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LPA/2986/10 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2986 of 2010
In
LETTERS
PATENT APPEAL No. 2986 of 2010
In
CIVIL
APPLICATION No. 10773 of 2009
With
CIVIL
APPLICATION No. 16568 of 2010
In
LETTERS
PATENT APPEAL No. 3056 of 2010
With
LETTERS
PATENT APPEAL No. 3082 of 2010
In
CIVIL
APPLICATION No. 10773 of 2009
With
CIVIL
APPLICATION No. 17145 of 2010
In
LETTERS
PATENT APPEAL No. 3093 of 2010
With
CIVIL
APPLICATION No. 6732 of 2011
In
SPECIAL
CIVIL APPLICATION No. 15828 of 2010
With
CIVIL
APPLICATION No. 16778 of 2010
In
LETTERS
PATENT APPEAL No. 3062 of 2010
With
CIVIL
APPLICATION No. 17143 of 2010
In
LETTERS
PATENT APPEAL No. 3092 of 2010
With
SPECIAL
CIVIL APPLICATION No. 5797 of 2009
With
LETTERS
PATENT APPEAL No. 3062 of 2010
In
SPECIAL
CIVIL APPLICATION No. 14644 of 2010
With
SPECIAL
CIVIL APPLICATION No. 8848 of 2009
With
CIVIL
APPLICATION No. 7699 of 2010
In
SPECIAL
CIVIL APPLICATION No. 5797 of 2009
With
CIVIL
APPLICATION No. 6524 of 2011
In
LETTERS
PATENT APPEAL No. 3082 of 2010
With
SPECIAL
CIVIL APPLICATION No. 1290 of 2011
With
LETTERS
PATENT APPEAL No. 3092 of 2010
In
CIVIL
APPLICATION No. 10773 of 2009
With
SPECIAL
CIVIL APPLICATION No. 5774 of 2009
With
CIVIL
APPLICATION No. 3724 of 2011
In
LETTERS
PATENT APPEAL (STAMP NUMBER) No. 125 of 2011
With
SPECIAL
CIVIL APPLICATION No. 15828 of 2010
With
SPECIAL
CIVIL APPLICATION No. 16034 of 2010
With
SPECIAL
CIVIL APPLICATION No. 1988 of 2011
With
LETTERS
PATENT APPEAL No. 3056 of 2010
In
SPECIAL
CIVIL APPLICATION No. 14654 of 2010
With
LETTERS
PATENT APPEAL No. 3093 of 2010
In
CIVIL
APPLICATION No. 10773 of 2009
With
SPECIAL
CIVIL APPLICATION No. 15661 of 2010
With
CIVIL
APPLICATION No. 6596 of 2011
In
LETTERS
PATENT APPEAL No. 2986 of 2010
With
SPECIAL
CIVIL APPLICATION No. 16031 of 2010
With
SPECIAL
CIVIL APPLICATION No. 392 of 2011
=========================================================
HIREN
N UPADHAYA & 12 - Appellant(s)
Versus
BHAVIK
M PATEL & 11 - Respondent(s)
=========================================================
Appearance :
MR
DC DAVE for Appellant(s) : 1 - 13.
MRPAJADEJA for Respondent(s) :
1,
MR PK JANI, GOVT. PLEADER with MR. PRANAV DAVE, ASST. GOVT.
PLEADER in SCA 15661/10, 16031/10, 16034/10, CA 6732/11, LPA 3056/10,
3062/10, SCA 1988/11, LPA 3082/10, CA 16568/10 and 16778/10 AND MR PK
JANI, GOVT. PLEADER with MS. KRINA CALLA in LPA 2986/10, SCA 5787/09,
5774/09, 8848/09, LPA 3092/10, 3093/10, sca 392/11, 1290/11,
15828/10, CA 3724/11, 7699/10, 6569/11, 17143/10,
17145/10, 6524/11 for Respondent(s) : 2 - 10.
MR HJ NANAVATI for
Respondent(s) : 3,
NOTICE SERVED BY DS for Respondent(s) : 11,
MR
DG SHUKLA for Respondent(s) : 11,
None for Respondent(s) :
12,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 07/09/2011
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
matters pertain to appointment to the post of Lecturers in Government
Engineering Colleges and Government Polytechnics.
