Rule. Service of notice of rule has been waived by learned counsel appearing on behalf of the respective respondents. With the consent of both the sides, the matters are heard finally today. 1. The petitioners herein were appointed on the post of English Stenographer Grade-II and Assistant (Junior Clerk) by respondent no.3, District Court, Narmada at Rajpipla, vide different orders passed between 2006 to 2011. The petitioners were appointed on the said post, in pursuance of the selection process undergone by the eligible candidates, whose names were forwarded to respondent no.3 by the District Employment Exchange. The petitioners have been discharging their duties as such since their date of appointment.
2. On 15.02.2012 the High Court of Gujarat published an Advertisement for filling up 2084 posts of Assistant (Junior Clerk) on regular basis. The petitioners apprehend that they would be removed from service by the respondents in order to accommodate candidates who shall be selected in pursuance of the Advertisement in question.
3. The petitioners have, therefore, preferred the present petition for issuance of a Writ of Mandamus or any other appropriate Writ, order or direction that the petitioners have been regularly appointed on permanent vacant posts on the establishment of respondent no.3, District Court, Narmada at Rajpipla and they are entitled to receive regular pay-scale of the cadre from the date of their initial appointment with all consequential benefits; and to restrain the respondents from removing and / or discharging the petitioners from the said post; and also to direct the competent authority to accept the Application Forms of the petitioners pursuant to the Advertisement dated 15.02.2012 who have become over-aged.
4. Heard learned counsel for the respective parties.
5. Mr. JT Trivedi learned counsel appearing on behalf of the petitioners submitted that the petitioners were appointed on the post in question in pursuance of the orders of appointment dated 10.07.2006 and 01.03.2007 (in case of petitioner no.1 only) issued by the competent authority of respondent no.3, District Court, Narmada at Rajpipla. They were appointed on vacant regular posts, after following due process of law and on the basis of the prevailing Policy of the respondent-State. The petitioners also possess requisite educational qualification, as described in the Advertisement dated 15.02.2012 published by the High Court of Gujarat. Therefore, the petitioners deserve to be paid regular pay-scale.
5.1 Learned counsel Mr. Trivedi submitted that some of the petitioners are not able to apply for the posts advertised in the Advertisement dated 15.02.2012 since they had crossed the upper age-limit. He, therefore, submitted that the respondents ought to have granted additional age relaxation to such persons considering the total years of service rendered by them.
5.2 Learned counsel Mr. Trivedi further submitted that the system of appointing persons on “ad hoc” basis is unconstitutional and that it is not known to service jurisprudence. In support of his submission, learned counsel has placed reliance upon a decision of the Apex Court in the case of Gujarat Agricultural University v. Rathod Labhu Bechar and others, AIR 2001 SC 706. In that case, a Scheme was proposed for regularization of daily rated labours of Gujarat Agricultural University, who had completed more than 10 years of continuous service with minimum of 240 days in each calendar year as on 31.12.1999 and certain eligibility criteria was also fixed. It was held by the Apex Court that workers working in post for long number of years without complaint, by itself sufficient qualification and that long experience is equitable with such qualification.
5.3 Learned counsel for the petitioners placed reliance upon a decision of the Apex Court in the case of State of Jharkhand and others v. Manshu Kumbhkar, (2007) 8 SCC 249 and more particularly on the observations made in Para-12, which reads thus;
“12. In Ashwani Kumar v. State of Bihar it was noted in paras 13 and 14 as follows: (SCC pp.17- 20) "13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity... As we have seen earlier when the initial appointments by Dr Mallick so far as these daily-wagers were concerned, were illegal there was no question of regularising such employees and no right accrued to them as they were not confirmed on available clear vacancies under the Scheme. It passes one's comprehension as to how against 2500 sanctioned vacancies confirmation could have been given to 6000 employees. The whole exercise remained in the realm of an unauthorised adventure. Nothing could come out of nothing Zero multiplied by zero remains zero. Consequently no sustenance can be drawn by the appellants from these confirmation orders issued to them by Dr Mallick on the basis of the directions issued by the authorities concerned at the relevant time. It would amount to regularisation of back-door entries which were vitiated from the very inception. Whether they are posts or vacancies they must be backed up by budgetary provisions so as to be included within the permissible infrastructure of the Scheme. Any posting which is dehors the budgetary grant and on a non-existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised. No right would accrue to the incumbent of such an imaginary or shadow vacancy.
