BHARTIBEN NANUBHAI BALSARA v. STATE — 1988 DIGILAW 145 (GUJ)

P. M. CHAUHAN, J. ( 1 ) HAS a person appointed to a post without following the recruitment Rules prescribed for appointment or de hors the recruitment Rules for appointment a right to hold the post ? Can such an appointee prevent the selected candidate in accordance with Rules from being appointed to the post ? Has the regularly selected candidate appointed to the post right to continue in post vice the irregularly appointed person in case of retrenchment ? These are the moot questions for consideration in this group of writ petitions filed by rival contenders under Art. 226 of the Constitution of India. ( 2 ) THE main contenders in this group of writ petitions are the clerks clerks-cum-typists and typists who are appointed irregularly and de hors the provisions or the Rules by the Mamlatdar Deputy Collector Treasury Officer and certain other officers temporarily for the period of 29 days as the selected candidates under the Rules were not available. The other group of the petitioners are the candidates who are selected under the Gujarat Non-Secretariat Clerks Clerk-cum -Typist and Typist (Direct Recruitment Procedure) Rules 1970 and appointed as per provisions of the Gujarat Non-Secretariat Clerk and Clerk-typists Recruitment Rules 1970 The candidates who are appointed without following recruitment Rules as clerks will be referred for the purpose of convenience as the irregularly appointed clerks while the clerks who are appointed as per the selection list prepared under the recruitment Rules will be referred as the regularly appointed clerks. ( 3 ) PETITIONER Bhartiben Nanubhai Balsara of Special Civil Application No. 4932 of 1986 an irregularly appointed clerk was initially appointed as a clerk in the Treasury by District Treasury Officer temporarily for a period of 29 days or till selected candidates may be available whichever earlier on 31/03/1973 as selected candidates were not available and was subsequently appointed on same terms and conditions by various orders passed for the period of 29 days at intervals with break of some days upto 29/09/1986 As candidates selected as per recruitment Rules were available for appointment the petitioner was not likely to be appointed after tenure of 29 days was to expire on 29/09/1986 she filed Special Civil Application on 19/09/1986 and the Court by interim relief. directed not to terminate her service and since then she continued in service. . . . . . . . . . directed not to terminate her service and since then she continued in service. . . . . . . . . . . . . . . . . . . ( 4 ) DAULATBHAI Bhagubhai Patel and 18 others in Special Civil Application No. 2856 of 1987 were appointed as the clarks temporarily for the period of 29 days as the selected candidates under the Rules were not available. The specific orders were passed to the effect that as the candidates selected by the competent authority were not available they were appointed for the period of 29 days. Subsequently they were appointed by fresh orders for 29 days. It appears that during the scarcity in the year 1985 several posts of Deputy Mamlatdars were created for supply of grass from Valsad district to the scarcity areas and because of the promotion of the clerks as Deputy Mamlatdars some vacancies bad arisen and therefore by an order dated 20/12/1985 about 35 clerks were appointed and some of the petitioners were appointed as clerks. Subsequently their services were continued on same terms. On or about 28/12/1985 the public advertisement was issued inviting applications and the select list was prepared in September 1986. It appears that the Collector Valsad issued directive by letter dated September 25 1986 to relieve all the clerks appointed on such ad hoc basis for the period of 29 days as the candidates selected under the Rules were available and therefore the petitioners were relieved from the services in the month of September and October 1986 They then filed Special Civil Application on 1/05/1987 arid prayed for the interim relief. By an order dated 25/07/1987 the learned single Judge directed to reinstate them in service for the reasons recorded by the learned Judge. The learned Judge however directed for the reinstatement only for the limited period and purpose. It was observed by the learned Judge that if any posts were vacant in Valsad district the petitioners should be accommodated as per the Rules and Regulations and subject to the availability of the candidates through Gujarat Public Service Commission. It appears that the learned Judge referred the candidates selected by the Recruitment Committee under the provisions of the Gujarat Non-Secretariat Clerks Clerk-cum-typists and Typists (Direct Recruitment Procedure) Rules 1970 (to be referred as Clerk Recruitment Rules ). It appears that the learned Judge referred the candidates selected by the Recruitment Committee under the provisions of the Gujarat Non-Secretariat Clerks Clerk-cum-typists and Typists (Direct Recruitment Procedure) Rules 1970 (to be referred as Clerk Recruitment Rules ). As per the directive of the Court all the 19 petitioners were appointed by the orders dated 30/07/ 19/09/1987 /09/ 15 1987 and 13/10/1987 After the selected candidates were available services of 8 of them were terminated on 1/08/1988 We were told by Shri H. D. Vasawada learned Advocate for the