JUDGMENT
1. Petitioners are Gate Clerks working with respondent No. 1 Committee, who were appointed ad hoc and temporary basis. Their services terminated since the appointment on the post is to be made in accordance with the provisions Recruitment Rules. Petitioners challenge the order of termination and in substance claim “Deny entry to all others who may stand in queue seeking entry through regular gate and protect our occupation of the seat which we have occupied without going through selection process”. Can such a claim be entertained in a petition under Art. 226 of the Constitution of India ? Shorn of all verbosity and legal niceties, this in short is the question to be examined in these petitions.
1/A. As common questions of law and facts arise, at the request of and with the consent of the parties, all the three petitions are being disposed of by common judgment and order.
2. Each of the petitioners has been appointed as Gate Clerk on ad hoc basis by respondent No. 1-Agricultural Produce Market Committee. Kalavad (hereinafter referred to as “the Committee”). Sometime in the year 1981-82 there was audit objection pointing out that respondent No. 1-Committee should have adopted the procedure for Gate Pass. Hence respondent No. 1-Committee made proposal for increasing its sanctioned establishment and recommended that four posts of Gate Clerks be created and two posts of Watchman be created. Pending the approval of the proposal by the Director of Agricultural Marketing and Rural Finance, Gandhinagar (respondent No. 2 herein), the Committee made appointments of Gate Clerks purely on ad hoc and temporary basis and that too for a period of 29 days. The relevant orders are produced at Annexures “G/1”, “G/2”, and “G/3” and they are dated : July 12, 1983, March 22, 1984 and December 15, 1983. Respondent No. 2-the Director of Agricultural Marketing and Rural Finance, Gandhinagar (hereinafter referred to as “the Director”) sanctioned the proposal for increasing the staff by his letter dated : June 17, 1986 (Annexure ‘H’). In this letter it has been clearly mentioned that the appointment should be in accordance with Rules and Regulations and for the previous appointments made by the Committee if anything unlawful is found, the responsibility will be that of the Committee. However, the Committee resolved by passing Resolution dated : July 18, 1987 to make each of the petitioners permanent. This was done after taking legal advice. Respondent No. 3 herein has filed a suit in Civil Court and has challenged this Resolution. Respondent No. 2-the Director informed the Chairman of the Committee by his letter dated : August 11, 1987 that the appointments should be in accordance with Regulations rules framed and sanctioned under by-law No. 60. It was further informed that the recruitment will be considered lawful only if the same is made in accordance with the Rules and Regulations and it was stated that the recruitment made in haphazard manner shall be considered irregular and unlawful. Therefore, the employees who might have been recruited in that manner and in excess of the sanctioned staff would be required to be relieved immediately. In the letter it was specifically mentioned that if any liability arises on that count the members of the Committee shall be responsible for the same.
3. Thereafter, the Committee passed Resolution in its meeting held on August 26, 1987 and decided to terminate the services of the petitioners. Notice of termination of service dated : August 29, 1987 has been served upon each of the petitioners. The petitioners have challenged the legality and validity of the Resolution terminating their services and have also challenged the legality and validity of the notice, both of which are produced at Annexure “A” and Annexure “B” respectively. (Annexures referred to herein are of Special C.A. No. 4385 of 1987. However, it is stated at the Bar that Annexures produce in all the petitions are almost identical and there is no substantial difference in factual position).
4. Respondent No. 3 has been permitted to be joined as party respondent as per order passed below in Civil Application No. 1799 of 1987 in Spl. C.A. No. 4385 of 1987. Similar orders have been passed in different C.As. filed in two other petitions also. On behalf of respondent No. 3 the learned Counsel submitted that he had filed a Civil Suit in the Court of Civil Judge (J.D.) Kalavad and challenged the legality and validity of Resolution dated : July 18, 1987 by which the petitioners were sought to be made permanent. It is submitted that when the petitioners filed these petitions in this High Court the petitioners were aware about the aforesaid suit. Moreover, respondent No. 3 had also filed a Caveat application in this High Court and the same was served upon the petitioners and yet respondent No. 3 has not been joined in the petition. Moreover, without mentioning anything about the Civil Suit pending in the Court of Civil Judge (J.D.) Kalavad, petitioners have obtained interim relief. Thus according to respondent No. 3, Petitioners have suppressed material and important facts and, therefore, the petitions should be rejected on this ground alone.