14. In this connection it is pertinent to note that question of regularisation in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of a situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisation and whatever purported regularisation was effected in their favour remained an exercise in futility. The learned counsel for the appellants, therefore, could not justifiably fall back upon the orders of regularisation passed in their favour by Dr Mallick. Even otherwise for a regularising such employees well- established procedure had to be followed. Even this letter clearly indicates that the posts had to be filled up by following the prescribed procedure. Despite all these communications neither the initial appointments nor the confirmations were done by following the prescribed procedure. On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so-called regularisations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the Scheme by Dr Mallick. For all these reasons, therefore, it is not possible to agree with the contention of the learned counsel for the appellants that in any case the confirmations given to these employees gave them sufficient cloak of protection against future termination from services. On the contrary all the cobwebs created by Dr. Mallick by bringing in this army of 6000 employees under the Scheme had got to be cleared lock, stock and barrel so that public confidence in Government administration would not get shattered and arbitrary actions would not get sanctified."
5.4 Learned counsel for the petitioners had also relied upon a decision of this Court rendered in Writ Petition (PIL) No.49/2011 dated 20.01.2012.
6. Mr. Shalin N. Mehta learned senior counsel appearing on behalf of respondents no.1 & 3 submitted that the petitioners were appointed on purely temporary ad-hoc basis by way of stop-gap arrangement. There was a clear stipulation in their appointment orders that they would have to make way when regularly selected candidates become available for the said post. Further, the petitioners were not selected through regular selection process and therefore, their appointment orders characterized them “as purely temporary ad-hoc basis by way of stop-gap arrangement”. Moreover, none of the petitioners has put in more than ten years of service. Hence, the petitioners cannot seek regularization.
6.1 In support of the above submission, Mr. Mehta has placed reliance upon a decision of the Apex Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 01 wherein, it has been held that Courts should desist from issuing orders preventing regular selection or recruitment and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. It has been held that directions issued by the Court to absorb, regularize or to permanently continue temporary, contractual, casual, daily-wage or ad hoc employees, appointed / recruited dehors the constitutional scheme of public employment, amounts to creating another mode of public employment, which is not permissible. In paras no.-12, 45 & 53 of the judgment, it has been observed thus;
“12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed ”
7. Learned senior counsel Mr. Mehta submitted that the Advertisement dated 15.02.2012 already grants age relaxation of five years in the category of open merit and therefore, no additional age relaxation can be granted for open merit candidates.
7.1 In support of his submission, reliance has been placed on another decision of the Apex Court in the case of Union of India and another v. Arulmozhi Iniarasu and others, (2011) 7 SCC 397, wherein it has been held that the doctrine of legitimate expectation is inapplicable in case of part-time contingent casual labourers, who have been uninterruptedly engaged for long durations ranging between 8-14 years, since at no point of time, a promise was held out to the respondents by State that they would be absorbed as regular employees of the Department and the terms of their appointment letter very clearly in unambiguous terms stated that their appointments were temporary and would not confer any right to claim any permanent post in the Department. It was further held that Writ of mandamus can be issued by High Court only when there exists a legal right vested in the writ petitioner and corresponding legal obligation on State. Only because an illegality has been committed, the same cannot be directed to be perpetuated as there cannot be equality in illegality.
8. Mr. H.S. Soni learned AGP appearing on behalf of the respondent-State adopted the submissions advanced by learned senior counsel Mr. Mehta and submitted that the reliefs claimed by the petitioners do not deserve to be granted since their appointment was on purely temporary and ad-hoc basis. It was, therefore, submitted that the present group of petitions deserve to be dismissed.
9. The petitioners herein were appointed as English Stenographer Grade-II Assistant (Junior Clerk) in District Court, Jamnagar, by the then Principal District Judge, Narmada at Rajpipla. Until recently, the selection procedure to different posts on the administrative side, in subordinate judiciary of the State, was done by the competent authority of the District Court concerned, depending upon the administrative exigency and the High Court used to act as the authority approving the select list of appointees. It was by the issuance of Advertisement No. R.C./1434/2011 dated 15.02.2012 by the High Court of Gujarat that appointment to different posts on the administrative side, in subordinate judiciary throughout the State, was taken over by the High Court of Gujarat, by way of a centralized recruitment system. The petitioners herein were appointed by respondent no.3 on account of the administrative exigency that prevailed at the relevant time.
10. For the purpose of this group of petitions, it would be beneficial to reproduce the relevant part of the order of appointment, which reads as under;
“The Principal District Judge, Narmada At- Rajpipla is pleased to pass the following orders for appointments and postings with immediate effect.
.....
He / She shall take note that his / her appointment is purely temporary and on ad hoc basis by way of stop gap arrangement and his services are liable to be terminated at any time without any notice and without assigning any reasons. He shall not be entitled to claim any allowances and leave. He is directed to furnish an undertaking for the temporary service and not entitled to claim any right for permanent post and declaration of plural marriages etc. at the time of resuming his duties. He shall generally be governed by the Government Rules in force.”
