. It was held that if the rule was
so interpreted, it seemed clear that the
employees who had been working on the
establishment since long and who possessed the
requisite qualifications for the job as obtaining
on the date of their employment must be allowed
to continue on their jobs and their services
should be regularised. It was held that if Rule
9(a)(i) was interpreted consistently with the
spirit and philosophy of the Constitution, which
was permissible to do, without doing violation to
the Rule, it followed that the employees who had
served on the establishment for long spells and
had the requisite qualifications for the job
should not be thrown out, but their services
should be regularised as far as possible.
[c] Decision of the Supreme Court in Government of
Orissa v. Hara Prasad Das, reported in AIR 1998
SC 375 was cited for the proposition that, mere
empanelment or inclusion of the name in the
selection list did not give the direct selectee a
right to be appointed, and that if the Government
decided not to make further appointments for a
valid reason, it could not be said that it acted
arbitrarily by not appointing those whose names
were included in the select list. Whether to
fill up a post or not was a policy decision and
unless it is shown to be arbitrary, it would not
be open to the Tribunal to interfere with such
decision of the government and direct to make
appointments. This matter arose from a petition
filed by those who had appeared in the selection
process. The petition was resisted by the
government on the ground that only six posts were
notified and no more posts can be filled up on
the basis of selection list.
[d] Decision of the Supreme Court in H.C.Puttaswamy
v. Hon'ble the Chief Justice of Karnataka High
Court, reported in AIR 1991 SC 295 was cited to
point out that the Supreme Court while holding
that the appointments made by the Chief Justice
of the High Court without consulting the GPSC
were not proper, issued a direction that, on
humanitarian ground, all such appointees should
be treated as regularly appointed with all
benefits of past service.
[e] Decision of the Supreme Court in Karnataka State
Private College Stop-Gap Lecturers' Association
v. State of Karnataka, reported in AIR 1992 SC
677, was cited to point out that, in a case where
teachers were appointed temporarily, by privately
managed colleges receiving grants-in aid, sought
regularisation of their services by invoking
principle of equitable estopple arising from
implied assurance due to their continuance, as
such, for years with a break of a day or two
every three months, the Supreme Court directed
that the services of such temporary teachers who
had worked as such for three years including
breaks shall not be terminated and they shall be
absorbed as and when regular vacancies arise. It
was also directed that if regular selections have
been made, the government shall create additional
posts to accommodate such selected candidates.
In that case, there was no question of
availability of any candidate selected as per the
Recruitment Rules framed under Article 309 of the
Constitution through the PSC.
[f] Decision of the Supreme Court in All Manipur
Regular Posts Vacancies Substitute Teachers'
Association v. State of Manipur, reported in AIR
1991 SC 2088, was cited to point out that, it was
observed by the Supreme Court that, if the direct
recruitment takes place on one hand and
substituted teachers are also directed to be
regularised subsequently, it would create an
enormous problem for the department to
accommodate both the categories of persons.
Taking all these factors into consideration, the
Court made an order, earlier, directing the State
Government to consider the case of regularisation
of the appellants before making direct
recruitment. The Court ordered that substituted
or ad hoc teachers who had put in five years of
service or more on the specified date shall be
regularised without pay by the D.P.C. and such
regularisation would be subject to their
possessing the required qualifications at the
time of their initial appointment. It was also
directed that those who had rendered less than
five years service on the said date, shall be
allowed to appear before the D.P.C. for
selection and those who are selected, shall be
regularised. It was also directed that the
services of those who did not appear before the
D.P.C. or could not be selected by the D.P.C.
could be terminated unless their services were
required for a further period.
[g] Decision of the Supreme Court in State of
Karnataka v. B. Suvarna Malini, reported in AIR
2001 SC 606 was cited to point out that, in a
case where the lecturers appointed by way of
stop-gap arrangement had put in 10 to 20 years of
service, the Court observed that such cases
involve not only a question of law, but also
human problem inasmuch as these part-time
lecturers had served in different colleges for a
long period and treated as regular servants, and
they will not be able to get themselves engaged
anywhere else. Moreover, their experience in
teaching will be a great loss to the student
community if they were removed. Reliance was
placed on paragraph 9 of the judgement in which
it was observed that, though the selection of
such part-time lecturers was not made by the
Public Service Commission, yet there was a
process of selection and it appeared that
unqualified people were not appointed as
part-time lecturers. Part-time lecturers having
been formed a class by themselves and for some
reason or the other, they having been deprived of
the benefits of the earlier directions of the
Court on account of inaction on the part of the
State Government, the matter was re-examined by a
Committee of Experts as to how best their
services could be utilized without diluting the
quality of teaching. Earlier in the judgement,
it was noticed that High Powered Committee
considered the problems of the part-time
lecturers in great detail and, bearing in mind
the relevant decision on the question, made the
recommendation for their absorptions. It was
recommended that special recruitment rules will
have to be framed by the State Government in
exercise of powers conferred on it by the
Karnataka State Civil Services Act, 1978 for the
purpose of absorption. Section 8 of that Act
gave rule-making powers to make rules to carry
out the purposes of the Act. The absorption
rules were framed in exercise of these
Legislative powers. The Court held that, these
absorption rules were made to solve human
problems and that the High Court committed an
error in striking them down, because, they were
validly made after putting them to objection to
the general public and consulting the PSC before
being put before the State Legislature to have
its concurrence. It was held that it is not
that, in every case, the Court would be justified
in striking down the process of absorption or
requisition, more so when such absorption has
been made as a legislative measure and that also
as a one time measure. In the present case, no
such attempt is made for regularising the ad hoc
employees by resorting to such statutory powers.
[h] Decision of the Supreme Court in Narendar Chadha
v. Union of India, reported in (1986) 2 SCC 157
was cited to point out that, the Supreme Court
held that, where persons have been allowed to
function in higher posts for 15 to 20 years with
due deliberation, it would be certainly unjust to
hold that they have no sort of claim to such
posts and could be reverted unceremoniously or
treated as persons not belonging to the Service
at all, particularly where the Government is
endowed with the power to relax the rules to
avoid unjust results.
[i] Decision of the Supreme Court in Shainda Hasan v.
State of Uttar Pradesh, reported in 1993 SCC 48
was cited to pointed out that, while holding that
the High Court had rightly held that the
relaxation granted by the selection committee to
be arbitrary, and that in the absence of
statutory rules providing power of relaxation,
the advertisement must indicate that the
selection committee / appointing authority has
the power to relax the qualifications, the
Supreme Court observed that, asking the appellant
to leave the job after 16 years would be doing
injustice to her. In paragraph 8 of the
judgement, it is stated that the case was taken
up in chambers on April 20, 1990 when the learned
counsel for the State after obtaining
instructions from the University, agreed with the
Court that asking the appellant to leave the job
after 16 years would be doing injustice to her.
Accordingly, the directions were issued to grant
necessary approval to the appointment of the
appellant as the Principal w.e.f. the date she
was holding the said post.
[j] Decision of the Supreme Court in Dr. A.K. Jain
v. Union of India, reported in 1987 (Supp) SCC
497, was cited to point out that, in a case where
the petitioners who were still ad hoc doctors on
the zonal railways, were those doctors who either
failed to appear in the combined medical services
examination held by the UPSC or after appearing
had failed to get regularised in accordance with
the prescribed rules and regulations for regular
appointments, and their services had to be
terminated and as such, there had been neither
any arbitrary nor illegal action on the part of
the respondents, nor any violation of the
fundamental rights guaranteed by Articles 14 and
16 of the Constitution, the Supreme Court gave a
direction after hearing the counsel for both the
sides, inter alia, to the effect that the
services of doctors appointed on ad hoc basis
upto 1st October 1984 shall be regularised in
consultation with the UPSC on the evaluation of
their work and conduct on the basis of their
confidential reports in respect of the period
subsequent to October 1, 1982, which evaluation
was to be done by the UPSC. The Court dismissed
the petitions of such medical officers who were
appointed subsequent to October 1, 1984 with
certain directions.
[k] Decision of the Supreme Court in G.S.Lamba v.
Union of India, reported in (1985) 2 SCC 604 was
cited to point out that, in paragraph 26 of the
judgement, the Supreme court held that, once the
power to relax is given, mandatory rule exists
and an action in derogation of the rule has been
repeatedly taken year after the year, it would be
a permissible inference that the action was taken
in relaxation of the rule for which the power
exists in rule 29(a) of the Indian Foreign
Service Branch "B" (Recruitment, Cadre, Seniority
& Promotion) Rules, 1964. It was held that, to
hold otherwise would be to come to a rather
disconcerting conclusion that a body like the
Government of India acted deliberately in
contravention of the mandatory rule from year to
year. It would, as far as possible, be proper to
avoid such an inference unless it is inescapable.
Rule 29(a) conferred power to relax any of the
provisions of the Rules of 1964 and in context of
the quota rule, the Court held, in paragraph 27
of the judgement, that, assuming that there was a
failure to consult the the Union Public Service
Commission before exercising the powers to relax
the mandatory quota rule and further assuming
that the posts in the integrated grade II and III
were within the purview of the Union Public
Service Commission and accepting for the
time-being that the Commission was not consulted
before the power to relax the rule was exercised,
yet the action taken would not be vitiated, nor
would it furnish any help to Union of India which
itself cannot take an advantage of its failure to
consult the Commission.
[l] Decision of the Supreme Court in Baij Nath Sharma
v. Hon'ble Rajasthan High Court, reported in
(1998) 7 SCC 44 was cited to point out that it
was held that the second petition filed after
withdrawing the petition was not barred by
principle of res judicata. It will be noticed
from paragraph 5 of the judgement that when the
earlier petition was withdrawn, liberty was
granted to the petitioner to file another
petition "if occasion arises".
[m] Decision of the Supreme Court in B.C.Chaturvedi
v. Union of India reported in (1995) 6 SCC 749
was cited to point out that, in the concurrent
judgement of Justice Hansaria in paragraph 20, it
was observed that, it would be wrong to think
that other Courts are not to do complete justice
between the parties. It was observed that it may
be remembered that the framers of the
Constitution permitted the High Courts to even
strike down a Parliamentary enactment. The High
Court would be within its jurisdiction to modify
punishment / penalty by moulding the relief which
power it undoubtedly had.
[n] Decision of the Supreme Court in Dr. M.C.
