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1995 DIGILAW 266 (GUJ)

Mukesh B. Desai v. STATE

1995-06-13

B.N.KIRPAL, H.L.GOKHALE

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B. N. KIRPAL, C. J. ( 1 ) THE appellants are persons who, having failed to get selected for appointment as Lecturers pursuant to the selection having been made by the G. P. S. C. and even having failed to get on to the waiting list, still want to continue to serve as Lecturers merely because they had, at one time, been appointed as such on ad hoc basis. Not only this, the appellant are general category candidates and they want to continue as ad hoc lecturers against the reserved post. ( 2 ) BRIEFLY stated, the facts are that selection was to ,be made, according to the advertisement of the G. P. S. C. of 25 candidates belonging to the general category and 16 candidates belonging to the reserved category for appointment as Lecturers in the subject of Applied Mechanics. Though the Government had sent necessary requisition to the g. P. S. C. in respect of 41 candidates, the recommendation which it received was only with regard to 25 persons belonging to the general category. No recommendation was made for filling up any of the 16 posts, which were reserved category posts. According to the learned Single Judge, the total number of sanctioned posts were 72. Out of 31 Lecturers, who had been regularly selected prior to 1992, only 20 Lecturers belonging to the general category were discharging their duties. Thus, after necessary requisition had been forwarded to the G. P. S. C. in respect of 25 candidates belonging to the general category and 16 candidates belonging to reserved category, 11 more posts in the general category had fallen vacant. The G. P. S. C. , while recommending 25 candidates against the general category, also prepared a wait list of 14 selected candidates and the said list was also sent to the Government. ( 3 ) THE appellants had earlier been appointed in 1990-91 as Lecturers and as the notification appointing them specifically provided, their appointment was ". . . against vacant posts purely on temporary and ad hoc basis at the places shown against their names subject to the regularly selected candidates from G. P. S. C. or for eleven months whichsoever earlier in time. . . " As already noticed, none of the appellants got selected in 1992 for the general category post and none of them was in the waiting list upto to Serial no. 11. . . " As already noticed, none of the appellants got selected in 1992 for the general category post and none of them was in the waiting list upto to Serial no. 11. ( 4 ) WHEN the appellants were ordered to be discharged from service, they filed writ petitions, challenging the said action. In effect, the prayer in the writ petition was that because the selected candidates were not available for the reserved category posts, services of the appellants, who were working on ad hoc basis, should not be dispensed with. ( 5 ) THE learned single Judge, by a reasoned judgment, dismissed the writ petitions. It was held that the principle of "last come, first go", which was sought to be relied upon by the appellants, was not applicable and after referring to the judgment of the Supreme court in the case of State of Haryana and Ors. vs. Mahabir Prasad Sharma and Ors. , 1994 supp. (2) SCC 348, the learned Single Judge observed that the appellants, who were general category candidates, could not be considered for appointment against reserved quota seats and from the waiting list, appointment could be made to the general category posts. ( 6 ) IN Appeal, it is contended by the learned counsel for the appellant, while relying upon a judgment of a Single Judge of this Court in Special Civil Application No. 6,900 of 1994, dated 18th August, 1994, that the principle of "last come, first go", must apply and, therefore, the appellants could not be removed from service. ( 7 ) LITTLE assistance can be had by the appellants from the aforesaid judgment, dated 18th August, 1991. In that case, the appointments of the petitioners therein had been made on ad hoc basis subject to availability of regularly selected candidates by the Gujarat public Service Commission. The Court observed that till regularly selected candidates were available, the principle of "last come, first go" must be adopted while terminating the services. It was, however, made clear that the petitioners who were ad hoc appointees, had no right to the post and they could not be regularised against the same. ( 8 ) THERE is, in the present case, one essential difference from the aforesaid judgment of the learned Single Judge. It was, however, made clear that the petitioners who were ad hoc appointees, had no right to the post and they could not be regularised against the same. ( 8 ) THERE is, in the present case, one essential difference from the aforesaid judgment of the learned Single Judge. In the present case, the appointment order clearly stipulates that the ad hoc appointment of the appellants is till a candidate is regularly selected by the g. P. S. C. or for a period of 11 months, whichever is earlier. It is open to an appointing authority while making an appointment, to stipulate the period for which the appointment is made, if, as in the present case, the appointment is not made regularly in accordance with the Rules. By way of an