petitioners that contempt applications were filed and the services of the rest of them are not terminated. ( 5 ) PETITIONER Dineshkumar Bhanabhai Patel and 23 others in Special Civil Application No. 4356 of 1987 were appointed initially for the period of 29 days as the candidates selected under the relevant clerks recruitment and appointment Rules were not available. They were subsequently appointed by various orders appointing them for the period of 29 days with breaks at certain intervals. Their services were terminated and were not given fresh appointment orders in September 1986 as the candidates selected by the Committee under the relevant clerks recruitment and appointment Rules were available. They had prayed for the interim relief but the Court did not grant interim relief. ( 6 ) AS the select list was prepared under the Rules by the Selection Committee in September 1986 the services of irregularly appointed clerks were terminated and the clerks selected by the Committee under the Rules were appointed. Sixty such clerks were appointed from September 198 6/01/1987. They took over the charge and after that because of the retrenchment policy some of them to be retrenched and therefore they filed Special Civil Applications Nos. 3710 of 1988 and 3855 of 1988. Their main contention is that they are regularly appointed clerks under the relevant provisions of the clerks recruitment and appointment Rules and they have right to hold the posts and they cannot be retrenched and the irregularly appointed clerks should vacate for them. They are protected by the order of this Court and therefore all of them but one are not retrenched from the services even though orders for retrenching from service for some of them were issued. We are informed by Mrs. They are protected by the order of this Court and therefore all of them but one are not retrenched from the services even though orders for retrenching from service for some of them were issued. We are informed by Mrs. K. A. Mehta Counsel for the petitioners that petitioner No 5-Shri Sitaram J. Jain of Special Civil Application No. 3710 of 1988 is retrenched from service as the interim order could not be served before he was relieved. ( 7 ) THE contention of the petitioners who are temporarily appointed for the period of 29 days as the selected candidates under Rules were not available is that they were appointed in service and they continued to serve and are qualified to be the competent clerks and therefore they have right to continue in the service and relieving them from the service would offend provisions of Arts. 14 16 and 21 of the Constitution of India. As such they have asserted their right to continue in service only because they were appointed at the initial stage and served for the period of more than one year at certain intervals. According to them the artificial breaks were given but in fact they continued to serve without the breaks. Many other contentions about their exploitation not granting equal wages etc. are raised by them. At the hearing of the petitions Shri Vasawada learned Advocate appearing for the petitioners could not point out any provision under which they have right to continue in service despite the fact that they were irregularly appointed de hors the provisions of the Rules. Shri Vasawada relied on certain judgments which we will consider at the later stage. We however observe that none of the judgments relied on by Shri Vasawada enunciate a principle of law that any irregularly appointed Government servant de hors the relevant recruitment and appointment Rules has right to continue in service. As against that it is contended by Shri G. D. Bhatt and Shri M. A. Bhukhari learned Assistant Government Pleaders and Mrs. K. A. Mehta learned Counsel appearing for the petitioners in Special Civil Applications Nos. 3710 of 1988 and 3855 of 1986 that the irregularly appointed clerks have no right to continue in service and the selected candidates have right to hold the post. K. A. Mehta learned Counsel appearing for the petitioners in Special Civil Applications Nos. 3710 of 1988 and 3855 of 1986 that the irregularly appointed clerks have no right to continue in service and the selected candidates have right to hold the post. ( 8 ) ON behalf of the respondents affidavits are filed by Shri S. A. Khambhati District Treasury Officer Shri P. H. Shah Resident Deputy Collector and Shri P. K. Kalal Principal Government Technical Centre Valsad. In their affidavits they have practically raised the similar contentions. Shri Shah has deposed in his affidavit that the petitioners were appointed on purely temporary basis as the junior clerks when regularly selected candidates under the relevant Rules were not available and they were appointed from time to time for the limited period of 29 days and on completion of the stipulated period they were relieved. The petitioners were never regularly selected ant appointed under the relevant Rules. They were appointed only because the respondents were not likely to get the services of regularly selected junior clerks. As the petitioners were appointed only for the limited period on completion of that period their services ended ipso facto and as the fresh orders were not issued they had no right to hold the post and continue in service. It is also stated by him that many of the petitioners were not eligible to be appointed