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Gujarat High Court · body

2017 DIGILAW 1930 (GUJ)

State of Gujarat v. Panchal Dharmishta Mathurbhai

2017-12-22

BIREN VAISHNAV, M.R.SHAH

body2017
JUDGMENT : M.R. Shah, J. 1. All these Letters Patent Appeals are admitted. Shri Nikul Soni, learned Advocate waives service of notice of Admission on behalf of the respective private respondents - original petitioners and Mrs. Nisha Parikh, learned Advocate waives service of notice of Admission on behalf of the respondent No. 2 - AICTE. In the facts and circumstances of the case and with the consent of learned Advocates appearing for respective parties, present Letters Patent Appeals are taken up for final hearing today. 2. As common question of law and facts arise in this group of Letters Patent Appeals and as such they arise out of the impugned common judgment and order passed by the learned Single Judge, all these Letters Patent Appeals are heard, decided and disposed of together by this common judgment and order. 2.1 Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 31.01.2017 passed by the learned Single Judge Special Civil Application Nos. 20131/2016, 19423/2013 and 20132/2016, by which the learned Single Judge has allowed the aforesaid Special Civil Applications and has directed the appellants herein - original respondent - State Authorities to reinstate the original petitioners with all consequential benefits till regular appointments are made or there is any change made by the AICTE at the behest of the State in the sanctioned strength granted for Electronics & Communication Engineering, the original respondent - State Authorities have preferred the present Letters Patent Appeals under Clause 15 of the Letters Patent. 3. The facts leading to the present Letters Patent Appeals in nutshell are as under: 3.1 That all the original petitioners as such were appointed and working as ad hoc lecturers on a contractual terms in the subject of Electronics & Communication Engineering in the Gujarat Government Polytechnics or until the regular appointments are made through GPSC, whichever is earlier. That by order dated 18.11.2016, the services of such ad hoc/contractual appointees were put to an end on filling up the post on regular basis on availability of GPSC selected candidates. At this stage it is required to be noted that as such all the original petitioners were on fix salary and as ad hoc/on contract basis and as such they had no any right to continue as such. At this stage it is required to be noted that as such all the original petitioners were on fix salary and as ad hoc/on contract basis and as such they had no any right to continue as such. That before that, pursuant to the advertisement issued in the year 2013, the GPSC selected 7000 candidates, however the appointment orders came to be made for 71 candidates and they joined the services. That on being served with the order dated 18.11.2016 putting an end to their services, all the original petitioners preferred the aforesaid Special Civil Applications contending inter alia that in the subject of Electronics & Communication Engineering there is a deficit against sanctioned post. It was the case on behalf of the original petitioners that even after 71 appointments were made, 25 ad hoc lecturers would be required. It was further the case on behalf of the petitioners that the GPSC issued advertisement on 24.11.2015 for regular recruitment of 31 lecturers in the very field. The petitioners applied and the written test was held and the result was awaited. It was also the case on behalf of the original petitioners that as per the AICTE norms, total sanctioned strength was 279 posts of lecturers. However, the State Authorities sanctioned only 205 posts and the same has also not been filled up by regular appointment. It was the case on behalf of the petitioners that there is a grievance that the work load of the lecturers by 07.02.2015 also has been increased wrongfully. According to them, instead of resolving the problem of shortage of lecturers, it was the method of increasing the work load which is contrary to the AICTE norms. Therefore, it was mainly contended on behalf of the original petitioners that as against the total sanctioned strength of 279 posts of lecturers, as per the AICTE norms, all the sanctioned posts are not filled in and the sanctioned posts had remained unfilled and therefore, there was no reason to put an end to their services. Therefore, it was mainly contended on behalf of the original petitioners that as against the total sanctioned strength of 279 posts of lecturers, as per the AICTE norms, all the sanctioned posts are not filled in and the sanctioned posts had remained unfilled and therefore, there was no reason to put an end to their services. 3.2 On the other hand it was the specific case on behalf of the appellants herein - original respondent - State Authorities that 16 lecturers have to be relieved out of 59 ad hoc and contractual lecturers on the basis of Last Come First Go principle and other 53 lecturers have been relieved due to lack of job, work load and less number of students. It was the case on behalf of the respondent State Authorities that total strength of student is only about 46% of the total sanctioned strength. It was also the case on behalf of the original respondent - State Authorities that thereafter they have already approached the GPSC to reduce the number of vacancies. It was also the case on behalf of the original respondent - State Authorities that as contractual appointees the original petitioners do not have any right to continue as such. That by impugned common judgment and order the learned Single Judge has directed the appellants herein - original respondents to reinstate the original petitioners with all consequential benefits till the regular appointments are made or there is any change made by the AICTE at the behest of the respondent State in the sanctioned strength granted for Electronics & Communication Engineering solely on the ground that out of the total sanctioned posts of 205 in number of Electronics & Communication Engineering, 45 contractual lecturers on the basis of Last Come First Go can continue. 3.3 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge, the original respondent - State Authorities have preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent. 4. Shri Rohan Yagnik, learned Assistant Government Pleader has appeared on behalf of the appellants herein - State Authorities and Shri Nikul Soni, learned Advocate has appeared on behalf of the original petitioners. 5. 4. Shri Rohan Yagnik, learned Assistant Government Pleader has appeared on behalf of the appellants herein - State Authorities and Shri Nikul Soni, learned Advocate has appeared on behalf of the original petitioners. 5. Shri Yagnik, learned Assistant Government Pleader appearing on behalf of the appellants herein - State Authorities has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in directing the appellants to reinstate the original petitioners with all consequential benefits till regular appointments are made or there is any change made by the AICTE at the behest of the State in the sanctioned strength granted for Electronics & Communication Engineering. 