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2005 DIGILAW 98 (GUJ)

Dilip A. Shah v. STATE OF GUJARAT

2005-02-17

DEV KANT TRIVEDI

body2005
D. K. TRIVEDI, J. ( 1 ) THE petitioner had approached this court for seeking relief for quashing and setting aside the letter of GPSC dated 15. 7. 1998 rejecting the application of the petitioner for the post of Computer programmer by which the Gujarat Public service Commission had not considered the petitioner for interview to the post of programmer (Computer) and Government polytechnic in GES Class-II Advertisement no. 2 of 1997 on the ground that the petitioner is not possessing the prescribed educational qualification and also prayed that the GPSC be directed to call the petitioner for the interview for the post of Computer programmer along with other eligible candidate, ignoring rejection letter dated 15. 7. 1998 and further prayed by way of direction that the respondent Government to consider the application of the petitioner along with other eligible candidate and the services rendered by the petitioner be regularized as Computer Programmer. By way of interim rclicfr the petitioner has prayed that the respondent authority be directed to call the petitioner for interview for the post of computer programmer along with candidates ignoring the rejection letter dated 15. 7. 1998 and in the alternatively, the petitioner has prayed that to direct the respondent authorities not to proceed further with the selection process pursuant to the advertisement published on 17. 5. 1997 for the post of Computer Programmer without taking interview of the petitioner on the basis of the new recruitment rules on the post of computer programmer for government Polytechnic. ( 2 ) THE petitioner has annexed the advertisement, issued in public news paper "fulchhab" dated 6. 12. 1988 for about 7 posts in the pay scale of Rs. 2200-4000, for which, the last date for submitting the application was fixed 26. 12. 1988. The petitioner has pursuant to that advertisement made application and he was appointed as per order dated 29th March, 1989 along with other 3 candidates purely on ad-hoc basis the petitioner was found in the said list at sr. No. 3 and he was appointed on the post of Computer Programmer and posted at A. V. Parekh Technical Institute, Rajkot. It is an admitted fact that by virtue of adhoc appointment made by the authority, the petitioner is continued on the said poet. No. 3 and he was appointed on the post of Computer Programmer and posted at A. V. Parekh Technical Institute, Rajkot. It is an admitted fact that by virtue of adhoc appointment made by the authority, the petitioner is continued on the said poet. It it the case of the petitioner that he was, having qualification of B. E. (Mechanical) and alto having experience of 1 year of computer programming or training. After he was appointed as Computer Programmer in A. V. Parekh Technical Institute at Rajkot, the petitioner was transferred to Government polytechnic for /girls at Surat in July. 1992 and till the petition was filed, he was working at Surat. ( 3 ) AS per the earlier appointment on ad-hoc basis, the petitioner was continued on the said post and even till today he is holding the said post. Pursuant to the advertisement issued by the GPSC on 15th july, 1997, the petitioner has applied for the said post namely for Computer Programmer. However, the GPSC has as per communication dated 15th July, 1998 has informed the petitioner that application of the petitioner for Programmer (Computers) in Gujarat Educational Service class-II as per advertisement. Pursuant to the advertisement issued by the GPSC on 15th july, 1997, the petitioner has applied for the said post namely for Computer Programmer. However, the GPSC has as per communication dated 15th July, 1998 has informed the petitioner that application of the petitioner for Programmer (Computers) in Gujarat Educational Service class-II as per advertisement. No 2/97, the commission has considered the said application and found that the petitioner is not selected for interview as the petitioner us not having the prescribed age limit and further the petitioner is not possessing the prescribed educational qualification The petitioner hab accordingly, challenged the said decision of the GPSC dated 15th July, 1998 by filing this petition ( 4 ) AS per the advertisement and clause 3 (b) of the said advertisement, a candidate must possess (i) Masters Degree at least with Second class in Computer application or its equivalent ot recogm/ed university, or (ii) A Second Class Bachelors degree in Computer Application of recognized university or its equivalent with about one years experience of Computer Programming in the Government Organization and/or institution recognized by the Government ( 5 ) AS found from the petition that the petitioner was appointed on ad-hoc basis as Computer Programmer at per appointment order in the year 1986 as he was qualified holding the decree of B E (Mech ) and also having experience of one year of Computer Programming, by which, the petitioner has also annexed the document and the petitioner was working on ad-hoc basis on the post of Computer Programmer till filing of the petition and even he continued even thereafter and the appointment which was made earlier, was subject to the availability of regular candidates by the GPSC lie has worked on the said post since 1986 to 1997 and till then, gpsc has not conducted any examination for selection even by issuing any advertisement and pursuant to the advertisement, which was issued by the gpsc on 175 1997, the petitioner has applied to the said post as he was fulfilling the requisite educational qualification as well as experience. The petitioner hat also placed reliance upon the recruitment rules for the post of computer programmer framed under notification dated 27. The petitioner hat also placed reliance upon the recruitment rules for the post of computer programmer framed under notification dated 27. 