IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.16998 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/-
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===================================================== PRIYANKA H PANDYA & 16 - Petitioner(s) Versus STATE OF GUJARAT THRO THE SECRETARY & 8-Respondent(s) ===================================================== Appearance :
MR PR NANAVATY for Petitioner(s) : 1 - 17.
MR RAKESH R PATEL, AGP for Respondent(s):1-2, 4-6 & 8 DS AFF.NOT FILED (N) for Respondent(s) : 3 MR HS MUNSHAW for Respondent(s) : 7, 9, ===================================================== CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 24/02/2012 CAV JUDGMENT
(1) By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
“(A) By issuing an appropriate writ, order or direction, Your Lordship may be pleased to quash and set aside the orders dated 9/5/2011, 10/5/2011, 3/8/2011 and 4/8/2011 terminating the services of the Petitioners and direct the concerned Respondent to reinstate the petitioners and treat their service as continuous service from their original date of appointments, as per the table annexed as Annexure-A, treating the petitioners as continuous from their original date of appointments, as if the petitioners have never been terminated and further be pleased to direct the concerned respondents to continue services of the petitioners at their present post until regularly selected GPSC candidates are made available and grant them all the service benefits as per the terms and conditions of their initial appointment letter.
(B) By issuing an appropriate writ, order or direction, Your Lordship may be pleased to direct the concerned respondent authority to restrain from replacing the present petitioners by appointing another set of ad-hoc medical officers.
(C) Pending hearing and final disposal of this Special Civil Application, Your Lordship may be pleased to issue necessary interim direction to the concerned respondents to reinstate the petitioners and treat the services of the petitioners as continuous from their original dates of appointment as per the table at Annexure-A, i.e. as per the appointment letters, and further be pleased to pass an appropriate interim injunction restraining the concerned respondents, their officers, servants and agents from terminating the services of the petitioners until regularly selected GPSC candidates are made available.
(D) Pending hearing and final disposal of this Special Civil Application, Your Lordship may be pleased to direct the concerned respondent authorities not to act pursuant to the advertisement inviting applications for appointment of fresh set of ad-hoc medical officers, published in the newspaper Gujarat Samachar dated 27/10/2011.
(E) An ex parte ad-interim relief in terms of Prayer (D) and above may be granted.
(F) Such other and further orders as may think it just & proper and in the interest of justice be granted.”
(2) The petitioners were appointed as Medical Officers (Grade-II) in the pay-scale of Rs.9300-34800 (Grade-pay Rs.5400) in different Government Ayurvedic Hospitals situated in the different villages in different districts of State of Gujarat. It appears from the record that the petitioners were appointed by Office Order dated 03.05.2010 on ad hoc basis initially for a period of six months with condition that their appointment would be for a period of six months or till the regularly selected GPSC candidates are made available, whichever is earlier.
(3) In pursuance to the said order, the petitioners took charge of their respective posts on different dates. It transpires that as aforesaid the petitioners were initially appointed only for a period of six months on ad hoc basis and vide Resolution dated 20.12.2010 the appointment of the petitioners came to be extended for a further period of six months on the same condition viz. on ad hoc basis for six months or till the regularly selected GPSC candidates are made available, whichever is earlier. Thereafter on expiry of the said period, vide order dated 10.05.2011, the services of the petitioners came to be terminated. It appears that on receipt of the order of termination, the petitioners filed representation dated 18.05.2011 to respondent No.2 and prayed that they may be re-appointed to their posts. It is the case of the petitioners that the said representation was not replied to and thereafter the respondent authorities published an advertisement in Gujarati daily Gujarat Samachar on 27.10.2011 inviting applications of the Medical Officers (Ayurved) Grade-II. Being aggrieved by the said advertisement and also inaction on the part of the respondent authorities in not deciding the representation of the petitioners dated 18.05.2011, the petitioners prefer the present petition.
(4) It is the case of the petitioners that they rendered their services in small and remote villages in the interior part of the State for a period of one year even though there were many inconveniences. It is the case of the petitioners that sizable percentage of ayurvedic hospitals are run by ad hoc medical officers like the petitioners and upon termination of their services the medical facilities have suffered seriously and because of sincere and hard work put up by the petitioners the outdoor patients had increased. It is the case of the petitioners that not only the petitioners are deprived of their means of livelihood but their termination has badly affected general health of public. It is further the case of the petitioners that there are barely any GPSC selected candidates available for the said posts and, therefore, the respondent authorities again issued a fresh advertisement for appointment of Medical Officers (Ayurved) Grade-II on ad hoc basis. It is further averred that the action of the respondent authorities in terminating the services of the petitioners are absolutely arbitrary, illegal, violative of Articles 14 & 16 of the Constitution of India and, therefore, the termination order is required to be quashed and set aside and the petitioners are required to be reinstated to their posts as Medical Officers (Grade-II) until the GPSC selected recruits are made available.