as junior clerks as they were not regularly selected under the relevant recruitment Rules and they were appointed on the specific condition and understanding that they were being appointed only because regularly selected clerks were not available and will be discontinued even before stipulated period of appointment when regularly selected clerks will be available for appointment. He has also stated that many of the petitioners had applied for the post of typists and clerks but they were not found suitable and therefore they were not either called for the interview or were not selected. According to him as per the public advertisement certain candidates were regularly selected for appointment to the post of clerk clerk-cum-typist. Those candidates who had applied and wore found meritorious were given appointments but as the petitioners were not found meritorious enough to be selected to the post in question they were not appointed to the posts in question. Other contentions about exploitation denial of the right of equal pay etc. Those candidates who had applied and wore found meritorious were given appointments but as the petitioners were not found meritorious enough to be selected to the post in question they were not appointed to the posts in question. Other contentions about exploitation denial of the right of equal pay etc. are also controverted by him. Shri Khambhati and Shri Kalal have also stated same facts. ( 9 ) CLERKS and Clerk-cum-typists are required to be selected as pet the provisions of the Gujarat Non-Secretariat Clerks Clerk-cum-typists and Typists (Direct Recruitment Procedure) Rules 1970 enacted in exercise of the powers under proviso to Art. 309 of the Constitution of India. The appointment to the post of the clerks and clerks-typist (clerk; knowing typing) are to be made as per provisions of the Gujarat Non-Secretariat Clerk and Clerk-Typist Recruitment Rules 1970 enacted in exercise of powers conferred under proviso to Art. 309 Constitution of India. ( 10 ) IN the Gujarat Non-Secretariat Clerks Clerks-Typists and Typists (Direct Recruitment Procedure) Rules 1970 (to be referred as Recruitment Procedure Rules) the procedure is prescribed for inviting the applications and selection of the candidates for the said posts. The competent authority is prescribed under the Rules. As per the scheme every year the Government offices are required to send the requisition to the Collector of the District and the Convenor of the District Selection Committee which should reach the Collector before 1st May every year. After ascertaining the anticipated requirements the Convenor of the District Selection Committee and Collector has to advertise the vacancies for the posts of clerk clerk-cum-typist and typist in the first week of July every year. The offices in which the vacancies are to be filled in are required to be indicated in the advertisement. The eligibility test is prescribed and the marks for the interview and typing test are fixed under the Rules. It is specifically provided in the Rules that the selection of the candidate for appointment to the post of clerk shall be on the basis of (a) the percentage of the marks secured at the Secondary School Certificate examination or examination equivalent to 3 it and (b) the percentage of marks secured at the interview. It is specifically provided in the Rules that the selection of the candidate for appointment to the post of clerk shall be on the basis of (a) the percentage of the marks secured at the Secondary School Certificate examination or examination equivalent to 3 it and (b) the percentage of marks secured at the interview. As prescribed in Rules the selection of candidates for the appointment to the post of clerks-typists shall be on the basis of (a) the percentage of the marks secured at the Secondary School Certificate examination or examination equivalent to it (b) the percentage of marks secured at the interview and (c) the percentage of marks secured at the typing test and the selection of the candidates for the appointment of the post of typist shall exclusively be on the basis of the percentage of marks secured at the typing test. After the interview the Convenor of the Departmental Selection Committee and Collector should declare the result of the interview and/or typing test by arranging the names of the candidates in the order of preference. The District Selection Committee consists of the Collector District Superintendent of Police District Education Inspector the Backward Class Welfare Officer (Panchayats) and Executive Engineer (Road and Building ). ( 11 ) FOR the appointment to the post of clerks and clerks-typists (clerks knowing typing) the Gujarat Non-Secretariat Clerk and Clerk typists Recruitment Rules 1970 are enacted by the Governor of Gujarat in exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India. The appointment to the post of clerks and clerk typists is required to be made by direct selection according to the Rules framed by the Government in that behalf and by promotion from among the members of Class IV service of proved merit and efficiency etc. Rules provided for the eligibility for the appointment by direct selection of the candidates and for promotion of members of Class 1v service. The candidates required by district selection are required to undergo the training and are also required to pass the post