10.1 A plain reading of the order of appointment goes to show that the petitioners were appointed on the posts in question on account of the administrative exigency that prevailed at the relevant point of time. It was stated in the order of appointment, in no uncertain terms, that their appointment is purely temporary and on ad hoc basis, by way of stop-gap arrangement and also that their services are liable to be terminated, at any point of time, without issuing any Notice and without assigning any reasons. It was also stated that the petitioners shall furnish an Undertaking for the temporary service and shall not claim any right for permanent post
10.2 In The Pocket Oxford Dictionary and Thesaurus, 2003 Edition, the word “ad hoc” has been defined as “for one particular purpose”. The Webster's New World Dictionary, Second College Edition, defines “ad hoc” as “for this specific purpose”, “for a special case only, without general application”. If we go by the Dictionary meaning of the term “ad hoc”, as appearing in the order of appointment, it can be said that the petitioners were appointed for a specific purpose. The order also speaks that appointment is made “as a stop- gap arrangement” meaning thereby, that until the regularly selected candidates are available, the petitioners shall continue to work on the post in question. Such appointment was made in order to meet with the administrative exigency of the District Court. The order of appointment is self-explanatory. No where the order states that the appointment of the petitioners is on regular or permanent basis. In fact, it categorically states that the appointment is on a “purely temporary” basis. Therefore, there is not an iota of doubt that the petitioners herein were appointed as English Stenographer Grade-II / Assistants (Junior Clerks) in the District Court on purely temporary basis for the purpose of meeting with the administrative exigency of non- availability of regularly selected candidates. It, therefore, consequentially follows that no soon as the regularly selected candidates are appointed, the petitioners shall have to make way for them.
10.3 It may be that the petitioners are appointed, after their names were forwarded by the District Employment Exchange and after they had cleared the examination conducted by the District Court, Jamnagar. Therefore, at the most, it could be said that the appointment of the petitioners was not illegal. However, since the petitioners were appointed without following due process of law, viz. not in pursuance of any public advertisement, their appointment is, undoubtedly, “irregular”. Had the petitioners been appointed through a regular selection process, then the order of appointment would not have read such but, since their appointment had risen out of administrative exigency and no due selection process was followed, their service was categorized to be “purely temporary” and on “ad hoc basis”. Learned counsel for the petitioners was not in a position to show that the petitioners were appointed on the post after following due selection process.
11. The High Court published the Advertisement dated 15.02.2012 in which age relaxation is already granted. If further relaxation as prayed for is granted for the purpose of accommodating some of the petitioners, who had become over-aged, then it would amount to travelling beyond the scope of Advertisement. This Court does not have the powers to grant age relaxation in matters pertaining to recruitment. The appropriate authority to decide the issue of age relaxation is the appointing authority itself and not the Court. Considering the principle laid down by the Apex Court in Arulmozhi Iniarasu's case (supra) wherein the Apex Court has categorically held that writ of mandamus can be issued by High Court only when there exists a legal right vested in writ petitioner and corresponding legal obligation on State, I do not find this to be a case wherein writ jurisdiction could be exercised in favour of the petitioners by further granting age relaxation.
12. The case of the petitioners for regularization also could not be considered for the reason that none of the petitioners satisfy the criteria, as prescribed by the Apex Court in Umadevi's case (supra). In the opinion of this Court, the appointment of the petitioners can be considered as “irregular” and not “illegal” and therefore, the petitioners could be given the benefit of regularization, if they had continued to work for ten years or more, without the intervention of the orders of Courts or Tribunals, as has been held in para-53 of Umadevi's case (supra). There is no dispute about the fact that the petitioners have been working on regular vacant posts since the date of their appointment. However, the petitioners have not completed ten years of service and therefore, they could not be granted the benefit of the principle rendered in Umadevi's case (supra). Therefore, on this count also, the petitioners could not be granted the benefit of regularization.
13. The decision rendered in Gujarat Agricultural University's case (supra) and relied upon by learned counsel for the petitioner shall not come to the rescue of the petitioners since in that case the concerned University had framed a proposed Scheme for regularization of daily rated labourers subject to fulfillment of certain eligibility criteria. However, in this case, no such Scheme of regularization is in existence. As stated herein above, the petitioners have claimed regularization though their orders of appointment categorically speak that their appointment was purely temporary and on ad hoc basis and as a stop-gap arrangement. Therefore, the facts of this case are totally different to the facts of the case relied upon by learned counsel Mr. Trivedi and hence, the said decision shall not apply to the case on hand. Considering the facts of the case and the principle rendered in Umadevi's case (supra), I find no reasons to entertain the present petition.
14. For the foregoing reasons, the petition fails and is, accordingly, dismissed. Rule is discharged.
[K. S. JHAVERI, J.] Pravin/*