Bindal v. R.C.Singh, reported in AIR 1989 SC 134
was cited to point out that it was observed in
paragraph 12 of the judgement that, it was well
settled legal position that the duty to consult
the Commission in the matter of appointment to
civil posts by the government is not mandatory,
but directory, and as such, the absence of
consultation with the State Public Service
Commission does not render any appointment made
by the government in civil posts invalid or
illegal. The Supreme Court also, however, held
in paragraph 12 of the judgement that, it cannot
also be contended that since the duty to consult
the Public Service Commission in the matter of
making appointments to civil services of the
State was directory and not mandatory, the
appointment by the government cannot be question
or interfered with by the Court. In that case,
candidature for the post in question had already
been withdrawn by the Public Service Commission
and the Court held that, therefore, the question
of validity or invalidity of the appointment to
the said post was no longer open to be considered
by the Court.
[o] Decision of the Supreme Court in Rabinarayan
Mohapatra v. State of Orissa, reported in (1991)
2 SCC 599 was cited to point out that, where the
school teachers were working for almost four
years, the respondents were directed to treat the
appellant as regularly appointed teachers. It is
pointed out that the Court quoted with approval
the observations made in Rattan Lal v. State of
Haryana reported in AIR 1987 SC 478 in which it
was observed that the Government appeared to be
exploiting the situation where the teachers who
constituted bulk of the educated unemployed were
compelled to accept the job on an ad hoc basis
with miserable conditions of service. It was
observed that the policy of ad hocism followed by
the Government for a long period had led to the
breach of Article 14 and Article 16 of the
Constitution, and that the State Government was
expected to function as a model employer. The
Court deprecated the policy of the State
Government under which ad hoc teachers were
denied the salary and allowances for the period
of the summer vacation by resorting to the
fictional breaks.
[p] Decision of the Supreme Court in I.J.Divakar v.
Government of Andhra Pradesh, reported in (1982)
3 SCC 341 was cited for the proposition that,
inviting the applications for a post does not by
itself create any right to the post in the
candidate who in response to the advertisement
makes an application. His application only makes
him eligible for being considered for the post.
It was held that the temporarily appointments
which were made in that case were within the
power of the Government under Rule 10(a)(i)(1) of
the A.P. State and Subordinate Services Rules,
and that, in the circumstances of the case, it
had become compelling necessity to regularise
services of such temporary servants for peace and
harmony in service. It was held that the action
of the government was justified and was in
consonance with the Rules. However, on equitable
considerations and in order to do justice between
the parties and not to leave the appellants,
fresh young engineering graduates, in lurch, the
Court directed that the Commission shall proceed
to finalise the list of selection on the basis of
the viva voce tests conducted and marks assigned
and forward the same to the Government within two
months.
[q] Decision of the Supreme Court in Gopal Krushna
Rath v. M.A.A. Baig, reported in AIR 1999 SC
2093 was cited for the proposition that when the
selection process has actually commenced and the
last date for inviting application is over, any
subsequent change in the requirement regarding
qualifications by the University Grant Commission
will not affect the process of selection which
has already commenced, otherwise it would involve
issuing a fresh advertisement with the new
qualifications.
[r] Decision of the Supreme Court in Gujarat State
Deputy Executive Engineers' Association v. The
State of Gujarat, reported in J.T. 1994 (3) SC
559 was cited to point out that, where the
direction was given to operate and implement the
revised select list by the High Court, the
Supreme Court in paragraph 5 of its judgement
held that the High Court could not have given
direction to appoint direct recruits from the
waiting list prepared in 1980 in the vacancy
which according to the High Court should have
been available as that would amount to
interfering with discretion of Government which
as a matter of policy may decide to fill lesser
vacancies.
[s] Decision of this Court in D.D.Upadhyaya v. State
of Gujarat reported in 39(3) GLR 2264 was cited
to point out that the government had taken up a
stand in that case that it had a power to
regularise the service by resorting to Rule 16 of
the General Rules of 1967. In that case, it was
urged on behalf of the state Government that the
Court may take humanitarian and sympathetic
approach and keeping in view the long services of
the respondent, it may not interfere in the
matter. The learned Single Judge, however,
negatived this contention by holding that the
requirement of "interest of public services" was
altogether missing in the case and, exfacie, it
was a simple and plain resort to exercise of
power under Rule 16 of the Rules of 1967 for the
purpose other than the interest of public
services.
[t] Decision of the Supreme Court in N.S.K. Nayar v.
Union of India, reported in 1991 (6) SLR 155 was
cited to point out that it was held, in context
of Rule 27(b) of the Telegraph Engineering
Services (Class I) Rules, 1965, that the object
of the Rule was to provide a source of
appointment to meet an administrative exigency of
short tenure and it could never be the intention
of the framers of the rule to permit the
appointments thereunder to go on for 10 to 15
years. It was held that the appointments for
such a long period cannot be considered to be
purely temporary or officiating. In paragraph 7
of the judgement, it was held that, while doing
justice to the petitioners, the Court did not
wish to cause any prejudice to the direct
recruits. It was held that the promotee officers
who had worked in STS for a continuous period of
five years and were holding the posts, shall be
deemed to be regular members of Group "A" service
in STS.
[u] Decision in Shanti Devi v. The State of Haryana,
reported in 1988 (1) SLR 483 (P&H), was cited to
point out that, in a case where the ad hoc
appointees held the posts for sufficiently long
period, it was held that they formed a separate
class, and that the power of relaxing the rule
were validly exercised in their favour.
[v] Decision of the Supreme Court in Surya Narain
Yadav v. Bihar State Electricity Board, reported
in 1985 (2) SLR 479 was cited to point out that,
where trainee engineers of State Electricity
Board were initially appointed on probation but
temptation of being absorbed permanently was
given from time to time, and they continued to
work since long, the Supreme Court in paragraph 8
of the judgement held that the Board was bound to
regularise the appointments of the appellants who
had been taken as trainee engineers initially and
had continued to be in the employment of the
Board.
[w] Decision in J.J.Muralidhara Rao v. The State of
Andhra Pradesh, reported 1971(1) SLR 523 (AP) was
cited to point out that it was held that the new
rules under which the petitioner who had been
serving for nearly ten years did not possess
qualification, could not have been applied to him
as the government was really estopped to say that
his services cannot be regularised.
[x] Decision of the Supreme Court in Dr. Ami Lal
Bhat v. State of Rajasthan, reported in (1997) 6
SCC 614 was cited to point out that it was held
in paragraph 11 that the power of relaxation was
required to be exercised in public interest in a
given case. The Court upheld the validity of the
rules concerned relating to the cut off date
being fixed with reference to 1st of January of
the year following the rules.
[y] Decision of the Supreme Court in Dr. (Mrs.)
Meera Massey v. Dr. S.R.Mehrotra, reported in
(1998) 2 SLJ 178 was cited to point out that,
while deprecating the situation brought about by
the University by deviation from the normal mode
of appointment, the Court upheld the appellant's
appointment as lecturer.
[z] Decision in V.M.Sikka v. Union of India reported
in (1986) 1 SLJ 330 was cited for pointing out
that, in paragraph 5 of the judgement, it was
held that the vacancy which occurred prior to the
amended rules would be governed by the old rules
and not by the amended rules.
[z-1] Decision of the Supreme Court in Chandraprakash
Madhavrao Dadwa v. Union of India, reported in
(1998) 8 SCC 154 was cited for the proposition
that additional qualifications and job
requirements could be applied prospectively only.
8. The learned Advocate General contended that there
was never any assurance given by the appointing authority
that the ad hoc lecturers will be regularised or made
permanent. They were appointed only by way of a stop-gap
local arrangement till the availability of direct
recruits through the PSC. There can be no estopple
against statutory rules on the basis of negotiations
reflected in the minutes on which reliance is sought to
be placed. It was stated that no order was made on the
basis of such minutes under Article 166 of the
Constitution and therefore, no decision which could be
implemented, was taken. It was then contended that the
procedure of regular recruitment through the PSC was
never followed in respect of these ad hoc lecturers and
there was no decision made to relax the recruitment rules
or the general rules while appointing these ad hoc
lecturers or while continuing them thereafter on ad hoc
basis. It was submitted that it is only because of the
interim orders which were obtained by the ad hoc
lecturers for being continued until the availability of
the GPSC candidates that they came to be continued as ad
hoc employees for a long period, which cannot create any
equity in their favour or against the Government. It was
also contended that the recruitment rules for the post in
question were being reviewed and therefore, the process
of recruitment could not start. In this regard, he
referred to the correspondence between the GPSC and the
State Government, copies of which were placed on record.
It was then contended that the requirements of
consultation was not dispensed with and the Government
could have made ad hoc appointments only for one year,
and therefore, according to him, there was a lapse on the
part of the State Government in not consulting the GPSC
before continuing such ad hoc appointees for more than
one year, as was required to be done under the rules and
regulations. He, however, argued that this did not give
any right to such ad hoc lecturers to continue in the
post, notwithstanding the availability of the GPSC
candidates. It was contended that the Government cannot
legitimately continue these ad hoc lecturers without
consultative process with the PSC and contrary to the
rules, and they have to be replaced by the regular GPSC
selectees. It was also argued that there was neither any
regularisation, nor any deemed regularisation or deemed
relaxation took place, and that, no mandamus could be
issued for regularising these ad hoc lecturers in
contravention of the recruitment rules. Such ad hoc
lecturers could be continued only in that ad hoc capacity
till the availability of the regular recruits or till
they get regularly appointed. The Government can, at
best, consider only relaxing of age limit in consonance
with the recruitment rules and the general rules for
allowing them chances to compete as may be permissible as
per the rules. It was also submitted that many of the
appellants had withdrawn their earlier petitions and
filed fresh petitions on the same cause of action, though
no liberty was reserved when the Letters Patent Appeals
were disposed of, on withdrawal of those petitions.
Explaining the different stands taken in the affidavits
filed on behalf of the State Government, the learned
Advocate General contended that, though initially on the
representations of the ad hoc lecturers, meetings were
held and it was thought of trying to continue them by
making a reference to the GPSC, that decision came to be
changed in view of the directions given in paragraph
15(ii) by the Court on 9th March 2001 in Special Civil
Application No. 2843 of 1991 and cognate matters, and
also on a comprehensive consideration of the
representations of the ad hoc employees as well as the
rules and regulations applicable to the post and the
Constitutional provisions.
8.1 The learned counsel who appeared for the direct
recruits, who are respondents in Letters Patent Appeal
No. 485 of 2002, adopted the contentions raised by the
learned Advocate General, pointing out that the
appointment orders of all the direct recruits have
already been issued.