(5) On behalf of respondent No.1 affidavit-in-reply has been filed controverting the contentions raised by the petitioners.
(6) Heard Mr.P.R.Nanavaty, learned advocate for the petitioners, Mr.H.S.Munshaw, learned advocate for respondent No.7 and 9 and Mr.Rakesh R. Patel, learned Assistant Government Pleader for the rest of the respondents. Though respondent No.3 is served, no one appears. As no prayers are prayed for against respondent No.3, Mr.Nanavaty, learned advocate for the petitioners, seeks permission to delete respondent No.3. Accordingly, respondent No.3 stands deleted.
(7) Mr.Nanavaty, learned advocate for the petitioners, submitted that the respondents have not responded to the representation filed by the petitioners and by issuing fresh advertisement impugned in the present petition, an attempt is made by the respondent authorities to replace one batch of ad hoc by another batch of ad hoc. It was further submitted that the advertisement is issued only with a purpose to appoint in place of the petitioners. It was further submitted that when the statement was made the petitioners were in service and, therefore, the court may consider the case of the petitioners.
It was also submitted that Division Bench of this Court in the case of Hiren N. Upadhaya & Ors. Vs. Bhavik M. Patel & Ors. in Letters Patent Appeal No.2986 of 2010 and allied matters rendered on 07.09.2011 has held that till the GPSC selected candidates are available the petitioners should be continued on ad hoc basis. Therefore, it was submitted that the petition deserves to be accepted and allowed as prayed for. No further contentions are raised on behalf of learned advocate for the petitioners.
(8) Per contra, Mr.H.S.Munshaw, learned advocate for respondent No.7 and 9, submitted that initial appointment of the petitioners was only for a period of six months on a specific condition that they can be removed without notice. That the appointment was purely on ad hoc basis with specific stipulation that their appointment would be for a period of six months or till the GPSC selected candidates are made available, whichever is earlier. It was further submitted that only because the services of the petitioners were further extended for six months the petitioners have no right to continue on such ad hoc posts and that their term of appointment is already over and that the petitioners are no more in service. It was further submitted that even the Government has right to appoint ad hoc employees for a period of one year and such appointments are made as and when need arises. It was submitted that the petitioners, after completion of period of appointment, have no vested right to continue in the employment and the petitioners having accepted the term of the appointment cannot be permitted to raise grievance and the petitioners cannot be continued in service. It was therefore submitted that the petition is devoid of merits and the same deserves to be rejected.
(9) Mr.Rakesh R. Patel, learned Assistant Government Pleader on behalf of the respondent authorities, has relied upon affidavit-in-reply dated 01.12.2011 as well as affidavit-in-sur-rejoinder dated 18.01.2012 and has adopted the argument made by Mr.Munshaw, learned advocate for respondent Nos.7 and 9. It was further submitted that as per Resolution dated 14.10.1993 of the State of Gujarat, health as well as education fields are considered to be essential services and ad hoc appointments can be given in public interest, whenever need arises and considering the need for the same the present advertisement is given for 181 posts on ad hoc basis. It was further submitted that 13 out of 17 petitioners have applied in pursuance to the advertisement dated 27.10.2011. It was further submitted that vide communication dated 15.03.2010, 181 ad hoc posts of the Medical Officers (Ayurved) Class-II were sanctioned by the government, against which 157 ad hoc posts were filled in and such ad hoc appointees were relieved from the posts after completion of one year vide orders dated 09.05.2011, 10.05.2011, 03.08.2011 and 04.08.2011 as per Government Resolution 14.10.1993. It is further pointed out that during the period when the petitioners were working as ad hoc appointees, the GPSC could find regularly selected candidates for the said posts in question and, therefore, the present petitioners were relieved from ad hoc appointments as per condition of their appointment and as per Resolution dated 14.10.1993. It was pointed out that a requisition was sent by the State Government to GPSC for filling up the posts of Medical Officers (Ayurved) Class-II, however, the GPSC informed the State Government that the recruitment shall be undertaken after necessary amendment is made in the Recruitment Rules. The said suggestion made by the GPSC was considered by the Government and the earlier Recruitment Rules of 26.05.1982 have been amended and the said amended Rules are under process of necessary approval and sanction from the competent authority. It is stated that in order to see that in the interregnum the Ayurvedic Hospitals and Dispensaries throughout the State can function without any interruption and considering the fact that the medical services are being essential services conscious decision was taken to issue an advertisement for 181 posts of Medical Officers (Ayurved) Class-II on ad hoc basis and hence, the advertisement impugned in the present petition dated 27.10.2011 came to be issued for filling up 181 posts on same conditions.