training examination before the appointment to the post of clerk or clerk-typists according to the Rules made by the Government in that behalf. They are required to be appointed on probation for the period of one year. The candidates required by district selection are required to undergo the training and are also required to pass the post training examination before the appointment to the post of clerk or clerk-typists according to the Rules made by the Government in that behalf. They are required to be appointed on probation for the period of one year. For the appointment to the post of English typist the Gujarat Non Secretariat English Typists Recruitment Rules 1970 are enacted and the eligibility test is laid down in the said Rules. ( 12 ) FOR the purpose of selection according to the Rules the public advertisement dated 28/12/1985 was issued in the news papers and applications were invited. The number of vacancies of clerk clerk-cum-Gujarati typist and clerk-cum-English typist and the number of vacancies to be filed in by the candidates belonging to scheduled castes scheduled tribes socially and economically backward classes physically handicapped and ex-service men were specified in public advertisement. The requisite qualifications for the said posts pay scale and other details were also given in it. It was finally stated that the select list based on merits will be published. It transpires that on the basis of the said public notice the applications were received and after the interview the select list was prepared in September 1986. Shri P. H. Shah Resident Deputy Collector has stated in his affidavit that some of the petitioners who had applied were not either called for the interview or were not selected on merits. It is clear from the selection process that not only the equal opportunity was sought to be given to the eligible candidates but the required reservation for backward classes was also sought to be maintained. ( 13 ) THE object purpose and intent of the statutory recruitment and appointment Rules enacted in exercise of powers under Art. 309 Constitution of India is (1) to afford equal opportunity for public employment or appointment to the eligible similarly situated competing persons (2) to draw the best available elements out of the competing candidates (3) to reserve post for scheduled castes scheduled tribes socially and economically backward classes physically handicapped and ex-service men and (4) to provide impartial selection by the Selection Committee consisting of certain district heads of the departments. An employment or appointment to the public service de hors or in violation of the recruitment or appointment Rules will not only offend Arts. 14 and 16 of the Constitution of India but also frustrate the very purpose of enacting the Rules leading to frustration and disappointment to eligible meritorious youths. Such a practice is illegal irregular and deserves to be discouraged and prevented. The statutory Rules are required to be followed scrupulously for the purpose of selection of candidates and for appointments. Any appointment to any post de hors the Rules or without being selected as per statutory Rules should be held as irregular and invalid. ( 14 ) ARTICLES 14 and 16 of the Constitution of India guarantee the fundamental right of equality before law and equality of opportunity for all citizens in all matters relating to employment or appointment to any office under the State. Article 16 is only an incident of the general concept of equality enshrined in Art. 14 in the matters of appointment and employment to the public office. Equality guaranteed by Art. 16 is of the opportunity to apply for the appointment to the post under the State and to be considered on merits. Any employment or appointment to the public office under the State will offend guarantee of equal opportunity if the appointment or employment is made in violation of the provisions of Arts. 14 and 16 of the Constitution of India. Admittedly in the instant case the irregularly appointed clerks clerks-typists were appointed in violation of the recruitment and appointment Rules and by that the equal opportunity to other similarly situated candidates was denied. That did offend fundamental right of eligible deserving candidates guaranteed in Arts. 14 and 16 of the Constitution of India. Irregularly appointed petitioners therefore cannot assert right to hold the post or continue in service merely because they are initially appointed for certain period or on ad hoc basis as the exigency of the services required them to be appointed for a particular period. They have therefore no right to hold the post or continue in the service. Shri Vasawada learned Advocate appearing for the petitioners submits that the fundamental right enshrined in Arts. 14 and 16 of the Constitution of India is violated as the irregularly appointed clerks-typists are sought-to be removed from service even though they have served for some time. They have therefore no right to hold the post or continue in the service. Shri Vasawada learned Advocate appearing for the petitioners submits that the fundamental right enshrined in Arts. 14 and 16 of the Constitution of India is violated as the irregularly appointed clerks-typists are sought-to be removed from service even though they have served for some time. That submission us Shri Vasawada cannot be