41993 and as far as educational qualification for the post of computer programmer as prescribed is a person having (i) Masters decree at least with second class in computer application or its equivalent of recognized university, or (ii) a second class Bachelors decree degree in computer application of recognized university or its equivalent with about one years experience of Computer Programming in the government organization and/or institution recognized by the Government etc. It is the case of the petitioner that petitioner is possessing requisite qualification as well as experience since he is working since last 12 years and accordingly, petitioner has also (represented with the Director of Technical education for his case for the post of computer Programming and the petitioner has not received any reply about the application submitted to the Director of technical Education. On the basis of the application submitted by the petitioner, the gpsc has informed the petitioner on 15. 7. 1998 by rejecting his application for the post for which the Public Service Commission was to interview by informing the petitioner that petitioner is not holding required educational qualification and he is age barred. This letter issued by the GPSC to the petitioner is at Annexure - E. ( 6 ) AS per order dated 24. 11. 1998, the court had ex-parte granted relief by directing the respondent authority to provisionally consider the petitioners candidature for the post of Computer Programmer in the course of selection which is going on for that purpose and the consideration of the petitioners candidature shall not be denied to him either on the ground that he has become over-age or on the ground that he lacks the minimum requirement for that purpose. The result of the consideration of the petitioners candidature shall be kept in a sealed cover The petitioner shall be interviewed along with other candidates for the post of Computer Programmer pursuance to the ad-interim relief granted, the petitioner was permitted for interview held by the GPSC and the result of the interview was ordered to be kept in sealed cover The ex part, interim relief was granted in view of the amendment in the petition by introducing para 212 ( 7 ) A reply affidavit is filed by Dr umeshkumar II Upadhyay, Dy Director of technical Education, Gandhmagar at the notice stage for the purpose of opposing admission and also relief of interim relief by denying the case put forward by the petitioner As found from the reply affidavit that the petitioner was appointed as ad-hoc computer Programmer in the Department of Technical Education Department under the control of Education Department, Gujarat state The said order of appointment which is annexed by the petitioner in the petition clearly suggests that the petitioner is appointed on a purely temporary and ad-hoc basis for a period of 11 months or till regularly selected GPSC candidates are available At the relevant point of time, as no recruitment rules were framed under article 309 of the Constitution of India, the recruitment was made on the basis of draft rules prescribed vide Government Resolution dated 1 3 1988 The education department in exercise of the powers conferred to articles 309 of the Constitution of India has framed rules in consultation with the General administrative Department, Finance departmentl Legal Department and GPSC for recruitment to the post of Programmer (Computers) in Gujarat Educational Services class-II (Collegiate branch) for Government polytechnic under the Directorate of technical Education on 27 4 1993, wherein the Government has prescribed the requisite qualification and experience Pursuance to the said rules framed, the GPSC had advertised for the selection of the candidates for the said post as per advertisement dated 17th May, 1997. ( 8 ) AFTER the rules framed under article 309 of the Constitution of India, recruitment for the said post is to be governed on the basis of rules framed thereunder and further that as per the recruitment rules, the case of Programmer (Computer) in Gujarat Educational Service class-II (Collegiate Branch) is admittedly not exempted from the preview of GPSC. ( 8 ) AFTER the rules framed under article 309 of the Constitution of India, recruitment for the said post is to be governed on the basis of rules framed thereunder and further that as per the recruitment rules, the case of Programmer (Computer) in Gujarat Educational Service class-II (Collegiate Branch) is admittedly not exempted from the preview of GPSC. The mode for recruitment to the aforesaid post is by direct selection and no other mode is envisaged by Recruitment Rules. ( 9 ) EVEN considering the case of the petitioner, the petitioner is graduate in bachelor of Engineering in Mechanical branch with IInd Class from Gujarat university in the year 1983 and the certificate attached by the petitioner issued by Director/advisor from Vikram Sarabhai community Science Centre, Ahmedabad shows that petitioner has participated in the course of Computer Application from february 23, 1988 to March 14, 1988. As per the prescribed educational qualification under article 309 of the Constitution of Indian the requirement is that candidate must be a Ilnd class. Bachelors decree in computer application of recognized university or its equivalent with about one years experience of Computer Programming in the government Organization and/or Institution recognized by the Government and the candidate must be more than 35 years of age. Admittedly, the petitioner is not possessing the qualification of Master decree in Ilnd Class Bachelors deciee in computer application of recognized university or its equivalent with about one years experience of Computer Programming in the government Organization. The certificate