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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

LETTERS PATENT APPEAL No 485 of 2002

in

SPECIAL CIVIL APPLICATIONNo 2395 of 2001

WITH

LETTERS PATENT APPEALS NOS. 817/2002 AND

LETTERS PATENT APPEALS NOS. 819/2002 TO 1043/2002

WITH

LETTERS PATENT APPEALS NOS.488/2002, 489/2002,

595/2002, 750/2002, 751/2002, 753/2002, 754/2002,

756/2002, 757/2002, 816/2002 & 1064/2002

WITH

LETTERS PATENT APPEALS NOS. 491/2002 AND

812/2002 TO 815/2002

WITH

LETTERS PATENT APPEALS NOS. 540/2002 AND

558/2002 TO 561/2002

WITH

LETTERS PATENT APPEAL NO. 818/2002

AND

LETTERS PATENT APPEAL NO.492/2002

 

 

 

For Approval and Signature:

 

Hon'ble MR.JUSTICE R.K.ABICHANDANI

and

Hon'ble MR.JUSTICE SHARAD D.DAVE

============================================================

1. Whether Reporters of Local Papers may be allowed : YES

to see the judgements?

2. To be referred to the Reporter or not? : YES

3. Whether Their Lordships wish to see the fair copy : NO

of the judgement?

4. Whether this case involves a substantial question : NO

of law as to the interpretation of the Constitution

of India, 1950 of any Order made thereunder?

5. Whether it is to be circulated to the concerned : NO

Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?

--------------------------------------------------------------

K.D. VOHRA

Versus

KAMLESHBHAI GOBARBHAI PATEL

--------------------------------------------------------------

Appearances:

(1) Mr.K.S.Nanavati, Sr. Counsel for Nanavati

Advocates for the appellants in L.P.A. Nos.

485/2002, 817/2002 and 819/2002 to 1043/2002

(2) Mr.Girish Patel, Sr. Counsel with Mr.Shalin

Mehta, Counsel for the appellants in

488/2002, 489/2002, 595/2002, 750/2002,

751/2002, 753/2002, 754/2002, 756/2002,

757/2002, 816/2002 & 1064/2002

(3) Ms. Ketty Mehta, Counsel for the

appellants in L.P.A. No.491/2002 and

L.P.A. Nos.812/2002 to 815/2002

(4) Mr.I.J.Naik, Counsel for the appellants

in L.P.A. Nos.540/2002 and 558/2002 to 561/2002

(5) Mr.N.M.Kapadia, Counsel for the

appellants in L.P.A. No. 818/2002

(6) Ms. Nita Panchal for Mr.Shaktisinh Gohil,

Counsel for the appellant in L.P.A.

No. 492/2002

(7) Mr.S.N.Shelat, Advocate General with

Mr.A.D.Oza, Government Pleader for the

State of Gujarat in all appeals

(8) Mr.D.N.Patel, Counsel for the Gujarat

Public Service Commission

(9) Mr.Paresh Upadhyay, Counsel for the

respondent No.1

--------------------------------------------------------------

CORAM : MR.JUSTICE R.K.ABICHANDANI

and

MR.JUSTICE SHARAD D.DAVE

Date of decision: 11/12/2002

ORAL COMMON JUDGEMENT

(Per : MR.JUSTICE R.K.ABICHANDANI for the Court)

1. This group of appeals has been preferred by

persons who were appointed as ad hoc lecturers pending

the availability of the regular recruits through the

Gujarat Public Service Commission (GPSC for short), to

the post of Lecturer, Gujarat Educational Service, Class

II, (Collegiate Branch), against the common judgement and

order dated 15th July 2002 passed by the learned Single

Judge allowing the Special Civil Applications No.2395 of

2001 and other cognate matters which were filed by the

candidates selected through the GPSC as per the

Recruitment Rules applicable to the said post and

rejecting the Special Civil Application No. 4396 of 2001

and other cognate matters which were filed by the ad hoc

appointees, who were required to be replaced by the GPSC

selectees.

2. In Special Civil Application No. 2395 of 2001

and its cognate matters which were filed by the direct

selectees through the GPSC, it was prayed that the

petitioners should be appointed to the posts of Lecturer

as per the recommendation of the GPSC. The GPSC had

issued an advertisement on 15th June 1990 for recruitment

to the posts of Lecturer, Gujarat Educational Services,

Class II, (Collegiate Branch) to the Government Colleges

in different subjects in respect of 475 vacancies which

had arisen and many of which were being manned by the ad

hoc appointees over a long period of time. According to

these petitioners, they were duly selected by the GPSC

and recommended for the post, and that, as per the extant

instructions of the Government, the appointment pursuant

to the GPSC recommendations could not have been delayed

beyond the period of six months. It was pointed out that

300 lecturers were continued on ad hoc basis subject to

the availability of the candidates selected through the

GPSC, but, for the reasons best known to the Government,

these regularly selected candidates were not issued

appointments. Amongst these regularly selected

candidates, there were also some candidates who while

working on ad hoc basis came to be selected by the GPSC.