accepted as merely by serving for some time on ad hoc basis the petitioner do not get any fundamental right. Merely because their ad hoc appointments were not continued by fresh orders or services being terminated as they were appointed for limited period 81 ad hoc arrangement as candidates selected under Rules were not available and as such candidates are now available for appointment and are appointed it cannot be accepted that the provisions of Arts. 14 and 16 are violated and therefore the termination orders should he set aside. Article 16 is not applicable to the termination of the services of such ad hoc employees. Admittedly the petitioners were appointed for a particular period with the clear understanding that they will have to vacate when regularly selected candidates will be available. their appointment therefore was ad hoc. The dictionary meaning of sad hoc in Websters New International Dictionary is pertaining to or for the sake of this case alone. In the Random House Dictionary the meaning is for this special purpose with respect to this subject or thing. The Full Bench of Punjab and Haryana High Court in S. K. Verma and Ors. v. State of Punjab and Ors. AIR 1979 P. and H. 149 considered the case of such employee and observed that Art. 14 or 16 are attracted only when equals are treated unequally or to put it ill reverse equals are treated equally. The ad hoc employees cannot claim any hostile discrimination qua some unspecified persons who are not even parties to the petition and who in some eventuality may later come to hold the posts which they are being asked to vacate. An ad hoc employee with an existing service record cannot be deemed in the eye of law as identically equivalent to an aspirant for the post which he is likely to vacate. Article 16 could not even remotedly be invoked. An ad hoc employee with an existing service record cannot be deemed in the eye of law as identically equivalent to an aspirant for the post which he is likely to vacate. Article 16 could not even remotedly be invoked. The appointment of the irregularly appointed petitioners cannot be continued for indefinite period as they were not appointed under the provisions of the Rules. They should therefore vacate for the regularly selected candidates under the Rules by the competent authority. ( 15 ) THIS Court had occasions to consider such cases wherein dispute was between the employees who were irregularly appointed by the heads of the departments vis-a-vis the employees subsequently selected by the competent authorities as such irregularly appointed employees assorted right to continue in service. The Division Bench of this Court in Special Civil Application No. 5993 of 1986 in the one of us (A. M. Ahmadi J.) was a parry had the occasion to consider the case of irregularly appointed Assistant Engineers who were appointed by the Irrigation Department without being selected by the Gujarat Public Service Commission as the said posts were within the purview of selection by the Gujarat Public Service Commission under Art. 320 of the Constitution of India. Subsequently the Public Service Commission held the interview and selected some of them. Certain Assistant Engineers raised similar dispute and asserted their right to continue and hold the posts as they were appointed and served the department for certain period. Their contention was repelled observing that it was only because of want of G. P. S. C. selected candidates that purely temporary and ad hoc appointments were permitted till regularly selected candidates became available. Now that the G. P. S. C. selected candidates are available the sd hoc appointees are being asked to make room for them. To direct their continuance in service would not only he in violation of the term contained in paragraph 4 of the letter of appointment but would also amount to breach of the requirements of Art. 320 of the Constitution. No Court of law can permit such infraction. The ratio of the judgment is that such irregularly appointed employees in violation of the Recruitment Rules or selection by the competent authorities have no right to continue in service nor they can be protected by the Court of law. No Court of law can permit such infraction. The ratio of the judgment is that such irregularly appointed employees in violation of the Recruitment Rules or selection by the competent authorities have no right to continue in service nor they can be protected by the Court of law. Similar point came for consideration before M. B Shah J. in Patel Evelin Ranchhodbhai v. The Gujarat Ayurved University 1987 (2) GLH 461 : [ 1987 (2) GLR 1299 In that matter the midwife was appointed in the Hospital of the Gujarat Ayurved University on temporary basis even though not found fit by the Selection Committee and was above the prescribed age limit. The Rules provided for the appointment by following the procedure. It was in terms held that where the recruitment Rules provide for the selection the appointment should be made and the post should be filed in by the candidate selected by the Selection Committee by following the proper procedure and the employee who is appointed purely on ad hoc basis without following the proper procedure cannot get a right to be appointed permanently on the said post. If it is accepted that the irregularly appointed employee has right to continue on the same post in violation