8.2 The learned Advocate General, in support of his
arguments, referred to the following decisions :
[a] Decision of the Supreme Court in Commissioner,
Assam State Housing v. Purna Chandra Bora,
reported in (1998) 6 SCC 619 was cited for the
proposition that the out-going temporary
appointee cannot challenge regular appointments
to benefit himself. In that case, the first
respondent was appointed temporarily and until
appointment of Accounts Assistant was made on a
regular basis, and he was discharged from service
on the day on which five persons were appointed
after selection.
[b] Decision of the Supreme Court in State of M.P.
v. Dharam Bir, reported in (1998) 6 SCC 165 was
cited for the proposition that when the post was
not filled up on a regular basis in accordance
with the Rules, it could be treated by the State
to be vacant. The Court held that whether a
person holds a particular post in a substantive
capacity or is only temporary or ad hoc is a
question which directly relates to his status.
It all depends upon the terms of appointemnt. It
is not open to any government employee to claim
automatic alteration of status unless that result
is specifically envisaged by some provision in
the statutory rules. Unless, therefore, there is
a provision in the statutory rules for alteration
of status in a particular situation, it is not
open to any government employee to claim a status
different than that which was conferred upon him
at the initial or any subsequent stage of
service.
[c] Decision of the Supreme Court in Keshav Narayan
Gupta v. Jila Parishad, Shivpuri (MP), reported
in (1998) 9 SCC 78 was cited to point out that,
in a case where the approval of the Collector was
not obtained in terms of resolution for regular
appointment, and where no applications were
invited for the post and initially only temperory
appointments for limited period were sanctioned
by the Collector, it was held that it would be
difficult to consider such appointments as
regular.
[d] Decision of the Supreme Court in State of Orissa
v. Dr. Pyari Mohan Misra, reported in AIR 1995
SC 974 was cited to point out that, in paragraph
4 of the judgement, it was held that mere
prolonged continuous ad hoc service does not
ripen into a regular service to claim permanent
or substantive status. Such appointee shall
remain on ad hoc basis until further orders.
[e] Decision of the Supreme Court in Dr.Surinder
Singh Jamwal v. State of Jammu & Kashmir,
reported in AIR 1996 SC 2775 was cited to point
out that, it was held by the Supreme Court
following its earlier decision in J. & K.
Public Service Commission v. Dr. Narinder
Mohan, reported in (1994) 2 SCC 630, that under
the Rules, the regular recruitment to the posts
shall be made by the Public Service Commission
and consequently, the ad hoc appointments would
be only temporary appointments dehors the Rules,
pending regular recruitment without conferring
any right to regularisation of service.
[f] Decision of the Supreme Court in E. Ramakrishnan
v. State of Kerala, reported in (1996) 10 SCC
565 was cited to point out that the Court,
rejecting the contention canvassed on the basis
of Piara Singh's case that in view of the fact
that the petitioners had been continued for more
than 14 years, they were required to be
regularised on the ground that the posts were to
be filled up through selection by the PSC
Recruitment Norms, and therefore, the candidates
who were found eligible and selected and
recommended for appointment by the PSC, were
required to be appointed. In paragraph 3 of the
judgement, it was held that the Government cannot
take any decision contrary to the Constitution to
regularise the services of the candidates dehors
the recruitemnt rules and the statutory process
for selection through the PSC, in view of the
provisions of Article 320 of the Constitution.
[g] Decision in case of J & K Public Service
Commission v. Dr. Narinder Mohan, reported in
AIR 1994 SC 1808, was cited for the proposition
that the executive power under Article 162 of the
Constitution could be exercised only to fill in
the gaps but such instructions cannot and should
not supplant the law, but would only supplement
the law. It was held that, having made the rules
governing recruitment, the executive cannot fall
back upon its general power under Article 162 to
regularise the ad hoc appointments under the
Rules. It was held that the Rule 9(3) of the J &
K Medical Education (Gazeted) Services
Recruitemtn Rules (1979), empowered only to relax
the qualification of age in particular exigencies
which cannot be called in aid to relax the rules
of recruitment. It was held that the Government
had no power to make regular appointment under
the Rules without selection by the Public service
commission under Article 133(1) of the J. & K.
Constitution.
[h] Decision of the Supreme Court in Dr.M.A.Haque v.
Union of India, reproted in (1993) 2 SCC 213 was
cited to point out that, in paragraph 9 of the
judgement, the Supreme Court held that, we cannot
lose sight of the fact that the recruitment rules
made under Article 309 of the Constitution have
to be followed strictly and not in breach. If a
disregard of the rules and the by-passing of the
Public Service Commissions are permitted, it will
open a back-door for illegal recruitment without
limit. The Supreme Court noted that, of late, it
had witnessed a constant violation of the
recruitment rules and a scant respect for the
constitutional provisions requiring recruitment
to the services through the Public Service
Commissions. It was observed;
"It appears that since this Court has in
some case permitted regularisation of the
irregularly recruited employees, some
governments and authorities have been
increasingly resorting to irregular
recruitments. The result has been that
the recruitment rules and the Public
Service Commissions have been kept in
cold storage and candidates dictated by
various considerations are being
recruited as a matter of course."
[i] Decision of the Supreme Court in Dr.(Mrs.) Meera
Massey v. Dr. S.R.Mehrotra, reported in AIR
1998 SC 1153 was cited for the proposition that
selection of teacher has not to be on minimum
eligibility but best available from a larger
sphere. The Court observed that the selection of
teacher is not to be done from the sphere of ad
hoc or stop-gap appointees. Such course will
damage the standard of the University.
[j] Decision of the Supreme Court in Dr. Arundhati
Ajit Pargaonkar v. State of Maharashtra reported
in AIR 1995 SC 962 was cited to point out that,
in paragraph 7 of the judgement, the Supreme
Court observed that the claim of the appellant,
that she having worked as lecturer without break
for nine years on the date the advertisement was
issued, she should be deemed to have been
regularised, did not apepar to be well founded.
It was held that eligibility and continuous
working for howsoever long period should not be
permitted to over-reach the law, and that
requirement of rules of selection through the
Public Service Commission cannot be substituted
by humane consideration. It was held that law
must take its course and consequently the
appellant was not entitled to claim that she
should have been deemed to have been regularised
as she had been working without break for nine
years.
[k] Decision of the Supreme Court in Santosh Kumar
Verma v. State of Bihar, reported in AIR 1997 SC
975 was cited for the proposition that the
mandamus cannot be issued to regularise the
services made in contravention of law. In that
case, the appointments of the appellants were for
a temperory tenure and they had sought for
regularisation, which was negatived by the Public
Service Commission. The posts were within the
purview of the Public Service Commission and
therefore, the Government had sought the
concurrence of the Public Service Commission and
the Public Service Commission had not concurred.
It was held that the Commission rightly did not
concur with the request made by the Governemnt
and therefore, any regularisation in violation of
the recruitment to be made by the Public Service
Commission was in contravention of the law.
[l] Decision of the Supreme Court in The
Commissioner, Corporation of Madras v. Madras
Corporation Teachers' Mandram, reported in AIR
1997 SC 2131 was cited for the proposition that
the creation of post or prescribing qualification
for post was a matter of executive policy of the
Government, and that the Administrative Tribunal
cannot give directions for creation of post or to
prescribe minimum qualifications for the post.
[m] Decision of a Division Bench of this Court in
Bhartiben Nanubhai Balsara v. State of Gujarat,
reported in XXX(1) GLR 659 was cited for the
proposition that, any appointment to any post
dehors the Rules or without being selected as per
statutory Rules should be held as irregular and
invalid, and that the irregularly appointed
employees cannot assert right to hold the post or
continue in service.
[n] Decision of the learned Single Judge of this
Court in case of Maisuria Mahendra Bhagwandas v.
State of Gujarat, reported in XXXI (2) GLR 719
was cited for the proposition that when the
appointments were made purely on temporary and ad
hoc basis, with a specific condition that such
appointees will have to vacate the post, on
availability of the GPSC selectees, it was not
open for such appointees to make any grievance
against their termination on the availability of
the GPSC selectees.
[o] Decision of this Court in Mukesh B. Desai v.
State of Gujarat, reported in 1997 (3) GCD 645
was cited to point out that, where the
appointment order clearly stipulated that the ad
hoc appointment of the appellant was till a
candidate was regularly selected by the GPSC or
for a period of 11 months, whichever was earlier,
it was held that, assuming that he was allowed to
continue even after the period of 11 months had
expired, that would still not give any right to
such an ad hoc appointee to ask for a writ of
mandamus, which would, in effect, allow him to
continue in service, even though his appointment
would be contrary to his own appointment order.
[p] Decision of the Supreme Court in State of Haryana
v. Piara Singh, reported in AIR 1992 SC 2130 was
cited to point out the problems that according to
the Apex Court would arise if blanket directions
are issued for regularising the ad hoc or
temporary employees. The Supreme Court held
that, in the event of such directions being
given, there would be no post left for regularly
selected persons even if they are selected.
Moreover, two persons cannot hold the same post
on a regular or permanent basis. If such ad hoc
employee is to be regularised, it would not only
mean foreclosing appointment of a regular
qualified person, it would also mean appointment
of an unqualified person. It was also held that
issuing general declaration of indulgence was not
part of Court's jurisdiction. It is further held
it is for the respective Governments to consider
the feasibility of giving them appropriate
relief, particularly in cases where persons have
been continuing over a long number of years, and
were eligible and qualified on the date of their
ad hoc appointment and further whose record of
service was satisfactory. The Supreme Court also
held that the appointment of the regularly
selected candidate cannot be withheld or kept in
abeyance for the sake of such an ad hoc /
temporary employee. The Supreme Court also
observed that the persons continuing in service
over a number of years have a right to claim
regularisation and the authorities were under an
obligation to consider their case for
regularisation in a fair manner, and that the
proper course would be that each State prepares a
scheme, if one is not already in vogue, for
regularisation of such employees consistent with
its reservation policy, and if a scheme is
already framed, the same may be made consistent
with the observations made in the judgement so as
to reduce avoidable litigation. It was observed
that each government or authority has to devise
its own criteria or principles for regularisation
having regard to all the relevant circumstances,
keeping in view the observations made in the
judgement.
[q] Decision of the Supreme Court in P. Ravindran v.
Union Territory of Pondicherry, reported in
(1997) 1 SCC 350 was cited for the proposition
that the Public Service Commission having been
entrusted with the Constitutional duty to select
suitable candidates by inviting applications from
the open market, every candidate has a
fundamental right to seek consideration and for
selection through open competition. It was held
that the process of recruitment through the
Commission as envisaged under the Cosntitution
cannot be bypassed by issuing directions for
regularisation of services of the ad hoc persons
who had come to services through back-door entry.