Some of the ad hoc lecturers locally appointed were drawn

from government schools from their Class III posts in

which their lien was retained, while the rest were

locally appointed direct on ad hoc basis. All the ad hoc

appointees knew that they were to hold the post only till

the availability of the GPSC candidates. Despite the PSC

asking the Government to explain why the appointments

were not being made pursuant to its recommendation, the

Government was delaying the matter. These direct

selectees therefore prayed for being appointed pursuant

to their selection by the GPSC. As the matter now

stands, appointment orders of 132 direct selectees were

issued on 10th November 2001, and further appointments of

210 such GPSC selectees have been issued on 9th October

2002 after the decision of the learned Single Judge. It

is stated that many of these have joined their posts

except 123 direct selectees who, though appointed, are

yet not posted in view of the interim orders which

operated in favour of the ad hoc appointees.

2.1 It appears that, during the pendency of Special

Civil Application No. 2395 of 2001, which was filed by

direct selectee, the present three appellants of the

Letters Patent Appeal No. 485 of 2002 and three other ad

hoc appointees had, at their instance, been impleaded as

party respondents Nos. 5 to 10. The original

respondents Nos. 5, 6 and 8 are the appellants of the

Letters Patent Appeal No. 485 of 2002. All other

Letters Patent Appeals are by such ad hoc appointees.

3. In Special Civil Application No. 2992 of 2001

and other cognate matters, the contentions raised by the

ad hoc appointees were almost common in all their

petitions and their main grievance was that, though

initially they were appointed on ad hoc basis, their

appointments having been made after being selected by the

local Committee constituted as per the resolution /

circular dated 21st December 1992, which comprised of

Joint Director of Education or Deputy Director as well as

Principal and Lecturer of the respective college and one

Expert from amongst the panel of Lecturers, in accordance

with the requirements of the Recruitment Rules as regards

the educational qualifications and they, having been

continued for a number of years, have acquired a right to

continue on the post of lecturer. Their appointments

should be considered to have been duly regularized and

they have a better right to hold the said post over the

direct selectees. According to them, their appointments

were made on the basis of merit after they were tested by

the Interview Committee constituted under the aforesaid

circular. It is contended by them that, since they had a

long teaching experience and have been teaching in

various colleges without any adverse reports against

them, any action of discontinuing them for accommodating

the fresh candidates was violative of their fundamental

rights guaranteed by Articles 14 and 16 of the

Constitution. It is also their case that the Government

had regularised similar temporary employees as Doctors in

Ayurvedic Colleges, as also the employees of the Narmada

& Water Resources Department, without being required to

undergo the process of selection through the GPSC.

Denial of similar treatment to these ad hoc appointees

was, therefore, violative of their fundamental right to

equality guaranteed by Articles 14 and 16 of the

Constitution, as also their right to life under Article

21 of the Constitution. The ad hoc lecturers therefore

prayed that they should be regularised as Lecturers.

3.1 On 15th July 2002, the learned Single Judge,

while allowing the petitions of the direct selectees,

rejected the prayer of the appellants for continuing them

in service, holding that they would be treated as surplus

but not entitled to any regular salary or financial

advantage.

3.2 The case of the appellants of Letters Patent

Appeal No. 540, 558 to 561 of 2002 and other matters was

that they were interviewed by the duly constituted Staff

Selection Committee in January 1990 and appointed as

Lecturers in Electronics in the Government Colleges.

They applied pursuant to the advertisement dated 15th

June 1998 issued by the Gujarat State Public Service

Commission for the post of Lecturers, but they received a

letter of rejection on the ground that they did not

possess the prescribed educational qualifications. In

May 1999, they represented to the Government for

regularising their ad hoc appointments, but without any

response. They apprehended that the GPSC selectees may

be appointed in their place and their services would be

terminated and therefore, they filed the petitions from

which these appeals arise. They also relied upon the

affidavit-in-reply dated 14th June 2001 filed on behalf

of the State Government for claiming to be regularised as

Lecturers from the date of their initial ad hoc

appointment notwithstanding the change in the stand by

the Government in its subsequent affidavit dated 30th

August 2002.

3.3 The Letters Patent Appeal No. 818 of 2002 is

preferred by the ad hoc appointee who had approached the

Court for regularisation on the ground that he had put in

11 years of service as ad hoc appointee. It was his case

that, though he was desirous of getting appointment

through the PSC, no selection process was held by the

State Government for more than 10 years. His petition in

which he raised contentions similar to those raised by

the other ad hoc appointees, also came to be rejected by

the learned Single Judge alongwith other matters, which

decision is challenged on the grounds similar to those

raised in other appeals.

