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LPA/2986/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2986 of 2010
In
CIVIL
APPLICATION No. 10773 of 2009
With
CIVIL
APPLICATION No. 15979 of 2010
In
LETTERS
PATENT APPEAL (ST. No.) No. 2658 of 2010
In
CIVIL
APPLICATION No.10773 of 2009
In
SPECIAL
CIVIL APPLICATION No.5797 of 2009
=========================================================
HIREN
N UPADHAYA & 12 - Appellant(s)
Versus
BHAVIK
M PATEL & 9 - Respondent(s)
=========================================================
Appearance
:
MR
DC DAVE for
Appellant(s) : 1 - 13.
MR PA JADEJA for Respondent(s) : 1,
MR
NJ SHAH ASSTT GOVERNMENT PLEADER for Respondent(s) : 2 -
10.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 23/12/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. In
main L.P.A. No.2986 of 2010, after consent of respondents to
condonation of delay and to the grant of leave to appeal, when the
appeal was posted for admission hearing, learned A.G.P. expressed
inability to assist the Court for want of necessary instructions.
Therefore, respondent No.3 was requested to remain personally present
and learned A.G.P. was requested to see that necessary instructions
were obtained in time and, if thought fit, request learned Advocate
General or learned Additional Advocate General to appear for the
State so as to render full assistance to the Court. Although the
appellants were not party to the original proceedings in SCA No.5797
of 2009 and allied matters or in Civil Application No.10773 of 2009,
they, in effect, seek reversal of the orders made therein as far as
they contain the direction to relieve and not continue such ad-hoc
lecturers as the appellants herein. In the other similar Civil
Application No.15979 of 2010 for leave to appeal preferred for
similar intervention, learned A.G.P. has refused to give consent for
grant of leave to appeal.
2. Record
of L.P.A. No.2986 of 2010 and Civil Application No.10773 of 2009
reveals that the original proceedings in SCA No.5797 of 2009 etc.
were initiated by temporary and ad-hoc lecturers with the clear
admission that they did not have any legal right to continue as
ad-hoc lecturers but, in view of persistent state of vacancies, they
were required to be continued in service rather than being replaced
by such other lecturers. While deciding that petition, learned single
Judge took note of earlier Division Bench judgment of this Court in
K.D.Vora v. Kamleshbhai Gobarbhai Patel [2003 (2) GLR 1343]
and the statements made on behalf of the State Government and the
G.P.S.C., and issued suitable directions with a time-bound programme
for filling up the vacancies in accordance with law.
3. For
the special reasons recorded in the order dated 30.06.2009 in SCA
No.5797 of 2009 etc., ad-hoc lecturers were allowed to continue as a
one-time measure till 30.04.2010 or till the candidates regularly
selected by GPSC were available, whichever was earlier. Thereafter,
the State Government made Civil Application No.10773 of 2009 in the
aforesaid SCA No.5797 of 2009 and, by a detailed order, the
time-limit was extended to 31.12.2010, again as a one-time measure
and as a special case with the special condition that 908 lecturers,
which the Government was permitted to appoint as temporary appointees
for eleven months, shall not claim any right in future. Copies of
that order, in view of the earlier directions and the necessity, were
directed to be sent to AICTE while GPSC was heard as a party.
Thereafter, a few orders are made in different proceedings resulting
into continuation of some lecturers in service on account of
concessions made by the State Government. But undisputably, the
appointments and continuation of lecturers in government engineering
colleges on ad-hoc or temporary basis is de hors the relevant
rules and orders of the Court. As held by Division Bench of this
Court in K.D.Vora (supra), such inaction on the part of officers
concerned and neglect in discharge of their duty of filling up the
posts in accordance with the relevant rules amounted to breach of
statutory duties, misfeasance or malfeasance resulting into
violation of fundamental rights of prospective candidates. It is
further observed therein:
15. ……
Deliberate and consistent failure on the part of the executive to
consult the P.S.C. in matters in which it is constitutionally obliged
to consult, notwithstanding the advice may not be binding on it,
would bring about a situation in which it would appear that the
governance of the State is not carried on in accordance with the
provisions of the Constitution, by one hand paralysing a
constitutional body like the P.S.C. from functioning and on the
other, short circulating (sic) the provisions which require
regulations under the proviso to clause (3) to Art. 320 to be framed
and to be laid before the Legislature which can modify them,
for deciding in which specified matters, consultation with the P.S.C.
is to be dispensed with……
21. Thus,
a very sad picture emerges. There has been a total callousness on the
part of the executive as well as the Gujarat Public Service
Commission which is a constitutional authority, in the discharge of
their important constitutional functions in the matter of making
appointments to the cadre of Lecturers, Gujarat Education Service
Class II (Collegiate Branch)…..