5. The learned Counsel for the petitioners submits that no reference whatsoever to the aforesaid suit has been made in the petition because the suit was against the Resolution dated : July 18, 1987 passed by respondent No. 1-Committee. By this Resolution services of petitioners were regularized and they were made permanent, while in this petition legality and validity of Resolution dated : August 26, 1987 is challenged by which the services of the petitioners are sought to be terminated. By the aforesaid explanation justification is sought to be advanced for not mentioning the fact regarding the pendency of the Civil Suit. The explanation given by the learned Counsel for the petitioners clearly indicates that the petitioners were aware of the factum of the suit having been filed and the same being pending. The contention that the suit is not on the same subject matter and it is in respect of different Resolution and, therefore, it was not necessary to mention it in the petition cannot be accepted. It is nothing but a deliberate distortion of the facts. In both the proceedings subject matter is similar, if not identically same. At any rate the subject matter of the petition and the subject matter of the suit are inter-connected with each other. In the suit legality and validity of Resolution making the petitioners permanent is that they have been made permanent of that they have become permanent. Therefore, by no stretch of reasoning it can be said that facts and circumstances regarding the Civil Suit filed against the petitions in the Court of Civil Judge (J.D.) Kalavad are not relevant and material for the purposes of decision of these petitions. The explanation rendered by the learned Counsel for the petitioners, to say the least, is hyper-technical. Very probably had the petitioners disclosed these facts in the petitions before the High Court, the Court might not have exercised its power of granting interim relief. The petitioners are guilty of suppression of material facts and they have deliberately distorted the facts by making material suppression as regards the pendency of the suit in Civil Court.
6. In this view of the matter it would not be proper for this Court to exercise its power under Art. 226 of the Constitution of India and extend the protection of high prerogative writs to the petitioners. Not only the petitioners have abused the process of the Court, they have taken interim relief by making deliberate distortion of facts and by suppressing important relevant material. Such situation was found in Spl. C.A. No. 2641 of 1986 which has been decided by me on March 28, 1988. For the aforesaid reasons and for the reasons stated in aforesaid Spl. C.A. No. 2641 of 1986 petitioners are not entitled to be heard on merits. Therefore, all the petitions are required to be rejected on this ground alone. Moreover, petitioners are liable for Contempt of Court also. Despite this position, pragmatic considerations compel me to refrain from initiating contempt proceedings and for the same reasons, I deal with the contentions raised by the petitioners on merits.
7. Learned Counsel for the petitioners submits that after the Resolution dated : July 18, 1987 regularizing the services of the petitioners has been passed by respondent No. 1-Committee their services cannot be terminated. In his submission, even otherwise, since the petitioners continued in service for a pretty long time since December 1983 onwards, their services cannot be terminated by the Committee. In support of the aforesaid submission the learned Counsel for the petitioners has relied upon the following decisions :
(1) (1988-I-LLJ-370) (Daily Rated Casual Labour v. Union of India & Others).
(3) (AIR) 1988 SC 519, (Delhi Municipal Karmchari Ekta Union v. P. L. Singh & Others).
(4) Unreported decision of Supreme Court in Writ Petitioners Nos, 822, 875, 180 and 200 of 1987 decided on September 24, 1987.
(5) Ghanshyam M. Pandya v. State of Gujarat, 1985 GLH (UJ-51) 41.
8. None of the aforesaid decisions help the petitioners. In the case of Daily Rated Casual Labour (supra) the question before the Supreme Court was with regard to the unfair and improper manner and method adopted by the P & T Department with respect to the conditions of casual labourers. In that case no question arose as regards the propriety and validity of an order of termination of service passed in respect of a temporary employee, who claimed to have achieved permanent status and who was initially appointed otherwise than in accordance with law and who had entered in the services through back door. The learned Courses for the petitioner has relied upon the observations of the Supreme Court made in Para 9 of the aforesaid judgment. By making the aforesaid observations the Supreme Court directed me respondents therein to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers, who have been continuously working for more than one year in the P & T Department. On the basis of the aforesaid observations it is submitted that the petitioners’ services should be regularised and if respondent No. 1-Committee has regularized the same no exception whatsoever could have been taken by the Director respondent No. 2 herein.
9. The contention cannot be accepted for the simple reason that the Supreme Court has made the aforesaid observation in respect of numerous helpless casual labour, who were being exploited by a Central Government Department. These workmen were serving with the Government Department for large number of years. There was no question of their initial recruitment being unlawful. They were being paid at different rates of wages. Even for the casual labourers three different rates of wages were in vogue. In this background the Supreme Court observed that the Government as a model employer should not have adopted such methods. In the last paragraph of the judgment the Supreme Court made the aforesaid observation for regularizing the services of the workmen. Even while making the observation the Supreme Court has qualified the same by inserting the phrases ‘on a rational basis’ and ‘as far as possible.’ The Supreme Court has not laid down the principle that even in case of initial irregular and unlawful recruitment and even when it is found that the initial recruitment was not in accordance with law, the same should be regularized by a decree or order of the court. Therefore, the reliance placed on this judgment is of no help to the petitioners.