of the recruitment Rules the recruitment Rules shall become nugatory or otiose and the department can favour any person or appoint any persons without following the procedure which would lead to arbitrariness. In similar other case in Vithalbhai Babaldas Patel v. Oil and Natural Gas Commission and Ors. 1987 (2) GLH 439 : [ 1987 (2) GLR 1308 ] the same view is expressed. In that matter it was not disputed that recruitment of employees for the specified posts in O. N. G. C. were regulated by the regulations of 1980. Some of the employees were appointed for specific period as contingent work charged unskilled labourers. It was held in terms that if employment or appointment of temporary or ad hoc appointee is regularised merely because of their temporary appointment it would deny equality of opportunity to other qualified persons. Some of the employees were appointed for specific period as contingent work charged unskilled labourers. It was held in terms that if employment or appointment of temporary or ad hoc appointee is regularised merely because of their temporary appointment it would deny equality of opportunity to other qualified persons. The learned Judge drew support from judgment of the Division Bench of this High Court in Special Civil Application No. 3932 of 1984 Yet in another judgment in Special Civil Application No. 4385 4386 and 4387 of 1987 (Ghelabhai Popatbhai Tarpara v. Agricultural Produce Market Committee Kalavad reported in 1988 (2) GLR 1425 ) by the single Judge of this High Court delivered on 28/04/1988 similar view is expressed. The petitioners in those matters were the gate clerks working with the Marketing Committee and were appointed on ad hoc and temporary basis and their services terminated as the appointments to the post were to be made out of the selectees selected in accordance with the provisions of the recruitment Rules. Considering various judgments on the point the contention of the petitioners to continue and to hold posts was turned down by the learned Judge. The Letters Patent Appeals Nos. 212 of 1988 213 of 1988 and 214 of 1988 preferred against the judgment were also summarily dismissed by the Division Bench on 18/07/1988 The view of this High Court so far as such irregularly appointed employees are concerned is consistent that they have no right to continue in the service and hold posts and should make room for the regularly selected candidates. ( 16 ) SHRI Vasawada learned Advocate for the petitioners refers certain judgments of the Supreme Court and of High Courts but none of them is relevant for the point at issue nor the ratio of the judgments is applicable to the points for our consideration. As the learned Advocate has relied on the said judgments we will refer them. In Narender Chadha and Ors. v. Union of India AIR 1986 SC 638 the point for consideration was continuing the promotees in the posts of promotion as they had held posts for the period of about 15 to 20 years. As the learned Advocate has relied on the said judgments we will refer them. In Narender Chadha and Ors. v. Union of India AIR 1986 SC 638 the point for consideration was continuing the promotees in the posts of promotion as they had held posts for the period of about 15 to 20 years. In the course of argument it was urged by the other side that the petitioners were not appointed in accordance with the relevant Rules and therefore could not be treated as the members of the Indian Economic Service or of the Indian Statistical Service at all and therefore there was no question of determining the question of seniority as between the petitioners and the direct recruits. That argument was rejected observing that even the petitioners were not promoted by following the actual procedure prescribed under the Rules but the fact remained that they were working in the post included in Grade IV from the date on which they were appointed to the said post and were appointed by competent authority were continuously holding posts and were not asked to go back to posts from which they were promoted at any time since the date of their appointment and were allowed to function in higher posts for fifteen to twenty years. Their Lordships made legal position clear by observing. But we however make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to the post he should be treated as person regularly appointed to that post such a person may be reverted from that post. In Dhirendra Chamoli and Anr. v. State of U. P. 1986 (1) SCC 637 the point for consideration was equal pay for equal work. That judgment is therefore not relevant for the purpose of the instant case. In Ratanlal and Ors. v. State of Haryana and Ors. AIR 1987 SC 478 the paint for consideration was to whether it was open to the State Government to appoint teachers on ad hoc basis at the commencement of the academic year and terminate their services before the commencement of next summer vacation or earlier and to appoint them again on ad hoc basis at the commencement of the next academic year. Supreme Court observed that the ad hoc teachers were unnecessarily subjected to an arbitrary hiring and firing policy of ad hocism followed by the state Government for a long period and that has true led 10 the breach of Arts. 14 and 16 of the Constitution of India and such a situation should not be permitted to last longer. Supreme Court however directed the State