The
appellants/petitioners were appointed as adhoc Lecturers in
Government Engineering Colleges and Government Polytechnics over a
period of time from the year 1991 to 2002. These appointments were
initially made for 11 months with a rider that even prior thereto,
their services are liable to be terminated when regularly selected
candidates through the process of selection by the Gujarat Public
Service Commission [for short, GPSC] were available. However, as
appointment of regularly selected candidates through the process of
selection by GPSC were not made, the Lecturers appointed on adhoc
basis were allowed to continue by extension of their adhoc
appointment, whereby their adhoc appointment continued over a period
ranging from 8 years to 20 years.
In
May/June 2009, services of various Lecturers appointed on adhoc basis
came to be terminated. Many such Lecturers preferred writ petitions
for continuation of their services till regular selection is made.
Learned Single Judge, by judgment and order dated 30.06.2009 disposed
of the writ petitions except two, viz. Special Civil Applications No.
5797 of 2009 and 5774 of 2009, directing the respondents to terminate
the services of adhoc Lecturers and fill up the posts on regular
basis.
In
this background, LPAs have been preferred. The two writ petitions
which were not disposed of by the learned Single as stated above and
other writ petitions which were filed in the meantime, were all
ordered to be heard together, and they are being disposed of by this
common order.
In
October 2009, a Civil Application being Civil Application No. 13093
of 2009 was filed on behalf of the State in the pending writ
petitions wherein two folded reliefs were sought for, viz:
[i]. Extension
of time for completing the process of section through GPSC, and,
[ii]. Permission
to fill up sanctioned posts by adhoc lecturers till GPSC selected
candidates were available.
Learned
Single Judge allowed to continue the adhoc arrangement upto 31st
December 2010 and ordered to complete the process through GPSC.
Subsequently, time was sought for by the State Government and GPSC,
as large number of posts were required to be filled up.
The
cases were taken up on 24th March 2011. The matter was
discussed. It was noticed that more than 2000 posts of Lecturers
were vacant in various Government Engineering Colleges and Government
Polytechnics. The State Government had taken steps for filling up
the posts and the matter was pending with GPSC.
It
was brought to the notice of the Court that in the absence of
lecturers, students were suffering in various Government Colleges and
Polytechnics. In this background, after hearing the parties, the
following order was passed by this Court on 24th March
2011:-
“The
Appeal has been preferred against the judgment and order dated 8th
October 2009 passed by the learned Single Judge in Civil Application
No.10773/2009 in Special Civil Application No.5797/2009. By the said
order the judgment and order dated 30th June 2009 passed
by the learned Single Judge in Special Civil Application No.5797/2009
and cognate matters were further modified. The State Government was
permitted to fill up 908 posts of Lecturers in various Government
Engineering Colleges and Polytechnic Institutions for which the
department had already undertaken the process for regular
appointment. The Court directed that appointment of 908 Lecturers of
Engineering Colleges and Polytechnics, who were appointed on
adhoc/contractual basis and whose services were extended earlier by
way of one time measure as a special case, they should not be allowed
to continue after 31st December 2010.
Pursuant
to the said order, services of number of adhoc Lecturers have already
been terminated, who have preferred writ petitions and pending
consideration. The writ petitions wherein interim direction was
issued, two of such writ petitions have been kept pending by the
learned Single Judge. It is stated that the learned Single Judge is
monitoring the cases to ensure that all adhoc Lecturers are removed
to accommodate the regular appointees.
The
case was heard in detail and it came to the notice of the Court that
even after appointment of regular appointees, a large number of
teaching posts are lying vacant in different Degree and Diploma
Engineering Colleges. In absence of teaching staff, the students of
Degree and Diploma Engineering Colleges will suffer.
For
the said reasons, this Court, vide order dated 18th
February 2011 passed in Civil Application – For Stay
No.1987/2011, directed the respondent – State to provide the
details of number of posts as was occupied by adhoc teachers as on
1st December 2010 (subject wise), number of regular
vacancy as on 1st December 2010 (subject wise), including
the posts occupied by adhoc teachers, number of persons appointed on
regular vacancies out of the last panel since 1st December
2008 (subject wise), number of vacancies of different posts (subject
wise) as on 18th February 2011, the time by which the
G.P.S.C. will finalise the common merit list and to obtain
instructions whether any scheme can be framed by State Government to
accommodate the adhoc teachers against the remaining vacancies.