[r] Decision of the Supreme Court in Keshav Chandra
Joshi v. Union of India, reported in 1992 Supp.
(1) SCC 272 was cited to point out that, in
paragraph 24 of the judgement, it was held that
ad hoc or fortuitous appointments on a temporary
or a stop-gap basis cannot be taken into account
for the purpose of seniority, even if the
appointee was subsequently qualified to hold the
post on a regular basis. It was observed that,
in order do justice to the promotees, it would
not be proper to do injustice to the direct
recruits. The ratio of direct recruits case
{(1990) 2 SCC 715] was culled out in paragraph 25
of the judgement, as per which, where the initial
appointment was only ad hoc and not according to
rules and made as stop-gap arrangement, the
officiation in such posts cannot be taken into
account for considering the seniority.
[s] Decision in State of West Bengal v. Aghore Nath
Dey, reported in J.T. 1993 (2) SC 598 was cited
to point out that, in paragraph 20 of the
judgement, it was held that, Narendra Chadha's
case cannot be construed to apply to cases where
the initial appointment was not according to
rules.
[t] Decision of the Supreme Court in Dinkar Anna
Patil v. State of Maharashtra, reported in AIR
1999 SC 152 was cited to point out that, in
paragraph 17 of the judgement, in context of the
Rules framed by the Government of Maharashtra
under Article 309 of the Constitution, it was
held by the Supreme Court that, it would give
unbridled power to the government to dispense
with the consultation with the Maharashtra Public
Service Commission, if the word "may" used in
Rule 4 was held to be directory and it would
render the very object of consultation with the
MPSC, whereever necessary, nugatory. The Supreme
Court held that the word "may" must mean "shall"
and therefore, consultation was mandatory. The
Supreme Court followed the decision in
Keshavchandra Joshi v. Union of India, reported
in 1992 Supp. (1) SCC 272, in which, dealing
with the interpretation of Rule 27 of U.P.
Forest Service Rules, 1952, the Court construed
the word "may" used in Rule 27. It was held that
the word "may" has to be read as "shall" and
therefore, consultation was mandatory.
[u] Decision of the Supreme Court in M/s Upadhyaya &
Co. v. State of U.P., reported in AIR 1999 SC
509 was cited for the proposition that when the
party had withdrawn the Special Leave Petition
filed to challenge the order of the High Court in
writ petition without seeking permission to file
fresh SLP, he cannot file another SLP challenging
the same order again.
[v] Decision of the Supreme Court in Executive
Officer, Arthanareswarar Temple v. R.Sathya
Moorthy, reported in AIR 1999 SC 958 was cited to
point out that, in paragraph 14 of the judgement,
it was held that, if an appeal was preferred by
an unsuccessful plaintiff against the judgement
of the trial Court dismissing the suit and if the
plaintiff appellant wanted to withdraw not only
the appeal but also the suit unconditionally,
then such a permission so far as the withdrawal
of the suit concerned can be granted if there was
no question of any adjudication on merits in
favour of the defendants by the trial being
nullified by such withdrawal.
[w] Decision of the Supreme Court in State of
Maharashtra v. Sanjay Thakre, reported in 1995
Supp. (2) 407 was cited for the proposition that
appointment of promotees in excess of quota was
violative of Rules and could not count for the
purpose of seniority.
[x] Decision in Dinkar Patil v. State of
Maharashtra, reported in J.T. 1998 (7) SC 513
was cited for the proposition that placement of
direct recruits vis-a-vis the promotees will have
to be determined on the basis of date of
regularisation and excluding the period of
fortuitous appointments.
[y] Decision of the Supreme Court in The Direct
Recruit Class II Engineering Officers'
Association v. State of Maharashtra, reported in
AIR 1990 SC 1607 was cited for the proposition
that, where the initial appointment is only ad
hoc and not according to the rules and made as a
stop-gap arragement, the officiation in such post
cannot be taken into account for considering the
seniority. (See paragraph 44 of the judgement).
[z] Decision of the Supreme Court in U.P.
Secretariat U.D.A. Association v. State of
U.P., reported in (1999) 1 SCC 278 was cited for
the proposition that, merely because temporary
appointment or promotion is made, seniority
cannot be counted from the date of officiation
except when the appointemnt was made in
accordance with rules.
[aa] Decision of the Supreme Court in Maharashtra
Vikrikar Karamchari Sangathan v. State of
Maharashtra, reported in (2000)2 SCC 552, was
cited to point out that, where it was contended
on behalf of the appellants that some of them had
put in more than 17 years of service, when a few
of direct recruits were either schooling and / or
not born in the cadre, and that if the appellants
were pushed down, it would cause great hardship
to them, the Supreme Court, in paragraph 26 of
the judgement, negatived that contention on the
ground that, if there is a patent violation of
the quota rule, the result must follow and the
appellants who remained in the office for all
these years cannot take the advantage of such
situation.
[bb] Decision of the Supreme Court in State of Kerala
v. A.Laxmikutty reported in AIR 1987 SC 331 was
cited for the proposition that the High Court
could not issue a writ of mandamus directing the
State Government to appoint person recommended by
the High Court as District Judge.
[cc] Decision of the Supreme Court in Sarguja
Transport Service v. State Transport Appellate
Tribunal, reported in AIR 1987 SC 88 was cited
for the proposition that a petitioner after
withdrawing a writ petition filed by him in the
High Court under Article 226 without the
permission to institute a fresh writ petition
cannot file a fresh writ petition in respect of
the same cause of action in the High Court. (See
para 9 of the judgement).
[dd] Decision of the Supreme Court in State of Bihar
v. Kripalu Shanker, reported in AIR 1987 SC 1554
was cited for the proposition to the effect that,
an opinion becomes a decision of the Government
only when it must be communicated to the person
concerned, and that notings in a "notes file",
not only of officers but even that of a minister
will not constitute an order to affect others
unless it is done in accordance with Articles
166(1) & (2) and communicated to the person
concerned. (See para 18 of the judgement).
9. The entire controversy centres around the issue
whether the ad hoc lecturers who were locally appointed
until regular Public Service Commission candidates were
available and were continued as ad hoc without
consultation with the Public Service Commission and
dehors the recruitment rules, should be deemed to have
been or should be regularized in the post by virtue of
their having been continued for long years,
notwithstanding the availability of the Public Service
Commission selectees.
10. Public Service Commissions are constitutional
entities created by Article 315(1) of the Constitution of
India. The provisions of Chapter II of Part XIV of the
Constitution dealing with Public Service Commissions
indicate the importance that the Constitution seeks to
attach to the independence and the utility of the Public
Service Commissions in the realm of the services under
the Union and the States.
11. The principal function of the Public Service
Commissions is to conduct examinations for appointment to
Union and State Services as provided by Article 320(1) of
the Constitution. Article 320(3), inter alia, provides
that the Public Service Commissions shall be consulted,
(a) on all matters relating to methods of recruitment to
civil services and for civil posts, and (b) on the
principles to be followed in making appointments to civil
services and posts and in making promotions and transfers
from one service to another and on the suitability of
candidates for such appointments, promotions or
transfers. Proviso to clause (3) of Article 320
empowers, inter alia, the Governor as respects services
and posts in connections with the affairs of the State,
to make regulations specifying the matters in which
either generally, or in any particular class of case or
in any particular circumstances, it shall not be
necessary for a Public Service Commission to be
consulted. Under clause (5) of Article 320, such
regulations made under the proviso to clause (3) are
required to be laid before the Legislature of the State.
It is thus left to the State concerned to specify, by
such regulations, the matters in which it shall not be
necessary to consult the Public Service Commission.
11.1 The Government of Gujarat, in exercise of the
powers conferred by the proviso to clause (3) of Article
320 of the Constitution, made the Gujarat Public Service
Commission (Exemption from Consultation) Regulations,
1960. As per Regulation 3 thereof, it shall not be
necessary to consult the Gujarat Public Service
Commission in any of the matters specified in paragraphs
(a) and (b) of clause (3) of Article 320 of the
Constitution in respect of the posts which are specified
in the Schedule to these Regulations and temporary
appointments to all other posts and services for a period
not exceeding or not likely to exceed one year. However,
if such temporary appointment involves any relaxation of
the recruitment rules which are finalised in consultation
with the Commission, it is necessary to consult the
Public Service Commission, as mentioned below the said
Regulation 3. The service and its posts in the cadre of
Lecturer, Gujarat Education Service, Class II (Collegiate
Branch), admittedly are not exempted from the purview of
the Public Service Commission under the said regulations.
11.2 The Governor of Gujarat, in exercise of the
powers conferred by the proviso to Article 309 of the
Constitution, made the Gujarat Civil Services
Qualifications & Recruitment (General) Rules, 1967, which
apply to services and posts the recruitment to which is
regulated in accordance with the Rules made under Article
309 of the Constitution as laid down by sub-rule (3) of
Rule 1 of the Rules. The posts of Lecturers in the
Government colleges in the State are admittedly Class II
civil posts.
11.3 An appointment to any service or post included in
the State service shall be made by the State Government
or by any authority duly empowered in that behalf by the
State Government either on the result of a competitive
examination held for the purpose, or by direct selection
or by promotion or by transfer from amongst the persons
satisfying the conditions prescribed in these General
Rules and other Rules, if any, relating to the
recruitment to such service or post, as laid down under
Rule 9(1) of the General Rules. Under sub-rule (2) of
Rule 9, every such appointment shall be made after
consultation with the Gujarat Public Service Commission,
unless under a regulation made under the proviso to
clause (3) of Article 320 of the Constitution, such
consultation is not necessary.
11.4 In exercise of the powers conferred by the
proviso to Article 309 of the Constitution, the Governor
of Gujarat made rules for regulation of recruitment to
the post of the Lecturers in the Government Arts, Science
and Commerce Colleges in the Gujarat Educational
Services, Class II (Collegiate Branch) called the
"Lecturers in the Government Arts, Science and Commerce
Colleges Recruitment Rules, 1980". By Rule 2, it is
provided that the appointment to the post of Lecturers in
such colleges in Gujarat Educational Services, Class II
(Collegiate Branch) shall be made by direct selection.
Rule 3 of the Recruitment Rules laid down the eligibility
for appointment by direct selection to the said posts.
If the Gujarat Public Service Commission was of the view
that the research work of a candidate as evident either
from his thesis or from his published work was of a very
high standard, it may relax the qualifications prescribed
in clause (b) of rule 3 so far as it related to class at
the Master's Degree, under the first proviso to rule 3.