4. The
factual situation arising from the administration of government
engineering colleges is that, on the one hand capacity of admitting
students in various engineering colleges (degree and diploma
colleges) under the State Government has been consistently increased
with the approval of AICTE and, on the other hand, the strength of
teaching staff has been dwindling. As on today, out of the sanctioned
3634 posts of lecturers, there are only 1161 lecturers who are
regularly selected and appointed. As against that, total number of
vacant posts are 2292 and, if the impugned order were fully
implemented, 540 ad-hoc and 508 temporary lecturers will have to be
relieved by 31.12.2010. Thus, in short, while presently the
engineering colleges are run with less than 50% of the required
strength of teaching staff, the strength would be reduced to nearly
25%. It was admitted by Director of Technical Education himself that
such reduced strength was insufficient for running the colleges for
teaching purpose and the deficit in the strength of higher officers
such as principal of professors was far worse.
5. The
above situation has arisen in spite of very strong strictures and
directions issued by Division Bench of this Court in similar
circumstances in K.D.Vora (supra). Admittedly, the important
direction in that judgment is not reported to have been complied with
and the Government has merrily went on with appointing and continuing
ad-hoc and temporary lecturers de hors the recruitment rules.
At one stage, as noted in the impugned order, the GPSC was indirectly
blamed for not supplying the selected candidates in spite of various
requisitions made by the State Government in the year 2005, 2006 and
2008. While the State Government has exhausted its prayers for
extension and one-time special permission for continuing or
appointing ad-hoc or temporary lecturers, it was stated by learned
A.G.P. that now the GPSC has approached learned single Judge, by way
of MCA No.2597 of 2010, so as to claim more time for undertaking
necessary process of selection in accordance with the rules.
Remarkably, the GPSC or the AICTE are not made parties to the present
proceeding and, prima facie, the appellants and the State
Government appeared to have colluded for circumventing the directions
issued by the Court in the impugned order. Thus, in short, the State
Government and their officers concerned appeared to have consistently
and consciously acted in contempt of the orders and directions in
K.D.Vora (supra), in SCA No.5797 of 2009 and in the impugned order.
And, the victims of failure or misfeasance on the part of the State
Government, AICTE and GPSC may be students, numbering more than
82,000, whose education and future hangs in balance. On the other
hand, several petitions, being SCA Nos.2943/10, 3217/10, 3220/10,
3229/10, 3234/10 and 3373/10, are stated to have been filed and
admitted, which challenge the relevant recruitment rules for
appointment of lecturers. It is apparent from this mesh of
litigations that the forum of High Court is used or abused for the
purpose of perpetuating the apparently illegal activity of continuing
in service lecturers who have been appointed de hors the rules
and the blame is sought to be placed at the doors of GPSC which
itself is stated to have been suffering from acute shortage of
manpower.
6. In
the above facts and circumstances, obviously, different proceedings
in different courts, with or without all the necessary parties being
joined, is causing and likely to cause conflicting or inconsistent
decisions and the issues involved in all the litigations are likely
to affect thousands of students in engineering colleges, who may not
be parties in any of the proceedings. The matter calls for some
investigation of developments in the past and monitoring of the
progress in the future. Therefore, it appears to be necessary, in the
interest of justice and in the interest of administration, that all
the related matters and petitions are placed for hearing before one
bench and the present appeal is treated as a Public Interest
Litigation so as to join as respondent such important players as GPSC
and AICTE as also to obtain assistance of some institution or learned
advocate as amicus curiae.
7. Therefore,
the present appeal and the civil applications are ordered to be
placed before the Hon’ble Chief Justice for such order as may be
deemed proper in the above circumstances and for listing all the
aforesaid matters pending before the High Court before a particular
bench, if thought fit. In view of urgency and importance of the
matter, office may place this order before the Hon’ble Chief Justice
as early as practicable for earliest practicable listing of the
matters before appropriate Court as per the order of the Hon’ble
Chief Justice.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(J.C.Upadhyaya,J.)
(KMG
Thilake)
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