ad hoc arrangement and in order to see that the posts of lecturers are manned, the respondents had made temporary ad hoc arrangements. Orders clearly stipulated that the ad hoc appointments so made where not to be for a period more than 11 months. This being so, no candidate who was so appointed, has any right to continue to remain as an ad hoc Lecturer beyond the period of 11 months. Assuming that he was allowed to continue even after the period of 11 months has expired, that would still not give any right to such an ad hoc appointee to ask for a writ of mandamus, which would, in effect, allow him to continue in service, even though his appointment would be contrary to his own appointment order. This is more so when we see that the posts which are being filled are which belong to the reserved category and the appellant belong to the general category. ( 9 ) ORDINARILY, the principle of "last Come, First Go" would apply in rases of retranchment. That is the basic principle of labour law. Where, however, in cases like the present, when Lecturers had been appointed pending regular selection and it is stated in the letter of appointment that if regularly selected candidates are not available, then the appointment will be only for a fixed period of 11 months, it will not be appropriate or legal for a Court to disregard the specific terms of the letter of appointment and allow a Lecturer to continue to remain in office. If the initial order of appointment, restricting the appointment for a period of 11 months is valid, and we have no doubt in our mind that it is so, then the Court cannot, at a later point of time, disregard the terms of appointment and allow a candidate to continue. This is precisely what the appellants want the Court to do but which is not permissible. At the risk of repetition, it is observed that it is open to an employer to make an ad hoc arrangement, by stating that the appointment will be till a regularly selected candidate is available or for a period of 11 months, whichever is earlier. Such a term in the order appointment of an ad hoc employee, who if not selected by the G. P. S. C. , which is required by the Rules, would be a valid clause and if this is so, it is not open to the selected candidate to contend that the Court should disregard the period of appointment for which he was appointed and to give a direction which would, in effect, allow him to continue to remain in office. This is more so in a case, like the present one where the appellants belong to a general category and. are occupying posts or claim to occupy posts, which are meant for a reserved category. ( 10 ) IT was then contended by the learned counsel for the appellants that the respondents will fill up these 16 reserved posts by making ad hoc appointments from other candidates, whose names are included in the waiting list, even though they are from general category. The submission in this regard is that as the appellants had been working for a longer period of time, they should be preferred and, therefore, appointments of new recruits should not be made. ( 11 ) WE find no merit in this. Firstly, as held in State of Haryana and Ors. vs. Mahahir prasad Sharma and Ors. , (supra), appointments can be made to fill up posts on ad hoc basis from the waiting list. Secondly in the present case, the appellants had appeared before the G. P. S. C. and they either did not figure in the waiting list at all or they are placed in waiting list at a lower position. , (supra), appointments can be made to fill up posts on ad hoc basis from the waiting list. Secondly in the present case, the appellants had appeared before the G. P. S. C. and they either did not figure in the waiting list at all or they are placed in waiting list at a lower position. The ad hoc appointments to the reserved posts are made from the waiting list on ad hoc basis according to merit. We see no reason why the respondents should not be allowed to do so. The appointments which are being made are those of Lecturers. The names of the persons in the waiting list have been arranged according to the order of merit. It is in the public interest that a more meritorious person should be appointed as an ad hoc Lecturer, in prefrence to an existing ad hoc lecturer, who is not as meritorious as the person to be appointed. The appellants have no right to remain in the ad hoc post, to which they were so appointed. Their merit was judged with the merit of the other candidate and when other candidates merit was found to be superior than that of the appellants, then it is in the public interest that more meritorious persons are appointed to man the posts. We, therefore, see no illegality or threatened illegality being committed by making appointments on ad hoc basis from waiting list according to merit. It is, however, clear that no general category candidate, who is appointed on ad hoc basis against a reserved post, can, however, claim to be regularised against, a reserved vacancy and such appointment can only be ad hoc and this clearly flows from the aforesaid judgment of the Supreme Court in Mahabir prasad Sharmas, case (supra), as also the judgment of the Constitution Bench of the supreme Court in the case of R. K. Sabharwal and Ors. vs. State of Punjab and Ors. , J. T. 1995 (2) SC 351. For the aforesaid reason, we find no merit in these Appeals and the same are dismissed. .