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Gujarat High Court · body

2013 DIGILAW 759 (GUJ)

Satishkumar Ramanbhai Patel v. State of Gujarat

2013-12-21

BHASKAR BHATTACHARYA, J.B.PARDIWALA

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Judgment Mr. Bhaskar Bhattacharya, CJ.—This Letters Patent Appeal is at the instance of the unsuccessful writ-petitioners and is directed against an order dated 25th November, 2013 passed by a learned Single Judge of this Court by which His Lordship dismissed the Special Civil Application filed by the appellants. 2. Being dissatisfied, the writ petitioners have come up with the present appeal. 3. In the Special Civil Application out of which the present Letters Patent Appeal arises, the petitioners made the following prayer: “8(B) This Hon’ble Court may be pleased to issue appropriate writ, order or direction directing the concerned respondent authorities to pass appropriate order for granting relaxation in respect of criterion of upper age limit prescribed through the advertisement annexed as Annexure-”G” hereto for giving appointment to the post of Kaushalya Sahayak / Supervisory Instructor and furthttp://in.yahoo.com/her be pleased to direct the concerned respondent authorities to pass appropriate order on the basis of the recommendations / letters annexed as Annexure-”I” and Annexure - “J” to the main petition and also further be pleased to direct the concerned respondent authorities to pass appropriate order for granting relaxation in respect of criterion of upper age limit for “General” Category candidates i.e. the present petitioners for filing up the post of Kaushalya Sahayak / Supervisory Instructor on the basis of the advertisement annexed as Annexure-”G” hereto: AND / OR ALTERNATIVELY (C) This Hon’ble Court may be pleased to issue appropriate writ, order or direction directing the concerned respondent authorities to permit the petitioners to submit their applications for seeking appointment on the post of Kaushalya Sahayak / Supervisory Instructor on the basis of advertisement annexed as Annexure “G” hereto and further be pleased to direct the concerned respondent authorities to permit the petitioners to appear in the necessary written examinations by permitting the petitioners to tender their applications through hard copy (other than on line system) and further be pleased to direct the concerned respondent authorities to consider the same in view of the Rule 16 of the Gujarat Civil Services (Classification and Recruitment (General) ) Rules, 1967 and relaxation in respect of the upper age limit criterion may kindly be given to the petitioners by accepting the applications of the petitioners. (D) Pending admission, hearing and final disposal of this petition, this Hon’ble Court be pleased to grant interim / ad interim / ex-parte interim relief and be further pleased to direct the concerned respondent authorities to permit the petitioners to submit their applications thorough hard copy (other than on line system of submitting the applications) and by way of interim order, the concerned respondent authorities may kindly be directed to permit the petitioners to submit their applications seeking appointment on the post of Kaushalya Sahayak / Supervisory Instructor on the basis of advertisement annexed as Annexure - “G” hereto and further be pleased to direct the concerned respondent authorities to permit the petitioners to appear in the written test, which may be conducted for filling up the post of Kaushalaya Sahayak / Supervisory Instructor pursuant to the aforesaid advertisement annexed as Annexure-”G” hereto, by way of interim / adinterim / ex-parte interim relief till the aforesaid petition is finally heard and decided.” 4. The petitioners possess the necessary qualification prescribed under the Gujarat Civil Services (Classification & Recruitment [General]) Rules, 1967 [the Rules hereafter] for appointment to the post of Kaushalya Sahayak / Supervisory Instructor. The petitioners have the requisite qualification of SSC and diploma in various trades such as Diploma in Mechanical, Automobile etc., and they acquired the aforesaid qualification from the Technical Education Board under the concerned respondent-authorities. 5. Recently, an advertisement has been published in the year 2013 inviting applications for filling up the post of Kaushalya Sahayak / Supervisory Instructor. The petitioners belong to the general category and according to the criterion prescribed in the advertisement for the higher age-limit is 30 years for the general category candidates like the petitioners. 6. There is no dispute that the petitioners have crossed the age limit of 30 years and they are aged 32 years. The details of the petitioners are quoted below: 7. There is also no dispute that the petitioners were initially appointed on contract basis under the respondents for a fixed period of 11 months or till the Gujarat State Public Service Commission [GPSC, hereafter] conducted the regular recruitment process. 8. The details of the petitioners are quoted below: 7. There is also no dispute that the petitioners were initially appointed on contract basis under the respondents for a fixed period of 11 months or till the Gujarat State Public Service Commission [GPSC, hereafter] conducted the regular recruitment process. 8. The GPSC, during the relevant time in 2006, used to conduct regular recruitment process after taking competitive examination, but somehow it got delayed, as a result, the GPSC could not conduct the examination and the respondent authorities’ nodal agency continued to employ qualified and eligible candidates through direct selection either by inviting their names from the employment exchange or public advertisement and after taking oral interview. The appointments were on contractual basis for a fixed period of 11 months. 