10. The other two decisions of Supreme Court reported in (1988-I-LLJ-396) (U.P. Income-tax Department Contingent Paid Staff Welfare Association v. Union of India & Others) and (AIR) 1988 SC 519 (Delhi Municipal Karmachari Ekta Union V. P. L. Singh & Other) are on the lines of its earlier decision in the case of Daily Rated Casual Labour (supra). Hence for the reasons stated herein above these two decisions are also of no help to the petitioners.
11. The learned Counsel for the petitioners relied upon an unreported decision of the Supreme Court in Writ Petitions No. 822, 875, 180 and 200 of 1987. The very first paragraph of the judgment, which is important, is reproduced :
“After hearing learned Counsel for the parties at great length, having regard to the peculiar facts and circumstances of these cases we pass the following order in the above writ petitions.”
Thereafter, the Supreme Court directed the Government to regularize the services of certain Assistant Divisional Medical officers, who were initially appointed on ad hoc basis. By these directions the Supreme Court has changed the manner and method of evaluation to be made by Union Public Service Commission. Instead of passing of the regular examination by the exployees concerned, the Supreme Court indicated the way in which their competency and suitability should be adjudged. The Supreme Court did not say that though the initial appointment of employees concerned was otherwise than in accordance with law the same should be regularized. No such principle of universal applicability has been laid down in this decision. In fact this decision has applicability to the peculiar facts and circumstances of that case only.
12. Reliance is also placed on the decision of this Court reported in Ghanshyam M. Pandya v. State of Gujarat (supra). In that case the services of the petitioner was sought to be terminated by invoking the device of artificial breaks. There were as many as 32 appointment orders for shorter durations. In the context of the facts of the case this Court, (Coram : R. C. Mankad, J.) observed that the petitioner had almost acquired the status of a temporary Government Servant. Therefore, his services could not have been terminated by oral order. That is not the case in these petitions. Here there is no oral order of termination of service and there is no question of invoking artificial device for purposes or putting an end to the services of the petitioners. In the case before the High Court there was no question of initial irregular appointments and no question arose as to whether such initial irregular appointments should be regularized and the services of such appointees could be terminated or not.
13. The learned Counsel for respondent No. 3 has drawn my attention to a decision of this High Court, (Coram : M. B. Shah, J.) reported in Patel Evelin Ranchhodbhai v. Gujarat Ayurved University) (1988-I-LLJ-447). In that case an employee of Gujarat Ayurved University, who was appointed as midwife, had prayed that she should be treated as permanent employee, as she had continued in service since the year 1985 except for artificial breaks. In that case, petitioner relied on the decision of this High Court, (Coram : R. C. Manked, J.) reported in 1985 GLH (UJ-51) 41. Distinguishing the decision in Para 6 of the judgment it is observed as follows at pp. 449 – 450 :
“In may view, the ratio laid down in that case 1985 GLH (UJ-51) 41 would have no bearing in this case. Once there are Recruitment Rules which provide for appointment to a particular post by following the Recruitment Rules, any appointment in violation of the said Rules would be an illegal and arbitrary one. May be that till the vacancies are filled in by regular appointees, the authority may appoint some persons on ad hoc basis, but these appointees would not get any right to be permanent servants.”
I agree with the reasons given by M. B. Shah, J. for distinguishing the judgment rendered by R. C. Mankad, J. reported in Ghanshyam’s case 1985 GLH (UJ-51) 41. For the same reasons the judgment rendered by R. C. Mankad, J. is of no help to the petitioners.
14. Since the learned Counsel for the petitioners relied upon certain decisions of the Supreme Court and this High Court, it would be proper at this stage to refer to a Full Bench decision of this Court reported in 1983 (1) 24(1) GLR 1 (Calico Mills v. Union of India) wherein guidelines have been given as regards the correct manner of reading and understanding the decisions of the Supreme Court. In para 5 of the judgment it is observed as follows :
“It is not everything said by the Supreme Court in its judgment which is binding as law declared by the Supreme Court. What is considered binding to all the Courts is the ratio decidendi of the decision which is to be gathered from the statements of principles of law applicable to the legal problems disclosed by the facts of the case decided by the Supreme Court.”