issued by Vikram Sarabhai Institute only shows that the petitioner has participated in the course conducted of computer application during the period from February 23, 1988 to March 14, 1988, such participation will not be conferred to recognitions as prescribed under Rules. Admittedly, the petitioner is not possessing the required educational qualification at the time when the applications were invited by the GPSC. ( 10 ) ACCORDINGLY, the rejection of the application form of the petitioner by the gpsc on the ground that petitioner is not possessing prescribed educational qualification is found to be proper as the petitioner has not produced any document or certificate to show that the petitioner has not requisite educational qualification prescribed as per the recruitment rules. ( 10 ) ACCORDINGLY, the rejection of the application form of the petitioner by the gpsc on the ground that petitioner is not possessing prescribed educational qualification is found to be proper as the petitioner has not produced any document or certificate to show that the petitioner has not requisite educational qualification prescribed as per the recruitment rules. However, rejection made by the GPSC on the ground that the petitioner is age barred is not proper in light of the fact that when the petitioner was appointed, though on ad- hoc basis on the post of lecturer in mechanical department as per notification dated 27. 3. 1989 and when he was working in the Government institute though on ad- hoc basis, the rejection of the application of the petitioner on the ground that he is age barred is not proper. No reply affidavit is filed by GPSC to deal with the contentions raised in the petition till today and in light of the submission made before me, when the petitioner was appointed on ad-hoc basis, he was eligible even for that appointment even there was no age bar at that time and for the first time, after the recruitment rules were framed, the GPSC has passed this advertisement and rejection of the application of the petitioner on the ground that petitioner is age barred is not found proper as the petitioner is required to be considered in service with the Government institution and even his application can be considered through it is made by the institute. ( 11 ) IN light of this, as the petitioner is not holding the requisite qualification as prescribed under the advertisement, which is prescribed under Rules under Article 309 of the Constitution of India, the petitioner cannot get any relief that his case is required to be considered on the basis of his earlier ad-hoc appointment on the said post and further even the relief which was granted in favour of the petitioner ex-parte by which he was interviewed is not going to help about the outcome of the result of the GPSC. ( 12 ) IT is also brought to my notice that the Division Bench of this court in similar facts rendered a decision in the matter of K. I) VOHRA VS KAMLESHBHAL gobarbhai PATEL, REPORTED IN 2003 (3) GLH P. 1343, where the Division Bench had an occasion to deal with the Letters patent Appeal filed by the Appellants petitioners who were appointed on ad-hoc lecturers pending the availability of the regular appointee available through GPSC to the post of Lecturer, Gujarat Education services Class-II (Collegiate Branch) against the common judgment and order of the learned Single Judge allowing the Special civil Application and other cognate matters, which were filed by the candidates selected through GPSC as per the recruitment rules applicable to the said posts and other cognate matters which were filed by the ad-hoc appointees. In the said decision, the Division bench had considered the English decisions, various decisions of the Apex Court as well as of this court. As found from the facts of the present case, the petitioner was appointed on ad-hoc basis as back as on 1986 and he was selected candidate. At that timer the recruitment rules has not seen the light of the day and selection of the petitioner clearly made on ad-hoc basis, which is apparently found from the appointment order issued by the authority. In that case, though, the petitioners were appointed on ad-hoc basis for a period of 11 months, the petitioner continued on the said post till date and when the advertisement for selection of the candidate for the said post is published, the petitioner has applied for the same and the petitioner was not eligible as he was not fulfilling the required educational qualification. The ad-hoc appointee has no right to be continued to contrary to the recruitment rules nor can be they be ordered to be regularized by any mode not warranted by the statutory rule, governing appointment to the cadre of lecturer. The Division bench has also examined for continuation of the ad-hoc appointees where the Division Bench has observed in para 17, which reads as under :- "para 17 : It was argued that, from the continuance of the adhoc appointees for long period, it should be inferred that the recruitment rules were relaxed in their favour and they are deemed to have been regularized. The appointments of the appellants and the like were mere local appointments made dehors the rules and such ad hoc appointments could not have been made for a period exceeding one year, without consulting the Public Service commission. The posts having not been filled up on regular basis in accordance with the statutory rules were required to be treated as vacant for the purpose of undertaking the process of regular recruitment. The terms of appointment of the ad hoc appointees clearly stipulated that they would be relieved when the GPSC candidate or a transferee- was available. Such ad hoc status of these appointees did not at any stage alter by any rules or regulations having force, of law. The appellants and the like who were appointed in ad hoc capacity, therefore, continued to hold the posts