9. After the expiry of 11 months’ period of contract, the respondent authorities used to give advertisement for the post of Kaushalya Sahayak / Supervisory Instructor and after taking oral interview, used to appoint on contract basis for 11 months or till regularly selected candidates from GSPC were available. 10. After the expiry of 11 months contract, the petitioners had been appointed as “visiting faculty” and even at present, they are working as visiting faculty. 11. According to the petitioners, as per Rule 8(5) of the Rules, they are entitled to age-relaxation as they were in temporary government services, and, therefore, they should have been allowed to apply in the current advertisement issued by the Respondent No. 3 on 22nd October 2013 as they were within the age-limit prescribed for the post at the time of their initial appointment in the government service. 12. The petitioners contend that the fact that they are allocated work by the appointing authority and are being made payment regularly the wages at the rate of Rs. 250/- per lecture indicates that they are temporary government servants, and thus, they are entitled to the upper-age-limit-relaxation. 13. It further appears from the record that in the past, the petitioners approached this Court by filing a Special Civil Application being No. 10363 of 2011 and analogous matters. The said petitions were preferred when the respondents had earlier issued similar advertisement and invited applications for the same posts. Since at that time the higher age-limit was 28, the petitioners were not within the said age-limit. The said petitions were preferred when the respondents had earlier issued similar advertisement and invited applications for the same posts. Since at that time the higher age-limit was 28, the petitioners were not within the said age-limit. This Court passed an order observing that the respondents might take appropriate decision for age-relaxation in response to the request / representations by the petitioners. Consequently, some modifications were made in the Rules whereby the respondents provided that the cases of those persons, who are working on contract basis at the time when the advertisement was issued will be taken into consideration 14. There is no dispute that on the date of the advertisement in the month of October 2013, the petitioners are engaged as visiting faculty on the basis of payment at the rate of Rs. 250/- per lecture and monthly payments are made on the basis of total number of lectures allotted in a month. 15. The respondents have opposed the prayer for age-relaxation on the ground that the petitioners, being engaged as visiting faculty, cannot be said to be in service on contract basis, and, therefore, there is no scope of relaxation of higher age-limit. 16. The learned Single Judge, as it appears from the order impugned, accepted the aforesaid defence of the respondents in arriving at the conclusion that the petitioners do not come within the expression of “contract employees” and hence, rejected the writapplication. 17. Therefore, the only question that arises for determination in this appeal is whether the appellants can be said to be contract employees so as to get the benefit of the provisions of Rule 8(5) of the concerned Rules. 18. 17. Therefore, the only question that arises for determination in this appeal is whether the appellants can be said to be contract employees so as to get the benefit of the provisions of Rule 8(5) of the concerned Rules. 18. In order to appreciate the aforesaid question, it will be profitable to refer to Sub-rule (5) of Rule 8, which is quoted below: “(5) Notwithstanding anything to the contrary, contained in any rules for the time being in force relating to the recruitments to any service or post the upper age limit for the purposes of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government Service either as a permanent Government Servant or as a temporary Government Servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in Government Service: Provided that such upper age limit shall apply to such candidate in a case where recruitment to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post: Provided further that where a post requiring a medical, engineering or veterinary or agricultural degree or diploma as a qualification is to be filled by direct selection through the Public Service Commission a Government Servant who was within the age limit when appointed to such post shall, if he subsequently applies for any such post be entitled to relaxation from the application of the upper age limit prescribed as aforesaid, even if experience has not been prescribed as one of the qualifications for such post.” 19. After hearing the learned counsel for the parties and after going through the materials on record, we find that there is no dispute that the appellants are working as visiting faculty for more than six months and when they were initially appointed, they were within the prescribed age-limit. We have already pointed out that the wages or salary is given to the petitioners on the basis of Rs. 250/- per lecture and total number of lecture given in a month. We have already pointed out that the wages or salary is given to the petitioners on the basis of Rs. 250/- per lecture and total number of lecture given in a month. After reading the aforesaid Rule 5, we find that in order to get the benefit of relaxation, it is necessary that the applicants must be a permanent Government Servant or as a temporary Government Servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants they are entitled to such benefits. 