15. After referring to a decision of the Supreme Court in the case of Dalbir Singh v. State of Punjab. (AIR) 1979 SC 1384, wherein well settled theory of precedents has been explained, and after referring to other decisions of the Supreme Court, the Full Bench has further observed :
“It is, therefore, evident that the decision of the Supreme Court is only an authority for what is actually decided and the observations made in the judgment should be restricted to the context in which they are made after relating the observations to the precise issue before the Court taking care to interpret the observations in the context of the question before the Court even though the same are expressed in broad terms.”
16. The same principle is reiterated by the Supreme Court in the case of Ambica Quarry Works etc. v. State of Gujarat & Ors. (AIR) 1987 SC 1073. After referring to a decision of the House of Lords in the case of Quinn v. Leathem. 1901 AC 495, in para 18 of the judgment the Supreme Court has observed that the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
17. In view of the aforesaid principles laid down by the Supreme Court itself, the various decisions referred to by the learned Counsel for the petitioners have got to be restricted to the context in which they are made and have got to be understood in their proper context. As stated above, none of the decisions relied upon by the learned Counsel for the petitioners is of any help to the petitioners.
18. It is submitted that once the Committee passed Resolution dated : July 18, 1987 regularizing the services of the petitioner and making them permanent their services could not be terminated. That argument cannot be accepted. When the Committee passed Resolution dated : July 18, 1987 it was obvious that the Committee was not doing something which was permissible. In fact the petitioners as well as the respondent-Committee were aware of the fact that initial appointment was purely temporary and on ad hoc basis. When the initial appointment was made there was no regular vacancy. It appears from initial appointment orders produced at Annexures “G/1”, “G/2” and “G/3” that applications from other candidates by giving public advertisement were not invited. In view of the contents of the letter of approval dated : June 17, 1986 written by the Director-respondent No. 2 herein it was not at all necessary for the Committee to seek legal opinion. In the aforesaid letter it is clearly stated that the appointments shall be made in accordance with the Rules and Regulations and for any appointment formerly made by the Committee, if found unlawful, liability will be that of the Committee. The Committee very well knew that the initial appointment was not in accordance with the Recruitment Rules. Initial appointments were not made even by inviting applications from all the members of the public. It was probably a closely guarded secret affair. Services of employees recruited on temporary basis are not required to be regularized in all cases. Moreover, when it is shown that initial appointment was for a temporary period and there were genuine reasons for appointment for shorter durations on account of exigencies of the situation, and when it is shown that in the circumstances then prevailing procedures for appointment on regular basis could not be followed, such appointments are not required to be regularized. An employee cannot claim any right to become permanent in cases where it is shown that appointment is not made as and by way of device to avoid the provisions of labour legislations or other provisions of law. Even when it is shown that the intermittent appointments of shorter durations are made as and by way of law, it should also be shown that there was vacancy on regular establishment end despite the vacancy on regular establishment the device of temporary employment and artificial break was resorted to by the employer concerned with a view to deny the permanency benefits to the employee.
19. The aforesaid discussion clearly shows that for claiming benefits of permanent status in service, two things are necessary to be established. It should be shown that the employer adopted a device of invoking artificial breaks with a view to avoid and/or evade the provisions of law. It should also be shown that there were vacancies in the regular establishment and for not giving appointment on regular establishment the aforesaid device was invoked by the employer. If the aforesaid two factors are established an employee may successfully claim that he cannot be deprived of the permanency benefits. Such a claim may be defeated by showing that, for genuine and valid reasons temporary appointment was given and if benefits of permanency are conferred on the employee, that would result into injustice to others, whose claims are not considered at all.
20. In the instant case either of the aforesaid two conditions are not present. It is an admitted fact that upto June 17, 1986 there were no posts of Gate Clerks on regular establishment of respondent No. 1-Committee. For the first time the Director-respondent No. 2 herein sanctioned the posts of Gate Clerks by his letter dated : June 17, 1986. Therein also it was specifically provided that appointments to the post should be in accordance with Rules and Regulations and for any appointment made otherwise than in accordance with Rules and Regulations, the Committee shall be liable. In this view of the matter, only after June 17, 1986 the question of appointment on regular vacancy could have arisen. In fact it is conceded by learned Counsel appearing for respondent No. 1-Committee that the appointment of the petitioners was not in accordance with Recruitment Rules. The relevant Recruitment Rules (Rule 2(a)(3) provides that the Committee shall give public advertisement in cases where the recruitment of officers and other workmen is to be made. In the instant case no such advertisement has been given and no applications were invited. Thus it is obvious that it is a case of entry through rear gate. The petitioners were “fortunate” in getting initial appointment on intermittent basis without there being any scrutiny of selection process. The allegations of mala fides and nepotism have been made by respondent No. 3 in the applications submitted by him for being joined as a party. In the facts and circumstances of the case and particularly in view of the factual discussion and legal position enunciated hereinabove, it is not necessary to go into the allegations of mala fides. The fact remains that the appointments of the petitioners were on ad hoc basis and the same was not against any regular vacancy. There was no post on regular establishment of Gate Clerks at the relevant time. Simply because the petitioners served on temporary and ad hoc basis for some time they cannot claim that after the posts have been sanctioned they have right to continue on the posts, and that they need not be subjected to the rigorous selection process.
