The petitioner herein has challenged the action of the respondents in terminating his services before completion of the contractual period under Article 226 of the Constitution of India. Petitioner possesses Master Degree in Rubber Engineering and belongs to SEBC category. It is his case that pursuant to an online- advertisement issued by the respondent no.2, he had applied for the post of Asstt. Professor [Rubber Technology]. On 19th October 2013, he was offered employment for a fixed period of 11 months or till the regularly selected candidates by Gujarat Public Service Commission are appointed. Petitioner joined service on 21st October 2013 on such contractual appointment, however, the said services came to be terminated on 26th June 2014. It is the say of the petitioner that ostensibly, regularly selected candidates are appointed on two of the posts, but in fact, there are other posts vacant, and therefore, his contractual services could not have been terminated. It is the say of the petitioner that for BE students and ME students, the department of Rubber Technology is divided into two divisions. The strength of the Department was of 5 Professors; 1 Associated Professor and 4 Assistant Professors. Each one was required to put in 16 hours in a week. The College that is in need of 6 Assistant Professors is only provided with 4 posts of permanent Assistant Professors and the two posts are yet vacant and still his termination has come, and hence, this writ petition.
On issuance of rule by order dated 30th March 2015, for and on behalf of the respondent no. 2, the Joint Director, Technical Education, Gujarat State has filed affidavit-in-reply contending inter alia that the candidates for the post of Assistant Professors in Engineering Colleges in Rubber Technology Department are made available through Gujarat Public Service Commission, and therefore, services of the petitioner had been terminated on availability of regularly appointed candidates. It is further contended that the appointment of the petitioner since was made on contractual basis, the same came to be terminated on availability of regularly appointed candidates. It is also contended by the said respondent that the posts which are lying vacant were created subsequent to the appointment of the petitioner on contractual basis, and therefore, it cannot be said that there are vacancies of the posts on which the petitioner was appointed. Further affidavit-in-reply is also filed by the respondent no.2 contending inter alia that remaining two posts subsequently created would be filled in by the respondent-authorities as and when the candidates would be made available through GPSC. It is further contended that the work-load of the vacant seats could be adjusted by sharing the work amongst the teaching staff and the same can be done even by inviting the visiting faculties. The petitioner not having been selected by the Gujarat Public Service Commission would have no right to continue as per the Circular dated 27th August 1997. It is also urged that the petitioner has executed an undertaking on a stamp-paper with respect to acceptance of the aforesaid condition and other conditions stipulated in his appointment order, and therefore, he cannot raise any dispute.
Rejoinder affidavit is filed disputing the statement of two posts lying vacant. According to the petitioner, such posts have not been filled up with regular/permanent candidates. Those two posts are still vacant, and therefore, since the contract of the petitioner was terminated before expiry of 11 months, he was required to be protected. It is further averred that six posts of Asstt. Professors are required as per AICTE norms, out of which two are still vacant. Therefore also, the respondents cannot be permitted to take disadvantage of the norms set out by AICTE.
Additional Affidavit-in-Reply has also been filed by the respondent no. 2, through the Joint Director of Technical Education indicating that pursuant to an advertisement given on 27th September 2012, two posts of Assistant Professors in Rubber Technology came to be filled up on contractual basis, till the availability of regularly selected candidates by the GPSC. It is contended that another two posts have been sanctioned by the Finance Department in the budgetary provision for the year 2013-14 and a requisition has been sent to the GPSC by the Education Department which in turn shall publish an advertisement. It is the say of the respondent in its further affidavit-in-reply dated 9th April 2015 that as per guidelines of AICTE as well as Department of Technical Education, and more particularly, the AICTE approval process Handbook for the year 2013-14, a conscious decision has been taken that for the existing work load for the different cadres in the Government Colleges; which were earlier governed as per the Circular dated 4th July 2001, were required to be revised. The post of Lecturer; which is now re-designated as Assistant Professor, was having a workload of 18 hours in a week, has been revised to 20 hours a week. The other two sanctioned posts may not be required to be filled in as the existing staff shall have the work, as per the work-load revised vide Circular dated 7th February 2015. The factum of the posts having been sanctioned in the month of May-June 2013, prior to the appointment of the petitioner on contractual basis, is not controverted.
Learned advocate Mr. Qureshi has fervently made his submissions. According to him, in various reply affidavits filed by the respondent no.2, the deponent had not come out with the true facts.
Learned Assistant Government Pleader Mr. Ashar has emphasized on the fact that with the enhancement in the working hours per week, there would be no requirement of even employing teaching staff on contractual basis. He emphasized that the petitioner would have no lien as his contractual appointment would come to an end the moment regularly selected candidates are appointed by the GPSC.