If a candidate possessing the qualifications prescribed
under clause (c) of Rule 3 is not available or not
considered suitable, the Gujarat Public Service
Commission may recommend person possessing qualifications
of clause (b), with consistently good academic record
i.e. overall record of all assessments throughout the
academic career leading to Master's Degree on condition
that he will have to obtain a Master of Philosophy degree
level, within five years of his appointment, failing
which he shall not be eligible to earn future increment
till he obtains that degree or produces evidence of
equivalent published work of a high standard, as laid
down in the second proviso to Rule 3 of the Recruitment
Rules. The General Rules would apply, by virtue of Rule
1(3) thereof, to Gujarat Educational Services, Class II,
(Collegiate Branch), the recruitment to which is
regulated as per the said Rules of 1980 made by the
Governor under the proviso to Article 309 of the
Constitution.
11.5 It will thus be seen that the mode prescribed for
recruitment to the post of lecturers in GES, Class II
(Collegiate Branch), is by appointment by direct
selection and no other mode is envisaged by the
recruitment rules governing such appointment. The
recruitment rules clearly contemplate that the selection
will be made by the Gujarat Public Service Commission.
This is evident from the aforesaid two provisos of Rule 3
of the Recruitment Rules, which empowered the GPSC to
relax certain qualifications. Rule 9(2) of the General
Rules of 1967 requires such appointment to be made after
consultation with the Gujarat Public Service Commission,
because, admittedly, there is no regulation made under
the proviso to clause (3) of Article 320 of the
Constitution, dispensing with the process of consultation
so far as these posts are concerned. Both the General
Rules and the Recruitment Rules have the force of law
having binding effect on all concerned. Once the
Governor frames the Rules under the proviso to Article
309, the action of the State Government in respect of the
matters covered by the Rules should be regulated by such
Rules. The Rules framed under the proviso to Article 309
of the Constitution are solemn rules having binding
effect. In A.K.Bhatnagar v. Union of India, reported in
(1991) 1 SCC 544, the Supreme Court cautioned against
flouting of such rules by observing that acting in a
manner contrary to the Rules creates problem and
dislocation and that very often the government themselves
get trapped on account of their own mistakes or acts in
excess of what is provided in the rules, and held that
the Government, both at the Centre and in the State,
should take note of this position and refrain from acting
in a manner not contemplated by their own rules.
11.6 The Rules made under the proviso to Article 309
regulating the recruitment and conditions of services of
persons appointed to such services or posts will operate
with full force, subject to the provisions of the
Constitution or any Act made by the appropriate
Legislature, as contemplated by Article 309. Apart from
this limitation and in the absence of any Act of the
appropriate Legislature on the matter, the Rules will
have full effect and must be enforced. In the present
case, the recruitment rules for the post of Lecturer,
GES, Class II (Collegiate Branch) stipulate only one mode
of recruitment i.e. of "direct selection" from amongst
the modes available under Rule 9(1) of the General Rules.
Rule 9(2) of the General Rules framed under Article 309
of the Constitution require, as noted above, that, every
such appointment shall be made after consultation with
the Public Service Commission unless under a regulation
made under proviso to clause (3) of Article 320, such
consultation is not necessary. It would, therefore,
follow that there can be no relaxation of the basic or
fundamental rules of recruitment which prescribed direct
selection through the Public Service Commission as the
only mode of recruitment to the post for which the
recruitment rules are framed under Article 309. Mere
executive instructions under Article 162 read with
Article 166 cannot supercede the recruitment rules made
under the proviso to Article 309 which have the force of
law. Since there is no option left with the government
under the Lecturers, GES, Class II Rules 1980, to adopt
any mode other than of direct selection for appointment
to the post, will fly in the face of the recruitment
rules and cannot be validly recognised. In fact,
regularisation cannot be said to be a mode of
recruitment. [See R.N.Nanjundappa v. Thimmiah, reported
in (1972) 1 SCC 409].
11.7 The power of regularisation, in absence of any
provisions in the Act or Rules made under Article 309,
would be referable to the executive power under Article
162 and not to the legislative or rule making power under
Article 309. Therefore, when the field is occupied by
law which expression will include rules having force of
law, there would be no scope for exercising executive
power in a manner that would be in conflict with such
law. In the present case, there was no attempt made by
the State Government to absorb the ad hoc appointees by
making any regularisation or absorption rules having
force of law. The process of recruitment of Lecturers,
GES, Class II (Collegiate Branch) by way of direct
selection through the PSC which was undertaken, as per
the recruitment rules, cannot, therefore, be halted. In
fact, the appointment orders of such 342 direct recruits
who were selected are already issued (132 orders were
issued on 10th November 2001 and 210 on 9th October 2002,
of which 123 are awaiting posting, as stated by the
learned Advocate General). As held by the Supreme Court
in Piyara Singh's case (supra), the appointment of the
regularly selected candidates cannot be withheld or kept
in abeyance for the sake of the ad hoc / temporary
employees. In the present case, the ad hoc employees are
being replaced by the regularly selected employees and
therefore, the appellants cannot make any grievance
against such replacement which was contemplated by the
very nature of their ad hoc appointments, which temporary
status never was altered.
12. It was sought to be urged on behalf of the
appellants that the appointments of the appellants should
be treated as regular, because, they were having the
requisite educational qualifications when selected as per
the policy of local recruitment by a committee prescribed
by the government orders, dated 21st December 1992. The
circular dated 21st December 1992, which is on record,
shows that the instructions were issued by the office of
the Commissioner of Higher Education as regards the
procedure to be followed for local appointments in the
government colleges. It was, inter alia, mentioned
therein that there would be a Selection Committee for
taking interview of the candidates for the purpose of
such local appointments on ad hoc basis comprising Joint
Director of Higher Education or an officer of the rank of
Joint / Deputy Director authorised by the Joint Director
of Higher Education, who would be the Chairman, the
Principal of the concerned college, the senior most
lecturer of that college, and an expert in the subject
concerned, to be appointed from the panel of senior
lecturers prepared for the purpose. It was further
provided that, there should be at least three members
present in the Committee for discharge of its functions,
and that if the Chairman was not able to remain present,
the Principal of the College would function as a
Chairman. If the senior most lecturer who was the member
did not remain present, then it was left to the Principal
to call another senior lecturer of the same college. In
the same way, if the expert member who was lecturer from
the panel was not able to remain present for taking the
interview, it was left to the Principal to call the
lecturer teaching the subject concerned in the concerned
college itself. Marks were to be allotted from 25 marks
by each of the four members individually, and a merit
list was to be prepared on the basis of such allotment of
marks. The circular also provided for open interview.
In paragraph 11 of the circular, it was stated that,
ordinarily, the lecturers were to be selected through the
Gujarat Public Service Commission only on permanent
basis. However, as an exception, the ad hoc temporary
appointments were made as per the above procedure. If it
is not possible to make local appointments in the above
manner, in some special circumstances, local appointments
could be made after prior permission by adopting the
method of open interview. It is clear to us that the
local appointments of ad hoc lecturer by way of stop-gap
arrangement as per the procedure prescribed by the said
circular was not intended to prescribe any alternate mode
of regular appointment to the cadre of Lecturers, GES,
Class II Services, but by their very nature, such
appointments were subject to the availability of the
regular recruits. The conditions of local appointments
provided that the ad hoc appointees would be relieved as
soon as the PSC candidate or a transferee reported for
the post. This is clear from the condition No.7 of the
conditions of local appointments, which are placed on
record along with the said circular. In the appointment
orders, admittedly, it was specifically mentioned that
the appointment of these persons was purely on ad hoc
basis and they would have no right to the post of
lecturer. It was specifically stated in these orders
that, on the availability of the regular candidate
through the Public Service Commission or by transfer of
lecturers, the ad hoc employee will have to be replaced.
In cases of those who were appointed keeping their lien
in Class III posts in the Government schools, they were
required to be reverted and in other cases where there
was no such lien, the ad hoc recruits were to be
relieved. There is no dispute over the fact that the
appointments of all these appellants were made purely on
ad hoc basis, with a clear stipulation that they were to
be relieved on the availability of the GPSC candidate.
13. Selection by way of local arrangement for a
stop-gap appointment of lecturer by local committee in
which the college concerned had a major voice by virtue
of its principal and senior most lecturer being the
member of the Committee, of which quorum was three, can
hardly be compared with the selection by the Gujarat
Public Service commission, which is a constitutional
body, for regular appointment to the post in the cadre of
Lecturers, Gujarat Education Service, Class II, as per
the recruitment rules. The purpose of such recruitment
is aimed at securing the best available talent for the
teaching post. There is nothing common between such
local committees and the GPSC. The functions of the PSC
are meant to ensure that vacancies are filled by
deserving and capable hands and are not filled either by
the relatives or friends or flatterers. Though the
powers of the PSC are advisory in character, it is
required to be consulted, as provided by clause (3) of
Article 320 of the Constitution, unless such consultation
is dispensed with by a regulation made under the proviso
to clause (3) in respect of the specified matters or
particular class of case or circumstance. The Commission
having been entrusted with the constitutional duty to
select suitable candidates by inviting applications from
the open market, every eligible candidate will have a
fundamental right to seek consideration for selection
through open competition (See P. Ravindran v. Union
Territory of Pondichery, reported in (1997) 1 SCC 350).
13.1 The fact that there is no provision in the
Constitution which makes the acceptance of the advice
tendered by the PSC, when consulted, obligatory renders
the provision of Article 320(3) directory, and not
mandatory, but that does not amount to saying that it is
open to the executive government completely to ignore the
existence of the Commission or to pick and choose cases
in which it may or may not be consulted. The proviso to
clause (3) of Article 320 clearly envisaged framing of
regulations which are to be led before the Legislature,
if at all the process of consultation is to be dispensed
with in matters which are to be specified. Once such
regulations have been made, they are meant to be followed
in letter and spirit. It would not be open to the
executive government to bypass the process of recruitment
through open competition to be held by the PSC in
services which fall within its purview under Article 320
of the Constitution.