20. We do not find any reason why the appellants who are appointed as visiting faculty for the purpose of giving lecture on the basis of Rs. 250/- per lecture should not be treated as contractual employees when the respondent authorities are relaxing the higher age-limit of the persons who are appointed on the basis of contract for 11 months on a fixed honorarium of Rs. 3500/- a month. It appears from the materials on record that the petitioners are getting more than that amount on the basis of Rs. 250/- per lecture. If on the basis of fixed remuneration of Rs. 3500/- a month for a fixed period of 11 months a person can be treated to be in the government employment on contractual basis, there is no reason why a person who is appointed on a term for giving lectures at the rate of Rs. 250/- per lecture and is getting opportunity of giving substantial number of lecture every month should be deprived of the benefit given to the contractual employee. In our opinion, the services of both the above categories are based on contract. The so-called contractual employees are getting a fixed salary of Rs. 3500/- whereas the petitioners are getting a variable amount depending upon the number of lectures but at the fixed rate of Rs. 250/- per lecture. 21. In order to determine whether “A” is in the service of “B”, all that is necessary is the existence of a relationship between the master and the servant, be it guided by the Statutory Rules or by contract and the master must have the right to control the servant’s work either personally or by another servant or agent including the power of dismissal. In this connection, we may profitably rely upon the following observations of the Supreme Court in the case of Raja Bahadur K.C. Deo Bhanj vs. Raghunath Misra and others reported in AIR 1959 SC 589 pointing out the essential conditions of determining whether a person is in the service of the government: “In our opinion, there is a distinction between ‘serving under the Government’ and ‘in the service of the Government’, because while one may serve under a Government, one may not necessarily be in the service of the Government; under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant. There are, according to Batt (On the Law of Master and Servant), two essentials to this relationship: (1) The servant must be under the duty of rendering personal services to the master or to others in his behalf and (2) the master must have the right to control the servant’s work either personally or by another servant or agent and, according to him. ......” (Emphasis supplied by us). 22. Applying the above principles to the facts of the present case, we find that there is a contract of employment between the appellants and the respondents for giving lectures at the rate of Rs. 250/- per lecture as directed by the respondents and the respondents have the right to terminate the service rendered by the Appellants. Thus, there exists a relationship of master and servant created by the contract of rendering the service and consequently, the appellants are entitled to the age-relaxation as they are rendering such service for more than six months and that at the time of initial appointment, they were within the maximum age-limit prescribed by the Rules. 23. In the case before us, the petitioners approached the learned Single before the last date fixed for filing the application pursuant to the advertisement and for getting the benefit of the terms of the advertisement, they have filed the writ-petition. Since this appeal is the continuation of the original proceedings and we propose to hold that the petitioners are also in the “contractual government service” of temporary nature and at the time of initial appointment by the respondent, they were within the prescribed age-limit, they should be given the benefit of upper-age-limit-relaxation. Since this appeal is the continuation of the original proceedings and we propose to hold that the petitioners are also in the “contractual government service” of temporary nature and at the time of initial appointment by the respondent, they were within the prescribed age-limit, they should be given the benefit of upper-age-limit-relaxation. We direct the respondent authorities to consider the application of the appellants by relaxing the upper age-limit and permit them to appear in the process of selection. The order passed by the learned Single Judge is, thus, set aside and the Special Civil Application filed by the appellant is allowed by directing the concerned authorities to pass appropriate order on the basis of letters being Annexure ‘I’ and ‘J’ to the main writ-application and to pass appropriate order relaxing the upper agelimit for general category candidates qua the petitioners for filling up the posts of Kaushalya Sahayak / Supervisory Instructor on the basis of advertisement annexed as Annexure ‘G’ to the main writapplication. The respondent-authority will permit the petitioners to appear in the necessary written examination by permitting the petitioners to tender their application through hard copy [other than online system] and to consider the same as if they have applied within the time period prescribed under the advertisement for the said post. 24. The appeal is, thus, allowed with the above directions. No costs. FURTHER ORDER: After this judgment was pronounced, Ms. Desai, the learned Assistant Government Pleader appearing on behalf of the respondents, prays for stay of operation of our order. In view of what has been stated above, we do not find any reason to stay our order. The prayer is refused.