21. The Director-respondent No. 2 herein was justified in giving instructions to the respondent No 1-Committee. This he could have done in view of the provisions of Section 47 of the Act which, inter alia, provides for giving certain directions in respect of the actions taken or to be taken by the Committee. It may be assumed that the instructions given by the Director by his letter dated : August 11, 1987 are not strictly within the scope of his power. Even so respondent No. 1-Committee has not done anything wrong when it terminated the services of the petitions. When right thing is done on account of the instructions received from someone who has power to give such instructions or that particular thing is done on account of the instructions having been received from someone who had no power to give such instructions, makes no deference whatsoever. The question is whether the action taken by Committee is right or wrong. The Committee has not done anything wrong when it has terminated the services of the petitioners, who were not appointed in accordance with Recruitment Rules.
22. In view of the fact stated hereinabove it can never be said that the petitioners could have claimed permanency benefits for the post in question. The Resolution passed by the Committee could not have bestowed any permanency benefits on the petitioners because the Committee has no power to make such permanent appointment otherwise than in accordance with Rules and Regulations. When the Committee has realized its mistake (or having been made to realize that its device to circumvent the provisions of law would not work) it has passed the Resolution terminating the services of the petitioners. The termination of services of the petitioners is neither by way of penalty nor in any way unjust or arbitrary. On the contrary continuation of the petitioners in services and conferring the permanency benefits on them would amount to denial of justice to many others who are clamouring for employment and who are waiting in queue. Simply because the petitioners could get in through back door entry they cannot say that now those who are waiting to get entry through the regular door be denied their right to be considered because they (i.e. petitioners) have been able to get their seat through back door. To do so would amount to perpetuating injustice by exercising power under Art. 226 of the Constitution of India. For such purposes the powers under Art. 226 of the Constitution of India cannot be exercised.
23. The learned Counsel for respondent No. 1-Committee states that the Committee had acted in accordance with the opinion of the District Government Pleader. In fact it was not at all necessary for the Committee to obtain any opinion in view of the clarification by Director-respondent No. 2 in his letter dated : June 17, 1986. Therein it is specifically mentioned that the appointments shall be made in accordance with the Recruitment Rules. Even the learned Counsel for the Committee has conceded that the appointment of the petitioners was not in accordance with the Rules and Regulations. Therefore, there was no reason whatsoever for the Committee to refer the matter to District Government Pleader for his opinion. There is some substance in the allegation of collusion between petitioner and respondent No. 1-Committee. In the background of the facts it is evident that the Committee obtained the opinion as a part of its device to cover up something, which was otherwise irregular and arbitrary. The Committee did so with a view to save its skin and to use the same as a shield for their defence in case question adjudging its liability arose. The opinion of the learned Advocate rendered to the Committee, to say the least, is irrelevant and of no importance whatsoever. It is hoped that law officers appointed by the State Government would be little more careful while rendering such opinion and it would be better if they refrain from showing their status as Government Pleader while rendering such opinion to private persons and to the bodies for whom they are not supposed to work in their capacity as Govt. law officer.
24. The learned Counsel for the petitioners submits that the petitioners ought to have been offered an opportunity of being heard before passing the order of termination. The order of termination of service is not passed by way of penalty nor the same can be termed unreasonable or arbitrary. Similarly it is not actuated by mala fides. It is not even contended that the impugned ordered is penal in nature or that it is unjust and arbitrary. The sole basis of the petitioner is that they have become permanent. But as discussed hereinabove the petitioners have not acquired any permanent status. Therefore, the petitioners’ services could have been brought to an end by passing an order of termination simpliciter and that is what has been done by respondent No. 1-Committee. Therefore, the contention that the petitioners ought to have been offered an opportunity of being heard has no merit and the same requires to be rejected.
25. No other contention is raised. There is no substance in the petitions. Hence all the three petitions are hereby rejected summarily.
26. At this stage the learned Conceal for his petitioners requests that ad interim relief grants earlier be continued for some time so as to enable the petitioners to approach the superior forum as it may be available to them for challenging the legality and validity of the aforesaid order,. In the facts and circumstances of the case, request in granted. Ad interim relief granted earlier shall continue till June 15, 1988.