(10) The petitioners have also filed affidavit-in- rejoinder wherein it is stated that as such the Government should come with a scheme as held by this Court in the case of Hiren N. Upadhaya & Ors. (supra). It is also averred by the petitioners that the principle of last come first go should be applicable in case of the petitioners and while reiterating the contentions raised in the petition the petitioners have contended in their affidavit- in-rejoinder that there is no justification in replacing the petitioners with batch of another ad hoc, as sought to be done vide the impugned advertisement dated 27.10.2011.
(11) Considering the rival contentions of the parties, it would be necessary to note that the petitioners were originally appointed on purely ad hoc basis as Medical Officers (Ayurved) Class-II for a period of six months or till the GPSC selected candidates are made available, whichever is earlier. It goes without saying that the petitioners were so appointed for a period of six months, as indicated above, and that too on the basis of Resolution dated 14.10.1993 of the State Government. It is also an admitted position that as there was still need of the petitioners as the GPSC selected candidates were not available, the case was examined by the State Government and by resolution dated 20.12.2010 the petitioners were again appointed on ad hoc basis for a further period of six months only. It is stipulated in the said resolution that such appointment would be for a period of six months on ad hoc basis or till the GPSC selected candidates are made available, whichever is earlier. It is also an admitted position that on completion of six months the services of the petitioners came to an end and accordingly the orders were passed on four different dates, as aforesaid. The basis on which the petitioners were appointed is Government Resolution dated 14.10.1993. By the said resolution a policy decision has been taken by the State Government as regards the condition upon which the appointment of ad hoc has been made. Clause-2(1)(c) of the said resolution clearly stipulates that health, education, etc. would be essential services in public interest. Clause-2(2) thereof provides that such ad hoc appointment should not be made without prior permission of the GPSC. In addition to these, by the said Government Resolution dated 14.10.1993 it is clearly provided that the Gujarat Public Service Commission Regulations, 1960 ('the Regulations 1960' for short) provides that the Government is authorized to make ad hoc appointments only for a period of one year. Considering the provisions of Government Resolution dated 14.10.1993 as well as the Regulations 1960, as above, the genesis of the appointment of petitioners as ad hoc Medical Officers (Ayurved) Class-II was made for the first time vide order dated 03.05.2010 and the powers of the State Government to make such ad hoc appointments, flows from Government Resolution dated 14.10.1993. Considering the provisions of the said Government Resolution such powers were exercised in the case of the petitioners and they were appointed for six months, which was subsequently extended for a further period of six months, as stated hereinabove. The State Government has contended that while the petitioners were working as ad hoc the GPSC could find regularly selected candidates for the posts in question. Hence, on both counts, the petitioners had no vested rights even on facts to continue for more than one year.
(12) It is an admitted position that the petitioners have been relieved along with 157 such ad hoc appointees after completion of one year vide orders dated 09.05.2011, 10.05.2011, 03.08.2011 and 04.08.2011.
(13) It bornes out from the record that the State Government has sent requisition to the GPSC to fill up all Medical Officers (Ayurved) Class-II and the said requisition is pending before the Commission. It is also reveals from the record that the GPSC suggested the Government to amend the Recruitment Rules of 1982 and accordingly the amendment of the Rules is under process and is pending for approval and sanction before the appropriate authorities. However, it was contended by the Government that pending the said process they are in need to manage the Ayurvedic Hospitals and Dispensaries throughout the State and, therefore, as per Government Resolution dated 14.10.1993, more particularly considering the fact that the medical service is part of essential service the aforesaid advertisement dated 27.10.2011 is issued for appointment of Medical Officers (Ayurved) Class-
II. The contention raised by the learned advocate for the petitioners that the State Government is attempting to replace one batch of ad hoc with another batch is incorrect. The State Government, as discussed above, on the basis of the provisions of Government Resolution dated 14.10.1993 as well as provisions of the Regulations 1960 can make ad hoc appointment only for a short period and the maximum limit prescribed under the said resolution is one year. The present petitioners, who were appointed as ad hoc employees can therefore, on the basis of the provisions of Government Resolution dated 14.10.1993 can even otherwise continue only for a period of one year in toto and while they were in service GPSC could select regular candidates for the posts in question. Though it is contended by the learned advocate for the petitioners that as per the selection process conducted by the Commission in the year 2008 hardly few candidates were available for regular appointments and that the petitioners were still continued on ad hoc basis would not create any inherent right to continue even after a period of one year. The medical service being an essential service and the State Government, after considering the need of whole State of Gujarat, in fact has made requisition to the Commission for undertaking regular recruitment process. The commission within its rights has suggested the Government to amend the Recruitment Rules, which was accepted by the Government and the same is at the stage of approval and sanction and, therefore, considering the need the State Government has again decided to fill up 181 posts on ad hoc basis would not ipso facto mean that one batch of ad hoc is to be replaced by another batch. It is admitted fact that the petitioners are no more in service and they have been relieved on different dates, as stated above, depending on their dates of joining initially. The fact, which is not denied by the respondent that 13 out 17 petitioners have already applied in pursuance to the advertisement dated 27.10.2011 impugned in the present petition, would go to show that the said advertisement cannot be termed an attempt on the part of the respondent authorities to replace one batch of ad hoc with another batch of ad hoc. The State Government, therefore, cannot be prevented from undertaking the process of ad hoc appointment as is done in the present case by advertisement dated 27.10.2011 as considering the circumstances that GPSC has recommended amendment in the Rules, which is already undertaken by the Government and, therefore, in order to meet with the necessity of the interregnum period the State Government is within its right to fill up posts which are required as an essential service for providing medical service to the public at large.