Government to take immediate stops to fill up in accordance with the relevant Rules the vacancies in which teachers were working on ad hoc basis and to allow those teachers who were holding the post on ad hoc basis to remain in those posts till the vacancies were duly filled up. These observations if considered minutely are rather against the petitioners. The direction of the Supreme Court that the teachers should be allowed-to be continued in the post till the vacancies are duly filled up by regularly appointed teachers means that such teachers had no right to hold the post permanently. Shri Vasawada also referred the judgment in U. P. Income-tax Department Contingent Paid Staff Welfare Association v. Union of India AIR 1988 SC 517 . In that case many of Class IV employees of the income-tax Department were employed on daily wages for nearly about 8 years or more. Their complaint was that even though they were rendering service as Class IV employees in Income-tax Department for such a long period the Department had not taken steps to regularise their services to absorb them as members of Class IV service and they were paid wages as daily rated labourers. They had therefore prayed for the same salary and allowances paid to the employees of the department. The Supreme Court refering the observations in P and T Department v. Union of India AIR 1987 SC 2342 directed the respondents to pay wages to the workmen who were employed as contingent paid staff of the Income-tax Department doing the work of Class IV employees at the rates equivalent to minimum pay in the pay scale of regularly employed workers. The ratio of the judgment is not applicable to the facts of the instant case or; for point for consideration before us. The judgment in Dineshkumar Himatlal Nimavat v. State of Gujarat and Anr. The ratio of the judgment is not applicable to the facts of the instant case or; for point for consideration before us. The judgment in Dineshkumar Himatlal Nimavat v. State of Gujarat and Anr. 1987 (2) GLH 135 : [ 1987 (2) GLR 1146 ] relied on by Shri Vasawada is not much relevant for the purpose of the point for consideration. The service of the petitioner appointed on ad hoc basis for the period of 28 or 29 days were sought to be terminated and therefore he filed a suit and the trial Court restrained the respondent but the appeal was allowed holding that the services of the petitioner were already terminated. The learned single Judge held on facts that the services were not terminated and therefore the respondent should have been restrained from terminating the services. Deciding the matter on facts the learned Judge deprecated the practice of appointing on ad hoc basis for the period of 28 or 29 days. It is true that the learned Judge has condemned in strong words any such practice however that would not help the present petitioners as the point at issue for our consideration is not the same. In that the learned Judge referred the judgments in Mariamben Amirbhai and Ors. v. State of Gujarat and Ors. [1985 (2)] 26 GLR 946. In that judgment also the practice of giving appointment for the period of 28 or 29 days is deprecated. Shri Vasawada learned Advocate for the petitioners strongly relied on Premchand and Ors. v. State of Himachal Pradesh and Anr. 1988 Lab. and Ind. C. 1094 in which the petitioners were the daily rated employees and were required to work as daily rated employees for the period of about 7 to 10 years It was held that such a practice was not in conformity with the concept of justice and fair play and it amounts to unfair labour practice and violates the doctrine of equal work under Sec. 25 (ra) of the Industrial Disputes Act. The practice of giving artificial or fictional brakes at the interval of 90 days or any other regular interval was also deprecated by the Court and the Government was directed to discontinue such a practice. The practice of giving artificial or fictional brakes at the interval of 90 days or any other regular interval was also deprecated by the Court and the Government was directed to discontinue such a practice. In the penultimate paragraph the direction was given to the Government to review the case and place on record of the case a fresh decision arrived at in accordance with the law. The judgment in Markandrai Chandulal Vyas v. Union of India and Ors. Special Civil Application No. 4576 of 1984 decided by the Division Bench consisting of the Chief Justice and S. B. Majmudar J. on 5/08/1985 in which the facts were that the petitioner was appointed as a clerk under Director of Small Industries Service Institute Ahmedabad in the year 1976 and subsequently was promoted as Upper Division Clerk and his services were terminated on 8/08/1984 is referred by Shri Vasawada. The appointment was without routing the application through the Employment Exchange. The Rules provided for the relaxation of age and such procedure. As the petitioner was appointed for such a long period and was promoted as an Upper Division Clerk it was held that by conduct they must be deemed to have relaxed the said requirement of age and procedure of routing through the Employment Exchange. That decision therefore is not applicable to the facts and the point for consideration before us. ( 17 ) EVEN though the averments are made in the petitions to the effect that the petitioners had put in more than 240 days in service