Having thus heard both the sides and having considered the material on record, at the outset, it is necessary to make it amply clear that the State when is litigating as the respondent, it is expected of the State to present, as a litigating party, the fair picture on facts. Any truncated version is surely not expected of any litigating party, much less from the State. This is with reference to the averment made on affidavits by none other than very senior officer who continued to insist that the posts on which the appointment of the present petitioner was made on contractual basis were created subsequent to the appointment of the present petitioner. With a view to emphasize that the vacancy of the post of Assistant Professor is not on which the petitioner was appointed, such aspect has been reiterated. When, in fact, it has been pointed out by the petitioner in his further affidavit- in-rejoinder dated 19th August 2014 that the post on which the petitioner was appointed was sanctioned somewhere around the months of May-June 1013 ie., prior to the appointment of the petitioner. It could be noticed from the documents brought before this Court that the sanctioned posts shown in a reply to application moved under the Right to Information Act dated 26th May 2014, the number of posts shown of Professors was one; Associated Professors – two; and Assistant Professors – six in number, and out of which four posts are to be filled in by GPSC and two by contractual appointment. As on 26th May 2014, the posts of 2 Assistant Professors were found to be vacant. It is to be noted that this Court, while issuing Rule on 30th March 2015, had inquired with the learned Assistant Government Pleader as to whether any process for filling up two posts lying vacant has been under taken by GPSC as nothing has been stated with regard to filling of these two posts. However, later on also, nothing comes out clearly as to whether for the remaining two posts, any exercise has been carried out, as they appear to be contractual posts. The four posts of Asstt. Professors to be filled in [which are sanctioned post] have already been filled in. It is up to the State to decide as to whether it wants to fill up the vacancies at a given point of time. The Court cannot compel the State to fill up the vacancies. The State cannot be compelled to fill up the posts ordinarily of course if it amounts to a deliberate act of discrimination or an act of mala fides, the Court in writ jurisdiction surely can issue mandamus. At the same time, when the Government Resolution dated 7th February 2015 is pressed into service, issued pursuant to the guidelines of AICTE, it needs to be noted that the object of such guidelines is to enhance the quality of education being imparted in the State. It is all India guidelines for proper planning and coordinated development, regulation and maintenance of norms and standards in the technical education system throughout the country. The object is made very clear in the beginning which says that despite availability of proper infrastructure, laboratory facilities and furniture in the Government Engineering Colleges, as human resources are lacking, that affects the education of the students and their placement in the reputed companies. This also hampers the progress of the students of the State of Gujarat vis-a-vis the students of the other States. The Lecturer cadre ratio continues to be 1:2:6 which means availability of one Professor; two Associated Professors and six Assistant Professors is made a must. There has been increase in the working hours as well.
In light of such background, it is not a correct interpretation on the part of the respondent-State that on account of increase in the working hours, filling up of other two posts would not be necessary. This appears to be an incorrect stand and an interpretation which is in complete disregard to the spirit of bringing into effect the Resolution dated 7th February 2015. Continuing earlier set up of different cadres in the Government Colleges when the increased workload has come to stay, minimum that is expected is to fill up all those vacancies which exist. It was surely to ensure that this existing set-up coupled with the increased workload criteria would deliver better quality of education.
Reverting to the case of the present petitioner, on the posts sanctioned prior to his appointment, already two candidates selected by GPSC have been appointed vide Order dated 20th June 2014. Both the candidates joined duty on 24th June 2014 and 26th June 2014.. His contractual appointment was till the posts on which he was appointed was filled-up with a permanent candidate, recruited through GPSC or for the period of 11 months; whichever being earlier. Admittedly, the petitioner did not complete 11 months period, as his appointment came to be terminated in the month of October 2013 in wake of regularly appointed candidate. Nevertheless, this is not the case of respondents filing up the posts on ad hoc basis and replacing ad hoc appointee by another set of contractual/ad hoc candidates. Therefore, the petitioner may not get the relief of staying of the order dated 20th June 2014 or communication dated 26th June 2014.
The case of the petitioner cannot be equated with those of the petitioners of Special Civil Application No. 13200 of 2013 and allied cases, where this Court delivered its judgment on 30th January 2014 and on which heavy reliance is placed. Petitioner although could establish from the record that the approach of the State in not being inclined to fill up remaining to posts does not commensurate with the guidelines of AICTE, he may not succeed in getting writ of mandamus issued as the post he held was to be filled by the regularly selected candidate.
As a parting note, it is essential to mention that in one of the affidavits-in-reply, the respondent – State has mentioned that in the event of any requirement of teaching staff on these two remaining posts [contractually to be filled] which are lying vacant, they shall be calling the visiting faculties. It is expected that the State shall on correct interpretation of AICTE norms and the resolution dated 6th February 2015 shall attempt to fill up these contractual posts and the petitioner, if chooses to apply for the same, his candidature shall be considered on its own merit.
Writ petition stands disposed of. Notice discharged with no order as to costs.
{Ms. Sonia Gokani, J.} Prakash*