(14) Learned advocate for the petitioners has relied upon the judgment of this Court in the case of Hiren N. Upadhaya & Ors. (supra) wherein it is observed thus:
“ On merits, we do not find any justification to regularize any one or the other adhoc lecturers against regular posts for two reasons, viz:
[i]. They were not appointed after following the procedure for appointment.
[ii]. Their continuation in service for number of years do not cloth them with any right to regularization as they were appointed with open eyes that their appointments were adhoc in nature till regular appointments are made through GPSC.
We have noticed that many of the adhoc appointees have crossed the age limit and may not be eligible for consideration for appointment on regular basis and therefore, they could not take part in the recent selection. Having noticed such situation, we have already given liberty to the respondents to frame a scheme for them, if the State so intends.
We have also noticed that pursuant to the directions issued by this Court, GPSC has completed the process of selection and has already recommended names of 1007 candidates. However, even after such recommendation, 1106 posts are vacant for which again a fresh selection process should start after requisition by the State.
In the circumstances, we direct the State Government to take steps to fill up the remaining 1106 vacant posts, and any other vacancies that may have arisen, of lecturers in Government Engineering and polytechnic colleges. The State shall forward its requisition to GPSC on an early date. Till such regular appointments are made, the respondents shall continue the interim arrangement as ordered by this Court in its order dated 24th March 2011.
It is informed that names of some of the candidates are in the waiting list. If that be so, GPSC will forward the names of such candidates who are in the waiting list to fill up the vacancies, preferably within one month from the date of receipt of copy of this order.
In this background, we dispose of all the appeals, writ petitions and civil applications with the above observations and directions. There shall be no order as to costs.”
(15) However, in the instant case the petitioners have already been relived from their services and, therefore, on that count also, it cannot be said that by issuing advertisement impugned in the present petition dated 27.10.2011 the respondent authorities are trying to replace one batch of ad hoc by another batch.
(16) Similarly, reliance placed by the learned advocate for the petitioners on the order dated 20.01.2011 passed by this Court in case of Kamlesh Sharma and ors. Vs. State of Gujarat and others being Special Civil Application No.16783 of 2010 is, with respect, of no help to the petitioners. The said order is passed on the statement made by the learned Assistant Government Pleader on instructions from the concerned officer.
(17) The other limb of argument on behalf of the petitioners that his representation is not considered is also misconceived from the conduct of the petitioners itself whereby it has been brought on record that 13 out of 17 petitioners have applied in pursuance to the impugned advertisement, which establishes the fact that they have preferred to offer themselves to compete with other similarly situated candidates. Merely filing of representation does not create any vested right of being again appointed on ad hoc basis. Even if the case of Hiren N. Upadhaya & Ors. (supra) is considered the Division Bench of this Court has not come to the conclusion that once a person is appointed for a period of six months on condition, on which the petitioners were appointed, a right is created in favour of the petitioners to continue till regularly GPSC selected candidates are made available. On strict interpretation of Government Resolution dated 14.10.1993 on the contrary would be that the State Government has power to do so only for short period of one year in order to meet with the proximate need and on the contrary the same can be made with only by resorting to fresh advertisement, as is done in the present case. The petitioners, who were appointed as ad hoc Medical Officers (Ayurved) Class-II were not appointed by regular recruitment process but were appointed because of extreme need on particular condition that too for a fixed tenure, which does not create any vested right in favour of the petitioners. Similarly, only because some litigations were pending as regards regular recruitment process also would not take the case of the petitioners further and create any right in favour of the petitioners to be continued in service, as sought to be canvassed by the petitioners. In the instant case, as aforesaid, the services of the petitioners have already come to an end and the petitioners were relieved as per the stipulation of their appointments on completion of further period of six months, which was extended by resolution dated 24.12.2010. The case of 13 petitioners, who have already applied, shall be examined by the authorities in accordance with law.
(18) Resultantly, the petition is meritless and the same deserves to be rejected in limine and the same is hereby rejected. Notice discharged. No costs.
Bhavesh* *** Sd/- [R.M.CHHAYA, J ]