5.1 It is further submitted by Shri Yagnik, learned Assistant Government Pleader that while passing the impugned common judgment and order and directing the appellants to reinstate the original petitioners, the learned Single Judge has not properly appreciated and considered the fact that as such though the sanctioned strength was 205, as per the actual requirement and availability of number of students of 200 posts were not required to be filled in and looking to the work load and the number of students available, services of the contractual lecturers were not required. It is further submitted by Shri Yagnik, learned Assistant Government Pleader that the learned Single Judge has not properly appreciated the fact that though there may be number of sanctioned posts, however the State is not under an obligation to fill in all the sanctioned posts and/or posts advertised. It is submitted that the sanctioned posts are required to be filled in subject to the availability of work and/or work load. It is submitted that if the sanctioned posts at the relevant time are higher, but subsequently due to the reduction in the work load, such sanctioned posts are not required, in that case, it is always open for the State not to fill up all the sanctioned posts and the State can fill up only those posts which are required to be filled in as per the work load. It is submitted that the aforesaid aspect has not at all been considered and dealt with by the learned Single Judge. It is submitted that the aforesaid aspect has not at all been considered and dealt with by the learned Single Judge. 5.2 It is further submitted by Shri Yagnik, learned Assistant Government Pleader that even the learned Single Judge has not properly appreciated and considered the fact that as such all the original petitioners were serving as ad hoc/fixed term employee/on contractual basis on a fixed salary and as such they do not had any right to continue on such posts as such. It is submitted that the services of the original petitioners were put to an end vide order dated 18.11.2016 as the regularly selected candidates selected by the GPSC and as per the requirement and as per the work load were available and appointed. Making above submissions it is requested to allow the present Letters Patent Appeals and quash and set aside the impugned common judgment and order passed by the learned Single Judge. 6. Shri Nikul Soni, learned Advocate appearing on behalf of the original petitioners has tried to oppose the present Letters Patent Appeals. It is submitted that as such in the facts and circumstances of the case and more particularly considering the fact that as per the norms fixed by the AICTE even as per the State, sanctioned posts were 205 in number in the subject of Electronics & Communication Engineering and all the sanctioned posts were not filled in and they remained vacant, the learned Single Judge has rightly observed and held that till all the sanctioned posts which are sanctioned as per the norms of AICTE are filled in and/or till the sanctioned posts are reduced by the AICTE, the original petitioners are required to be continued. Therefore, as such it is requested to dismiss the present Letters Patent Appeals. In the alternative he has requested to remand the matters to the learned Single Judge in case this Court is of the opinion that the State is not obliged to fill up all the sanctioned posts and they are obliged to fill up only those posts which are required as per the work load and the number of students available so that factual aspect can be considered by the learned Single Judge on the aforesaid. 7. Heard learned Advocates appearing on behalf of the respective parties at length. 7. Heard learned Advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such all the original petitioners were serving as ad hoc/fixed term lecturers on fix salary and for a period of 11 months or till the regular GPSC selected candidates are available, whichever is earlier. Therefore, as such, as contractual appointees, they cannot be said to have any right on the post. That vide order dated 18.11.2016, their services were put to an end on the ground that regularly selected GPSC candidates are available and appointed. However, by impugned judgment and order the learned Single Judge has directed the appellants to reinstate all the original petitioners with all the consequential benefits solely on the ground that as per the AICTE norms, 205 posts in the subject of Electronics & Communication Engineering are sanctioned and all the sanctioned 205 posts are not filled in and therefore, the original petitioners can be continued on such sanctioned posts. However, the learned Single Judge has not properly appreciated and considered the fact that as such the State is not obliged to fill up all the sanctioned posts and/or posts advertised earlier. It is always open for the State not to fill up the posts though the same might have been sanctioned in case there is no requirement as per the work load and/or availability of number of students. Despite non-availability of the students and/or non-requirement of the lecturers as per the work load if such ad hoc/contractual lecturers are continued, in that case it can be said that they are to be directed to be continued on the post though there is no requirement as per the work load. The aforesaid aspect has not been considered by the learned Single Judge at all. The factual aspect of required number of posts of lecturers in the subject of Electronics & Communication Engineering as per the work load and/or availability of number of students is required to be considered by the learned Single Judge which has not been considered by the learned Single Judge at all. The factual aspect of required number of posts of lecturers in the subject of Electronics & Communication Engineering as per the work load and/or availability of number of students is required to be considered by the learned Single Judge which has not been considered by the learned Single Judge at all. Therefore, we are of the opinion that if the impugned common judgment and orders are set aside and the matters are remanded to the learned Single Judge to consider the factual aspect and thereafter the appropriate order is passed looking to the requirement of the lecturers as per the work load and/or number of students available, it will meet the ends of justice. The learned Single Judge is also required to consider whether all those original petitioners who as such were working as ad hoc/on contractual basis can be directed to be continued after their contractual term has expired and if according to the State they are not required to be continued looking to the availability of work load and/or number of students available. 8. In view of the above and for the reasons stated above, all these Letters Patent Appeals are allowed. Impugned common judgment and order dated 31.01.2017 passed by the learned Single Judge in Special Civil Application Nos. 20131/2016, 19423/2016 and 20132/2016 is hereby quashed and set aside and the matters are remanded to the learned Single Judge for fresh consideration in accordance with law and on its own merits and in light of the observations made hereinabove. Now, the matters may be placed before the learned Single Judge for final hearing taking up such matters. All the Letters Patent Appeals are allowed to the aforesaid extent. No costs. Civil Application Nos. 13435/2017, 11902/2017 and 16987/2017 In view of disposal of main Letters Patent Appeals, present Civil Application Nos. 13435/2017, 11902/2017 and 16987/2017 also stand disposed of.