in that capacity only, and there would be no alteration of their status from ad hoc appointees to regular recruits. As held by the Supreme Court in STATE of M. P. V/s. DHARAM BIR, REPORTED IN (1998) 6 SCC 165 , it is not open for any government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. The exigencies of service often require ad hoc arrangement till the regular selection gets finalised. If the ad hoc employees who continued as ad hoc beyond one year are to be regularized or deemed to have been regularized as argued on their behalf, that would frustrate the very process of selection and appointment as per the mode and procedure prescribed by the statutory rules, and, as would happen in the present case, no posts would be left for the regularly selected persons, because, two persons cannot hold the same post on a regular basis. As held by the Apex Court in piyara Singhs case (supra), efforts should always be to replace such ad hoc employee by a regularly selected employee as early as possible. Such temporary employee may also compete along with others for such regular selection / appointment and if he gets selected, well and good, but If he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be held in abeyance for the purpose of allowing the ad hoc employee to continue. Such temporary employee may also compete along with others for such regular selection / appointment and if he gets selected, well and good, but If he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be held in abeyance for the purpose of allowing the ad hoc employee to continue. When the field is covered by the statutory rules laying down the node of regular appointments" the Courts will not be justified in directing any regularisation which nay be dehors the rules. No illegality should be allowed to perpetuate under the Court orders. Therefore, the Court while holding that the regular appointments by direct selection to the post of Lecturers can be made only as per the recruitment rules and the general rules in consultation with the GPSC as contemplated thereunder, cannot, in the same breadth, order that the ad hoc appointees irregularly continuing beyond one year pending the availability of regular GPSC recruits should be treated as regularized due to their prolonged continuance on ad hoc basis. That would amount to asking the government to violate the statutory rules in the context of the ad hoc appointees while professing to uphold and enforce them in context of the direct recruits. Such self-contradictory approach would be a mockery of the legal system. It would be for the State Government to devise any scheme consistent with the recruitment rules or a validating statutory provision, if at all the ad hoc appointees are to validly hold the post. It is obvious that the State cannot be compelled by the Court to legislate in the matter for making any statutory exception in the recruitment rules or to retrospectively validate by a statutory provision any such ad hoc appointment. ( 13 ) THE Division Bench also in para 26 and 26. 1 has also observed, which reads as under :-"26. It is obvious that the State cannot be compelled by the Court to legislate in the matter for making any statutory exception in the recruitment rules or to retrospectively validate by a statutory provision any such ad hoc appointment. ( 13 ) THE Division Bench also in para 26 and 26. 1 has also observed, which reads as under :-"26. Though these ad hoc lecturers cannot be directed to be continued contrary to the recruitment rules, nor can they be ordered to be regularized by any mode not warranted by the statutory rules governing the appointments to the cadre of Lecturers, gks, Class II (Collegiate Branch), in the facts and circumstances of the case, we direct that these, ad hoc lecturers be treated as a separate class in view of their ad hoc continuance for nearly a decade due to reckless indifference in discharge of duties on the part of the executive and be considered for absorption in such posts as may be available with the government or under the authority of the government in consonance with the statutory provisions applicable to such posts. The. State government is also directed to inquire into the serious lapse of not consulting the GPSC while continuing these ad hoc lecturers contrary to Recruitment Rules beyond one year and fix the responsibility for the careless default that has resulted in the ad hoc lecturers being continued for long without consultation with the GPSC and for the posts not having been filled through the GPSC, as per the Recruitment Rules and the General rules for over a decade, especially when there was no interim order of any Court, as we are told, which could have prevented the process of regular recruitment. para 26. 1. For the reasons indicated above, we also direct that each of the appellants ad hoc lecturers who are ordered to be relieved by the impugned action of the state Government be paid, by way of a token compensation, one months salary, and such amount be recovered from the defaulting officers who may be found by the State government to be responsible for the inaction in sending requisitions to the Gujarat Public service Commission or in not consulting it while illegally continuing the ad hoc lecturers beyond one year of their initial local appointments, without bothering to consult the GPSC under the Rules. " ( 14 ) IN light of this fact, when the petitioner was appointed on ad-hoc basis and working on the said post since 1986 and continued till today, however, at the relevant time the petitioner was not found having requisite educational qualification as per the requirement and therefore, the application submitted by the petitioner to the GPSC was rightly rejected and no interference is required in the said decision taken by the gpsc. Accordingly, present petition is dismissed. Rule is discharged with no costs. .