Pursuant
to the Courts’ order, an affidavit has been filed on behalf of the
State from its Technical Education Department showing the details of
vacancies, etc.
It is
informed that the State is facing difficulty in the appointment of
Lecturers in Technical Colleges on account of recent amendment in the
Recruitment Rules, 2009. As per the said Rules, for the posts of
Lecturer in Engineering or Technology Faculty, for the first time a
post-graduate degree with first class in the concerned branch of
engineering or a bachelor’s degree with first class in the concerned
branch of engineering has been prescribed with valid GATE score.
Further there is a requirement of score of 75 percentile.
As on
date, the information of posts of Lecturers in Government Engineering
Colleges and Government Polytechnics reflects total 3614 number of
sanctioned posts against which 1114 persons have been regularly
appointed. Altogether, 812 adhoc employees/appointees are working at
present and 1688 posts of Lecturers are still lying vacant as on 18th
February 2011.
Learned
Government Pleader appearing on behalf of the State submitted that
there is no option, but in view of the impugned order passed by the
learned Single Judge, they have taken steps to remove the adhoc
Lecturers. It is accepted that if they are removed, there is no such
number of candidates at present in the merit list who can be
appointed against the vacancies including the vacancies as may be
caused due to termination of services of the adhoc Lecturers.
Mr.D.G.Shukla,
learned counsel appearing on behalf of the Gujarat Public Service
Commission submitted that for about 350 posts, interview has been
taken and the list of candidates will be forwarded.
Total
2096 posts were advertised or the post advertised but could not be
filled up because of non-availability of eligible candidates.
From
the stand taken by the parties and the record, it appears that out of
3614 sanctioned posts, steps were taken to fill-up about 2200 posts.
Still, there will be about 1400 number of sanctioned posts which will
remain vacant. If the adhoc Lecturers are removed immediately in view
of the order passed by the learned Single Judge, students of 16
Engineering Colleges (Degree level) and 26 Polytechnics (Diploma
level) will suffer, even if total posts are filled up as per present
advertisement.
In
view of the aforesaid position and taking into consideration the
interest of the students and the fact that the adhoc Lecturers are
continuing since 10 to 20 years, the following interim order is
passed for the present:-
The
order dated 8th October 2009 passed by the learned Single
Judge in Civil Application No.10773/2009 in Special Civil
Application No.5797/2009 is stayed.
The
respondents are directed to fill up all posts which are already
advertised, by regular appointment. We have noticed that a large
number of appointments have already been made but further
appointments are required to be made out of the recommendation as
will be made by GPSC.
On
such appointment of regular Lecturers, if so required, the adhoc
Lecturers may have to be shifted from particular Degree/Diploma
Engineering College to accommodate the regular appointees. In such
case, the authorities will accommodate adhoc Lecturers against some
other posts for which no such advertisement has been issued, may be
in some other equivalent Degree/Diploma Engineering College in any
district.
Till
the posts are filled up by regular appointment, the adhoc Lecturers
be not disturbed.
Those
adhoc Lecturers whose services have been terminated in view of the
order passed by the learned Single Judge, if there is no allegation
or departmental proceedings pending against them, they be
accommodated on adhoc basis in one or other equivalent standard
Degree/Diploma Engineering College in any of the district of the
State, against the posts which are not yet been advertised. If there
is no post to accommodate, in that case, their services may be
terminated.
We
make it clear that the adhoc Lecturers have no right to continue
against any particular post. They will have to make a room as and
when the posts will be filled up on regular basis.
Civil
Application stands disposed of with the aforesaid observation and
direction.
Post
the Appeal along with Special Civil Application Nos.5797/2009 and
5774/2009 on 27th April 2011.
Pendency
of this case shall not stand in the way of the State to frame any
scheme to relax the age and to select the qualified and experienced
adhoc Lecturers through any limited competitive examination.
Direct
service is permitted.”
Subsequently,
this Court monitored the matter.Some selections have been made by
GPSC and they were allowed to recommend names of successful
candidates to ensure that posts are filled up on regular basis.
Thus, certain selections have been made, names have been recommended
and appointments have been made, but all posts could not be filled
up. In this background, it was decided to allow GPSC to complete the
process in accordance with law to ensure that all posts are filled up
on regular basis.
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.
[S.J.
MUKHOPADHAYA, C.J]
[J.B.PARDIWALA,
J.]
mathew
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