14. After having the experience of working of the
Government of India Act, 1935, which, in section 266,
provided for functions of the Federal and Provincial
Public Service Commissions, the defects that were noticed
in practice were sought to be remedied in Article 320
(embryonic form of which was Article 286 in the
Constituent Assembly Debates), by seeing to it that the
regulations exempting certain things from the scope and
jurisdiction of the PSC have to be placed before the
Parliament or Legislature, as the case may be, for its
scrutiny from time to time. Article 320 provides a
check, and indeed a very good check, on the vagaries of
the Executive by providing that the regulations
specifying matters in regard to which it will not be
necessary to take the advice of the PSC, are laid before
the Legislature and the Legislature will have the power
not merely to criticize such regulations, but to amend
them in any manner that it likes. This would ensure that
no regulations would operate unless the Legislature
approves them. Furthermore, by Article 323(2) of the
Constitution, the State Public Service Commission has
been enjoined with a duty to present annually a report of
its work to the Executive and the Governor is required,
on receipt of such report, to cause a copy thereof
together with a memorandum explaining, as respects the
cases, if any, where the advice of the Commission was not
accepted and the reasons for such non-acceptance, to be
laid before the Legislature of the State. Thus, should
the Executive be tempted unduly to disregard the advice
of the PSC, the representatives of the people will have
an opportunity of scrutinizing such action of the
Executive and preventing the Executive, in future, from
disregarding the considered advice of the Commission.
With the checks provided in these Articles, there is a
reasonable certainty that the Executive will be disposed
to act with caution and not to exercise its powers in an
arbitrary fashion and act as if the Public Service
Commission did not exist.
14.1 It will not be out of place here to remind
ourselves that, on 26th November 1949, while adopting the
Constitution, the President Dr. Rajendra Prasad, while
pointing out the salient features of the Constitution,
inter alia, observed;
"Our Constitution has devised certain independent
agencies to deal with particular matters. Thus,
it has provided for Public Service Commissions,
both for the Union and for the States and placed
such Commission on an independent footing so that
they may discharge their duties and without being
influenced by the Executive. One of the things
against which we have to guard is that there
should be no room as far as it is humanly
possible for jobbery, nepotism and favouritism.
I think the provisions which we have introduced
in our Constitution will be very helpful in this
direction."
15. It would follow from the nature of the functions
of the Public Service Commission that, being associated
with all matters relating to methods of recruitment to
civil services and for civil posts and on the principles
to be followed in making appointments, promotions and
transfers, as also with the suitability of candidates for
such appointments, promotions or transfers, the PSC is
under a constitutional obligation to exercise its powers
to be consulted in all matters in which it is required to
be consulted and the Executive is under the
constitutional obligation to consult it in all matters
which are not specifically excluded by the regulations
made under the proviso to clause (3) of Article 320.
Deliberate and consistent failure on the part of the
Executive to consult the PSC in matters in which it is
constitutionally obliged to consult, notwithstanding the
advice may not be binding on it, would bring about a
situation in which it would appear that the governance of
the State is not carried on in accordance with the
provisions of the Constitution, by on one hand paralysing
a constitutional body like the PSC from functioning and
on the other, short circuiting the provisions which
require regulations under the proviso to clause (3) to
Article 320 to be framed and to be laid before the
Legislature which can modify them, for deciding in which
specified matters, consultation with the PSC is to be
dispensed with. The power of the Legislature in context
of such regulations cannot be scuttled by the Executive
by going beyond the regulations which specify the matters
for which it is not necessary to consult, by refraining
from consultation as regards the matters not so covered
by such regulations. The PSC is under a Constitutional
obligation to send annual report which has to be laid
before the Legislature under Article 323 and in such
report, it would be obligatory on its part to report
about any deliberate inaction on the part of the
Executive Government to consult the PSC in respect of the
matters in which it is required to be consulted in the
absence of the regulations under the proviso to clause
(3) of Article 320, and point out the fact that it could
not do its work due to such inaction, deliberate or
negligent or because of reckless indifference, on the
part of the State Government so that the Legislature can
notice the breach of the constitutional requirement of
consultation from such report and take necessary action
expected of it.
16. As noticed above, consultation with the
Commission in any of the matters specified in paragraphs
(a) and (b) of clause (3) of Article 320 is not necessary
in respect of the posts specified in the Schedule to the
Exemption from Consultation Rules of 1960 and the post of
Lecturer, Gujarat Education Services, Class II, is not
included in that Schedule. Such consultation is,
however, not necessary in respect of the temporary
appointments to all other posts and services for a period
not exceeding or not likely to exceed one year as per
clause 3(b) of the Regulations of 1960. Thus, no
consultation is required when the post is to be filled in
for temporary period not likely to exceed one year. This
exemption does not authorise the State Government not to
consult the PSC in respect of the appointments which are
likely to exceed one year. This would mean that, in all
such cases, the Government is required to apply its mind
and decide before making any temporary appointment
whether such appointment is "for a period not exceeding
or not likely to exceed" one year. Even in cases where
the temporary appointment is not likely to exceed one
year, the Government issued circular dated 22nd January
1998 which is mentioned below Regulation 3 of the said
Regulations of 1960 that it is necessary to consult the
PSC if such temporary appointment involves relaxation of
recruitment rules of the post, finalised in consultation
with the PSC even in urgent cases. The Circular of 1992
issued by the Government under Article 162 of the
Constitution for making local appointments cannot expand
the scope of Regulation 3, and enable the Government to
make temporary appointments for an indefinite period
exceeding one year. It is an unfortunate situation that
the GPSC did not worry about the erosion of its power of
being consulted by the culpable inaction on the part of
the Government to consult it for appointments to the post
of Lecturers, Gujarat Education Service, Class II,
despite more than 400 vacancies having arisen.
16.1 It was contended on behalf of the PSC that, in
absence of getting the requisition from the Government
inspite of its reminders, it could not exercise its
functions. Correspondence was shown to us reflecting the
inaction on the part of the Executive in not consulting
the GPSC in respect of these vacancies and the lukewarm
attitude of the Executive. The GPSC need not have felt
itself helpless in not being able to do its work and
could have resorted to appropriate legal proceedings for
seeking a remedy against the State Government for
compelling it to perform its local obligation to consult
the Commission in matters in which it was as per the
Rules, Regulations and Constitutional provisions required
to be consulted. Such inaction on the part of the GPSC
as well as the State Government, which had put the
machinery of consultation in context of these posts to
disuse, verges on negligence in performance of the
statutory functions, and amounts to a reckless disregard
to the consequences of such inaction in breach of
statutory duties entrusted to them. Such reckless
inaction and breach of statutory duties would obviously
be attributable to the individuals who were required to
discharge their functions according to the rules,
regulations and the constitutional provisions requiring
consultation with the GPSC in the matter of such
appointments.
16.2 The provisions contained in Article 320 with
regard to the matters in respect of which the PSC shall
be consulted have been held not to be mandatory, because,
it was not stated what would be the consequences of the
disregard of these provisions, and, clause (3) warranted
exclusion of matters from consultation by the Executive.
This would mean that, from the point of view of the
public, the obligation laid on the Executive was not an
enforceable right but only a directive principle.
However, in such a case, the PSC is now able to mention
in its report under clause (5) of Article 320 about the
matters in which its recommendation was not accepted or
where it was not consulted though required to be so
consulted and such report will have to be placed before
the Legislature. The provisions of clause (5) of Article
302 was clearly enacted to ensure that there would be a
reasonable certainty that the Executive will be disposed
to act with caution and not exercise its powers in an
arbitrary fashion and act as if the Public Service
Commissions did not exist. If the Executive or the
personnel of the Commission do not discharge their duty
properly and without fear or favour, then they demean
these welcome constitutional provisions. After all, the
Constitution cannot either create competent men or compel
the Executive to choose the officers required to
discharge important functions with care and impartiality.
17. It was argued that, from the continuance of the
ad hoc appointees for long period, it should be inferred
that the recruitment rules were relaxed in their favour
and they are deemed to have been regularised. The
appointments of the appellants and the like were mere
local appointments made dehors the rules and such ad hoc
appointments could not have been made for a period
exceeding one year, without consulting the Public Service
Commission. The posts having not been filled up on
regular basis in accordance with the statutory rules were
required to be treated as vacant for the purpose of
undertaking the process of regular recruitment. The
terms of appointment of the ad hoc appointees clearly
stipulated that they would be relieved when the PSC
candidate or a transferee was available. Such ad hoc
status of these appointees did not at any stage alter by
any rules or regulations having force of law. The
appellants and the like who were appointed in ad hoc
capacity, therefore, continued to hold the posts in that
capacity only, and there would be no alteration of their
status from ad hoc appointees to regular recruits. As
held by the Supreme Court in State of M.P. v. Dharam
Bir, reported in (1998) 6 SCC 165, it is not open for any
government employee to claim automatic alteration of
status unless that result is specifically envisaged by
some provision in the statutory rules. The exigencies of
service often require ad hoc arrangement till the regular
selection gets finalised. If the ad hoc employees who
continued as ad hoc beyond one year are to be regularised
or deemed to have been regularised as argued on their
behalf, that would frustrate the very process of
selection and appointment as per the mode and procedure
prescribed by the statutory rules, and, as would happen
in the present case, no posts would be left for the
regularly selected persons, because, two persons cannot
hold the same post on a regular basis. As held by the
Apex Court in Piyara Singh's case (supra), efforts should
always be to replace such ad hoc employee by a regularly
selected employee as early as possible. Such temporary
employee may also compete along with others for such
regular selection / appointment and if he gets selected,
well and good, but if he does not, he must give way to
the regularly selected candidate. The appointment of the
regularly selected candidate cannot be held in abeyance
for the purpose of allowing the ad hoc employee to
continue. When the field is covered by the statutory
rules laying down the mode of regular appointments, the
Courts will not be justified in directing any
regularisation which may be dehors the rules. No
illegality should be allowed to perpetuate under the
Court orders. Therefore, the Court while holding that
the regular appointments by direct selection to the post
of Lecturers can be made only as per the recruitment
rules and the general rules in consultation with the GPSC
as contemplated thereunder, cannot, in the same breadth,
order that the ad hoc appointees irregularly continuing
beyond one year pending the availability of regular GPSC
recruits should be treated as regularised due to their
prolonged continuance on ad hoc basis. That would amount
to asking the government to violate the statutory rules
in the context of the ad hoc appointees while professing
to uphold and enforce them in context of the direct
recruits. Such self-contradictory approach would be a
mockery of the legal system. It would be for the State
Government to devise any scheme consistent with the
recruitment rules or a validating statutory provision, if
at all the ad hoc appointees are to validly hold the
post. It is obvious that the State cannot be compelled
by the Court to legislate in the matter for making any
statutory exception in the recruitment rules or to
retrospectively validate by a statutory provision any
such ad hoc appointment.
18. It was contended that the theory of precedent did
not mean picking up one of the cases decided by the Apex
Court and applying its ratio, but it meant taking into
account the ratio emerging after the study of all the
ratios of different decisions. Such formidable task may
evolve some hybrid ratio which may not have been intended
by the Apex Court even in its collective wisdom. The
proper course is to keep in mind the ratio as it emerges
in each case in the background of its facts and the
decision rendered and each decision of the Apex Court on
its own will constitute a binding precedent.