before their termination it was made clear by Shri Vasawada that he did not want us to go into the question regarding the application of the provisions of Industrial Disputes Act since the petitioners would approach the appropriate forum under the said statute by seeking a reference if so required No other points were argued before us by Shri Vasawada. ( 18 ) A note of caution is necessary. Time and again this Court has deprecated the practice of such irregular appointments de hors the Rules and on ad hoc basis but without desired effect. By such practice the Government is unnecessarily entangled in avoidable litigation it generates hope in irregularly appointed young persons for time being for ultimately being disappointed and by the time it may be too late for them to settle in another occupation. By such practice the Government is unnecessarily entangled in avoidable litigation it generates hope in irregularly appointed young persons for time being for ultimately being disappointed and by the time it may be too late for them to settle in another occupation. It also encourages favouritism and may lead to unfair practice. Such back door entries should therefore be strictly prohibited. Government therefore is expected to take policy decision and prohibit such appointments de hors the recruitment Rules. To avoid such a situation the selection list should be prepared right in time. It may happen that in some unforeseen circumstances selected candidates may not be available and immediate appointments may be necessary. In such circumstances the provisions of Rule 32 of the Clerk Recruitment Rules may be resorted to which provides that the Secretary to the Government General Administration Department shall be the co-ordinating and supervising authority for administration of the Rules and he is competent to allot candidates included in the Select List/waiting List of one Department Selection Committee/district Selection Committee to the posts under the jurisdiction of any other Departmental Selection Committee/district Selection Committee. It also provides that such candidates shall be deemed to have been duly selected by the Departmental Selection Committee or the District Selection Committee under whose jurisdiction they are allotted. If the selected candidates are appointed under the provisions of Rule 32 practical difficulty experienced by the concerned departments can be easily solved. ( 19 ) MRS. K. A. Mehta learned Counsel appearing for the petitioners in Special Civil Application No. 3710 of 1988 submits that some of the petitioners of that petition were served with the retrenchment notice with a view to accommodating the irregularly appointed clerks who are directed to be reinstated by the order of this Court referred above and this Court granted the interim relief not to terminate the services of the petitioners however before the order could be served the services of petitioner No. 5-Sitarambhai Jivanbhai Jain were terminated as 10 per cent of the posts were retrenched for the purpose of accommodating the irregularly appointed clerks. Mrs. Mehta therefore submits that the Court should direct the reinstatement of petitioner No. 5 Sitarambhai Jivanbhai Jain. In view of our observations the irregularly appointed clerks have no right tn continue in services and therefore we vacate the interim relief granted in favour of some of the irregularly appointed clerks. Mrs. Mehta therefore submits that the Court should direct the reinstatement of petitioner No. 5 Sitarambhai Jivanbhai Jain. In view of our observations the irregularly appointed clerks have no right tn continue in services and therefore we vacate the interim relief granted in favour of some of the irregularly appointed clerks. The vacancy therefore will be created for accommodating petitioner No. 5-Sitarambhai J. Jain as well as for the petitioners in Special Civil Applications Nos. 3710 of 1988 and 3855 of 1988 who are threatend with the notice of retrenchment. Petitioner No. 5-Sitarambhai Jivanbhai Jain of Special Civil Application No. 3710 of 1988 therefore should be reinstated in the post to which he was appointed with Continuity of service. However he will not be entitled to the monetary benefits. ( 20 ) IN view of the above Special Civil Applications Nos. 4932 of 1986 497 of 1987 1976 of 1987 2866 of 1987 4356 of 1987 5054 of 1987 5880 of 1987 and 5587 of 1987 are dismissed. Rule discharged. Interim relief granted in Special Civil Application No. 4932 of 1986 2866 of 1987 and in favour of the petitioners Nos. 6 and 7 in Special Civil Application No. 5054 of 1987 is vacated. Special Civil Application No. 4057 of 1987 is dismissed. Notice discharged. The petitioners in Special Civil Applications Nos. 4932 of 1986 2866 of 1987 and 5054 of 1987 who are at present in service under the interim orders passed by this Court should be allowed to be continued and status quo should be maintained for the period of four weeks to enable them to approach the Supreme Court. Special Civil Applications Nos. 3710 of 1988 and 3855 of 1988 are allowed and the respondents are directed to continue the petitioners in service as the clerks and to reinstate Petitioner No. 5 Sitarambhai Jivanbhai Jain of Special Civil Application No. 3710 of 1988 Rule is made absolute. Parties to bear their own costs. (REST of the Judgment is not material for the Reports.)ORDER accordingly. .