19. The contention that the direct selectees have no
right to claim the appointment even when included in the
select list prepared by the PSC and therefore, the
learned Single Judge should not have issued directions to
appoint them as contained in paragraph 77 of the
judgement, is not open to these ad hoc employees. The
State Government has not raised any such contention and
has, as per the recruitment rules, issued appointment
orders of these PSC selectees. The fact that the PSC
selectee on the select list cannot claim appointment as a
matter of right cannot create any entitlement in favour
of the ad hoc employee to continue as ad hoc employee in
a post which, as per the statutory rules, can be filled
only by direct selection through the PSC. There is also
no substance in the grievance made on behalf of the lien
holder ad hoc appointees against the directions contained
in paragraph 77 of the impugned judgement for applying
the principle of "last come first go" to the ad hoc
appointees.
20. The contention that some of the ad hoc employees
were wrongly not called for interview on the ground that
they did not satisfy the educational qualifications
prescribed by the recruitment rules which were
subsequently amended, is erroneous. Their qualifications
were necessarily required to be judged by the provisions
of the recruitment rules prevailing at the time of their
applying for such regular appointment and not with
reference to the time when they were initially appointed
by way of local arrangement on ad hoc basis about 10
years back, as was urged on their behalf.
21. Thus, a very sad picture emerges. There has been
a total callousness on the part of the Executive as well
as the Gujarat Public Service Commission which is a
constitutional authority, in the discharge of their
important constitutional functions in the matter of
making appointments to the cadre of Lecturers, Gujarat
Education Service, Class II (Collegiate Branch).
Appointments on ad hoc basis were made from time to time
and there has not been any attempt to consult the GPSC by
sending requisitions for all these posts or for extension
of ad hoc appointments beyond one year of the initial
appointments. From what the learned Advocate General and
the counsel for the GPSC have stated before us during the
arguments, though quarterly statements of the ad hoc
employees were required to be sent to the GPSC, as per
the government orders in force, they were in fact not so
sent for over a decade. The government, in their
Education Department, put up an excuse in their
communication dated 18th August 1998 addressed to the
GPSC that the ad hoc lecturers were appointed locally
till the end of the academic term, but some of them
obtained interim orders from the Courts for being
continued till regular PSC recruits were available, and
therefore, they had to be continued. The PSC in their
letters dated 27th January 2000 and 12th March 2001
addressed to the Government lamented that despite their
reminders, no information of ad hoc lecturers was being
furnished to it, nor was any proposal received by it for
continuing such ad hoc employees. In the letter dated
12th March 2001, the GPSC raised its meek voice stating
that it was neglected for over ten years in respect of
these ad hoc appointments, and that it took serious note
of indifference and negligence of the Government and
further that, if reply was not sent in 15 days, the PSC
will make a note of this matter in its annual report
(under clause (5) of Article 320). On 20th March 2001,
the Government sent reply to the GPSC with a request not
to make a note about its lapse (of not consulting the
GPSC) in its annual report. The correspondence was shown
to us by the learned Advocate General and the learned
counsel for the GPSC, because, during the hearing, we
asked them to explain to us the inaction on the part of
the Executive and the GPSC that had resulted in the
present impasse of the ad hoc lecturers continuing for
long years and many over ten years and the GPSC
candidates not being appointed as per the recruitment
rules for all these years. Copies of this correspondence
are placed on record and it makes a dismal reading
showing the utter careless and indifference of both these
august bodies.
22. No chastisement nor expressions of dismay and
disappointment have yielded any result in the past. This
is because the concerned officials of the Executive and
the GPSC may be labouring under an impression that
nothing more can be done in respect of such conduct
amounting to negligence, recklessness in discharge of
duties in public office or breach of statutory duties.
Administrative law directly affects the functioning of
the Executive by issuing writs or orders instructing the
administration how to act or what to refrain from doing,
in accordance with their statutory duties. Yet, there
are many situations where the administration may have
functioned improperly, but no effective remedy can be
employed post facto. What is done is done, to be left as
"fait accompli". Usually administrative law does not
award monetary compensation over losses caused by the
infringement of rights except in rare cases, but in this
regard, tort law makes a huge difference. As one of the
aims of judicial review is to encourage the public
authority to function properly through deterrence, it
stands to reason that tort law may and often prove to be
more effective deterrent than administrative law, for,
the authority may take risk of being ordered to change
its ways if court order is issued, but it may hesitate to
take such risk if it involves liability to pay
substantial compensation. In cases where plea of
immunity is not legally available, the court may consider
whether to impose tort liability on public authorities
exercising statutory powers and while doing so, it is
actually engaged in judicial review of the decision and
functioning of the executive in order to decide whether
the latter exercised its powers properly. The imposition
of tort law liability is tantamount to a finding that the
executive failed to function properly, and that, affected
person is entitled to rectifying remedies against the
authority. This venue of judicial review would co-exist
with the judicial review conducted by the Courts by
applying administrative law, to make the constitutional
remedies more effective in the public law field.
22.1 Though standard of negligence applied by the
Courts in determining where a duty of care has been
breached cannot be applied to policy decisions, it can be
applied to operational decisions. Accordingly, it is
possible that a duty of care may exist in relation to
discretionary considerations which stand outside the
policy category in the division between policy factors on
one hand and operational factors on the other. A public
authority may be under no duty of care in relation to
decisions which involve or are dictated by financial,
economic, social and political factors or constraints.
But, it may be otherwise when the courts are called upon
to apply standard of care, to action or inaction, that is
merely the product of administrative direction, expert or
professional opinion, technical standards or general
standards of reasonableness. The duty of care should
apply to a public authority unless there is a valid basis
for its exclusion as in case of a true policy decision of
the government. Why should people caused foreseeable
injury by the careless acts of others not have a right to
compensation against those with some responsibility or an
authority to prevent the wrong in question merely because
the activity related to public law sphere? The executive
authorities enjoined with the duty to consult the Public
Service Commission for recruitment as per the recruitment
rules were acting in the sphere of the operational part
of the process as distinguished from the policy decision
division requiring the recruitment to be made as provided
by the recruitment rules. Even relaxation aspect may be
considered as a part of policy decision under the Rules.
But the function to send requisition to consult the GPSC
was purely an administrative function involving no policy
considerations or a quasi-judicial process. The
consequences of continuing the ad hoc appointments beyond
permissible one year without consultation, resulting in
the ad hoc employees remaining in ad hoc status for a
number of years which was wholly irregular in absence of
the consultative process could have easily been foreseen
by the concerned executive officers, who did not take
reasonable care in discharge of their functions, which
required them to send requisitions for regular direct
recruitment through the PSC and even to consult it for ad
hoc continuance of these temporary employees or to do any
permissible relaxation in consultation with the PSC.
Such careless default on the part of the executive
authority directly resulted in ad hoc continuance of all
those lecturers for so many years that it may have
virtually washed away any opportunity to settle again,
which they would have had if they were relieved after one
year of ad hoc appointment or on being considered as to
whether they could be absorbed by a legitimate process
within the bounds of statutory rules governing the
services. There are no legitimate and proportionate
reasons to show why the authority failed to act in the
way it did. Now that compensation can be awarded against
public authorities for violation of fundamental rights in
exercise of their powers, there is no rationale for any
wide exclusionary rule for such liabilities.
23. The tort of misfeasance in public office has two
forms, which are the alternative ways in which such tort
can be committed, namely, (1) cases where public power
was exercised for an improper purpose with the specific
intention of injuring a person or persons (i.e. targeted
malice), and (2) cases where a public officer acted in
the knowledge that he had no power to do the act
complained of and that it would probably injure the
claimant. In the second category of cases, an act
performed in reckless indifference as to the outcome was
sufficient to ground the tort. When the public officers
acts with a state of mind of reckless indifference to the
illegality of his act, it involves bad faith inasmuch as
the public officer does not have an honest belief that
his act is lawful. The misfeasance consists in the
purported exercise of a power otherwise than in an honest
attempt to perform the relevant duty. It is that lack of
honesty which makes act an abuse of power. The rationale
of this tort of misfeasance in public office is that in a
legal system based on rule of law, executive or
administrative power may be exercised only for the public
good and not for ulterior and improper purposes.
Reckless indifference to consequences is as blameworthy
conduct as deliberately seeking such consequences. It
has been treated as settled law in England that an act
performed in reckless indifference as to the outcome is
sufficient to ground this tort. (Lord Steyn in Three
Rivers DC v. Bank of England (No.3), reported in [2000]
3 All ER 1, also see Lord Hope in Three Rivers DC v.
Bank of England, reported in (2001) 2 All ER 513,
paragraphs 42 and 44].
23.1 Torts may arise as a result of malfeasance,
misfeasance or non-feasance. Malfeasance would be a
wrongful act by a State officer in performance of the
officer's duties that is substantially outside the scope
of the authority of the officer and that substantially
infringes on the rights of a person or entity. As
malfeasance requires the intentional commission of an
unlawful or wrongful act, the focus is on the action
taken by the official. In contrast, non-feasance focuses
on the official's failure to act. Misfeasance has been
defined as malicious abuse of power, deliberate
maladministration and unlawful acts causing injury by
public officer. While actual malice, if proved, would
render the public officer's action, both ultra vires and
tortuous, it would not be necessary to establish actual
malice in every claim for misfeasance in public office.
(See Common Cause, a registered society v. Union of
India (1999) 6 SCC 66, paragraphs 82 and 98).
Misfeasance is now recognised as imputable to discharge
of duty arbitrarily. Misfeasance being a deliberate
tort, the focus is on the state of mind of the wrong-doer
at the time the relevant act is done or omission is made.
For the purposes of misfeasance, the mental element is
satisfied by either (1) evidence of malice, or (2)
knowledge of the absence of power which includes reckless
indifference as to the extent of power. Malice will
exist if the act was done with an actual intention to
cause injury. The requirement of malice will also be
satisfied if the act was done with knowledge of
invalidity or lack of power and with knowledge that it
would cause or be likely to cause such injury. The
present case is a case of the executive recklessly
discharging both a known constrain on its power and the
permissible means of fulfilling its known duty of acting
as per the statutory rules in the matter of appointments
to the posts of Lecturers, GES, Class II. Here the
constitutional provisions, the recruitment rules and the
general rules having force of law protect the interests
of the eligible persons of being given an equal
opportunity in the matter of public employment i.e. from
being considered for the post of Lecturer, GES, Class II
as per the recruitment rules in consultation with the
GPSC which interest was jeopardized by the executive by
continuing ad hoc appointees contrary to law. The
present case is not of targeted malice but of knowledge
of the absence of power which includes the reckless
indifference as to the extent of power. A broad notion
of malice would include such knowledge and reckless
indifference. The inclusion of reckless indifference as
a relevant state of mind is consistent with the notion
that misfeasance is a deliberate tort.
23.2 The exercise of power by not sending the
requisition causing the ad hoc lecturers to continue
contrary to the recruitment rules was invalid in the
sense that the concerned public officer had no power to
continue them beyond one year without consultation with
the PSC and by continuing them beyond one year, the power
had been miscarried by the public officer. Thus, the
first element of the tort of misfeasance in public
office, namely, the public officer committed an invalid
act or omission stands established on admitted facts.
23.3 Second element of this tort which requires that
the public officer knowingly acted in abuse of power is
also established, because, it is evident that the public
officer involved acted with actual knowledge of lack of
power to continue ad hoc appointees beyond one year in
face of the specific provisions of the Constitution, the
Recruitment Rules and the General Rules and in
arbitrarily continuing the ad hoc appointees and not
following the recruitment rules and procedure prescribed
for recruitment to the post.
23.4 The third element of this tort of injury being
suffered by the persons concerned is also present,
because, as a result of the wrongful act of the public
officer in not sending requisitions for 435 posts from
time to time to the GPSC as per the statutory
requirements, and wrongfully continuing the ad hoc
appointees for more than ten years acting with reckless
disregard to the legal consequences of such act and
omission, the aspirants for the posts have suffered
disadvantages that they may not have suffered if the
power had been validly exercised.
23.5 Thus, apart from the tort of negligence (which is
the failure to exercise reasonable and prudent care in
relation to a situation), the public authority would
commit tort of misfeasance in public office when acting
in reckless indifference as to the outcome of its act
which he had no power to do, tort of nonfeasance in
public office on failure to perform specific acts that
are the required duties of the officer, and general tort
of breach of statutory duty where it commits breach of a
particular statutory duty. In the present case,
statutory obligations required the executive authorities
to fill up the posts of lecturers in government colleges
by following the procedure of direct selection through
the GPSC for which the requisitions were to be sent when
the vacancies arose. The law did not permit ad hoc
appointments to these posts beyond one year without
consulting the GPSC. The executive authorities did not
consult the GPSC for over ten years and continued the
appointments of the ad hoc lecturers illegally. This
breach of statutory duty cast upon the executive was
obviously known to the concerned authorities. They acted
with reckless indifference to the consequences of their
inaction in the matter of undertaking the process for
direct recruitment and committed breach of the statutory
provisions by continuing the appointments of ad hoc
appointees beyond one year without consulting the GPSC.
The consequences of their reckless disregard to the
statutory provisions was that the periodic PSC
examinations in which selections could have been made for
direct recruitment were not held thereby denying those
who could have competed, an equal opportunity in the
matter of public employment. The conduct of the
authorities in arbitrary continuance of ad hoc appointees
was violative of fundamental rights of others, who would
have otherwise had an opportunity to compete for
selection, had the executive initiated the process of
recruitment to 435 vacant posts in time, as per the
recruitment rules. The executive authority, therefore,
clearly acted with a state of mind of reckless
indifference to the illegality of its act and the risk of
violating the fundamental rights of the prospective
candidates under Articles 14 and 16 of the Constitution.
By not sending the requisitions to the GPSC in time, the
executive authority failed to perform its required
duties. Even though special damages cannot be the
subject matter of public law proceedings, the improper
interface between notions of unlawful acts in judicial
review proceedings and rights to damages in tort means
that some victims of bureaucratic recklessness in
discharge of statutory duties currently go uncompensated.
We may however put the public authorities guilty of the
tort of misfeasance or non-feasance in public office or
the general tort of breach of statutory duty to guard
that they would be liable to action for damages for such
acts, if claimants were to seek damages for consequential
economic loss by establishing that the public officers
acted in the knowledge that his act would probably injure
the claimant.
24. In public law, claim for compensation is a remedy
available under Article 226 for enforcement and
protection of fundamental and human rights and the
defence of sourvereign impunity is inapplicable and alien
to the concept of guarantee of fundamental rights. As
held by the Supreme Court, such remedy is a practical and
inexpensive mode of redress available for contravention
made by the State and its servants in purported exercise
of their powers and enforcement of the rights or duties
under the Constitution or the law. (See Consumers
Education & Research Centre v. Union of India, reported
in (1995) 3 SCC 42). Moreover, the principle of
vicarious liability apply as much to misfeasance in
public office as to other torts involving malice,
knowledge or intention, (See Racz v. Home Office (1994)
1 All ER 97). The Supreme Court has held that the remedy
of compensation available in public law is "distinct from
and in addition to the remedy in private law for damages
for tort", resulting from the contravention of the
fundamental rights [See Nilabati Behera (Smt) alias
Lalita v. State of Orissa reported in (1993) 2 SCC 746,
D.K.Basu v. State of W.B., reported in (1997) 1 SCC 416,
Common Cause, A Registered Society v. Union of India,
reported in (1999) 6 SCC 667]. In case where the tort of
misfeasance or non-feasance in public office or of
general of breach of statutory duty is established and no
factual dispute arises in respect of such default in
public law proceedings, the court will be within its
power to award compensation as a remedy against the
defaulting public officer and also the State Government
for its vicarious liability. Such interface between the
public law remedy and tort law would be essential to meet
the ends of justice and will act as a deterrent against
the public authority for preventing it from acting with a
reckless disregard of the statutory provisions to the
detriment of the public.
25. The continuance of these ad hoc lecturers for
many years beyond the first year for which the
consultation from the GPSC was not necessary in view of
the ad hoc nature of appointment may have nurtured hope
in them that they will be regularised. In fact, in the
office note, which is at Annexure "II" of the affidavit
filed on 14th October 2002 in Letters Patent Appeal No.
817 of 2002, there is a reference to the fact that the
office bearers of the Association were heard by the
Hon'ble Chief Minister on 17-5-1999 in a public relation
meeting, and that the Chief Minister had given a
direction that the decision would be taken on the basis
of the report of the Cabinet Sub-Committee, and that, in
principle, it was decided to continue these ad hoc
employees and the concerned Minister will give directions
as to the matter of holding of examination by the PSC.
Though this note cannot be said to be an order of the
Government and only reflects that the matter was in
contemplation of the Government, such consideration would
have given the ad hoc lecturers to understand that they
will be regularised in service. Even in the affidavit of
the Government filed on 14th June 2001 in Special Civil
Application No. 2395 of 2000, it was stated that the
Government had, pursuant to the order dated 4-5-2001,
made in the said petition, directing the State Government
to decide the representations of the ad hoc lecturers,
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 local selection
committee constituted under the circular dated 21-12-1992
should be regularised from the date of their appointment
as was done in the case of Medical Officers, Ayurved,
Class II, under the G.R. dated 4-12-1999, and that for
regularising the services of all such ad hoc appointees,
a reference to the GPSC should be made to obtain its
approval, as a special case. There was, therefore, clear
indication that the case of these ad hoc employees would
be regularised in consultation with the GPSC. However,
that stand was changed, when it dawned on the Executive
that they committed a legal blunder, in the affidavit,
because, these ad hoc appointees could not have been
regularised contrary to the Recruitment Rules in the post
for which direct recruits were already selected through
the PSC. In fact, according to us, these matters should
not be viewed as having a "lis" between the ad hoc
lecturers and the regular direct selectees. The direct
selectees cannot be penalised to wait though selected as
per the statutory rules through the PSC. They are
rightly allowed to man the posts earmarked to be filled
by them. The ad hoc lecturers, if at all, will have a
legitimate grievance against the executive for continuing
them on ad hoc basis for all these years without
consultation with the GPSC, creating a hope in them that
they will be some day absorbed. The executive acted in
an arbitrary fashion in continuing them contrary to the
statutory rules which empowered it to make ad hoc
appointments only for a year and in breach of its
statutory obligation to fill the post in the manner
prescribed by the Rules. It will be for the government
to consider the feasibility of giving appropriate relief
in consonance with their statutory powers where such ad
hoc appointees have been continuing over a long number of
years. Issuing general declaration of indulgence is not
the part of a court's jurisdiction, as held in Piyara
Singh's case (supra) by the Supreme Court. The
contentions raised on behalf of the appellants cannot,
therefore, be accepted.
26. Though these ad hoc lecturers cannot be directed
to be continued contrary to the recruitment rules, nor
can they be ordered to be regularised by any mode not
warranted by the statutory rules governing the
appointments to the cadre of Lecturers, GES, Class II
(Collegiate Branch), in the facts and circumstances of
the case, we direct that these ad hoc lecturers be
treated as a separate class in view of their ad hoc
continuance for nearly a decade due to reckless
indifference in discharge of duties on the part of the
executive and be considered for absorption in such posts
as may be available with the government or under the
authority of the government in consonance with the
statutory provisions applicable to such posts. The State
Government is also directed to inquire into the serious
lapse of not consulting the GPSC while continuing these
ad hoc lecturers contrary to Recruitment Rules beyond one
year and fix the responsibility for the careless default
that has resulted in the ad hoc lecturers being continued
for long without consultation with the GPSC and for the
posts not having been filled through the GPSC, as per the
Recruitment Rules and the General Rules for over a
decade, especially when there was no interim order of any
Court, as we are told, which could have prevented the
process of regular recruitment.
26.1 For the reasons indicated above, we also direct
that each of the appellants - ad hoc lecturers who are
ordered to be relieved by the impugned action of the
State Government be paid, by way of a token compensation,
one month's salary, and such amount be recovered from the
defaulting officers who may be found by the State
Government to be responsible for the inaction in sending
requisitions to the Gujarat Public Service Commission or
in not consulting it while illegally continuing the ad
hoc lecturers beyond one year of their initial local
appointments, without bothering to consult the GPSC under
the Rules.
26.2 Subject to the above directions, all these
Letters Patent Appeals are dismissed with no order as to
costs. All the Civil Applications which are filed in
these Letters Patent Appeals stand rejected with no order
as to costs.
27. At this stage, the learned counsel for the
appellants prays that the operation of this order may be
stayed to enable the appellants to approach the Higher
Forum. This prayer is not justified at this distant
point of time and especially when the direct recruits who
are already issued appointment orders are waiting for
their posting. The request is, therefore, not acceded
to.
[R.K.ABICHANDANI, J.]
[SHARAD D. DAVE, J.]
parmar*
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