3.4 Letters Patent Appeal No. 492 of 2002 is filed

by the original respondent No.7, who came to be added in

Special Civil Application No. 2395 of 2001 alongwith

other five persons as respondents Nos. 5 to 10. In this

appeal, contentions identical to those raised in other

appeals by the ad hoc appointees have been raised and

hence, they need not be repeated.

4. The stand taken up by the State Government in the

affidavit-in-reply dated 27th April 2001 filed in Special

Civil Application No. 2395 of 2000 was that the posts of

lecturer in Gujarat Educational Services (Collegiate

Branch) are Class II posts and were required to be filled

in by consultation with the GPSC. However, in accordance

with the provisions contained in the proviso to

Regulation 3 of the GPSC (Exemption from Consultation)

Rules, 1960, appointment to such posts can be made by the

Competent Authorities for a period of one year without

such consultation. Since considerable time elapses in

getting recommendation from the GPSC of such candidates,

the ad hoc appointments have been made from time to time

so as to ensure that the interest of the large number of

students was not affected adversely for the reason of

non-availability of teaching staff. It was stated that

several candidates selected by the local selection

committee constituted by the Commissioner of Higher

Education under its circular dated 21-12-1992, came to be

appointed on ad hoc basis. Similarly, several candidates

who were working in the government schools and associated

with teaching were also appointed on ad hoc basis keeping

their experience and educational qualifications in view,

as per the circular dated 20-12-1991 issued by the

Commissioner of Higher Education in this regard. The

above two circulars are produced at Annexure "I" and "II"

to the said affidavit-in-reply. It was stated that, as

per the scheme of the such ad hoc appointments services

of all such ad hoc appointees were to be terminated on

completion of academic term. However, such ad hoc

appointees had obtained interim orders from time to time

from the Courts against such termination and therefore,

they were continued in service on ad hoc basis.

Ultimately, it came to be decided in a group of petitions

on 12-5-1999 (Special Civil Application No. 841 of 1998

and other cognate matters decided by Hon'ble Mr. Justice

S.K.Keshote), that such ad hoc appointees were to be

continued only till availability of the candidates

recommended by the GPSC. A group of appeals preferred by

the ad hoc appointees (Letters Patent Appeal No. 1057 of

1999 and other cognate appeals) against the said decision

dated 12-5-1999 came to be disposed off by the Court on

29-9-1999, and the appellants were permitted to withdraw

their original petitions, without reserving any liberty

for them to file fresh petitions and to make

representations. The appeals were disposed of on the

ground that they did not survive in view of the

withdrawal of the petitions. It was stated that,

pursuant to the said decision which required the

representations of these persons to be considered, they

had made the representations which were considered by the

Government. In the meanwhile, to fill up the posts of

lecturers available in the different subjects, necessary

requisitions were sent to the GPSC in the year 1997, with

reference to which the Commission issued an advertisement

and on completion of process of selection, have

recommended the names of selected candidates to the

Government for appointment. It was also stated that, in

view of the Government having accepted the package of

University Grant Commission recommendations in respect of

all the teaching staff, it had undertaken the task of

reviewing the strength of the sanctioned establishment of

lecturers as per the norms of the UGC guidelines. It was

then stated that the Government was making all possible

endeavours to keep balance between those who have been

directly selected through the GPSC and those who are

working on ad hoc basis and who are required to be

considered as per the guidelines issued in group of

appeals, and that, appropriate action would be taken when

decision was reached. It was also stated that all

possible endeavour was made by the Government to

accommodate and appoint the persons selected through the

PSC though such selected person had no right to seek a

mandamus for appointment.

4.1 In the affidavit-in-reply filed on 14th June

2001, in context of the direction of the High Court to

decide the representation of the ad hoc lecturers as

early as possible and, in any case, before 10th June

2001, which was issued on 4-5-2001 on the basis of the

earlier directions given in Letters Patent Appeal No.

1057 of 1999 on 29-9-1999, the Government had taken a

decision that the services of all the 330 persons

appointed as lecturers in Government Colleges on ad hoc

basis, from time to time, by the Commissioner of Higher

Education pursuant to their selection by the local

Selection Committee constituted under the circular of

21-12-1992 should be regularized from the date of their

appointment as such, as was done in cases of Medical

Officers (Ayurved) by the Health and Family Welfare

Department by its resolution dated 4-10-1999. It was

further stated that it was decided that, for regularizing

the services of all such ad hoc appointees, a reference

to the GPSC should be made to obtain its approval as a

special case. All the 64 persons who had lien on the

posts in respective schools from which they were drafted

and appointed as ad hoc lecturers in Government Colleges

were to be repatriated to their original posts. It was

also decided that, after working out the subject-wise

number of posts of Lecturers in Government Colleges in

view of new workloads on account of revision of UGC

scales and after accommodating the ad hoc appointees, if

clear posts of lecturers of the respective subjects

become available, the candidates recommended by the GPSC

were to be considered for appointment as per their rank

in the select list. It was further decided, as stated in

the said affidavit-in-reply, that, in the eventuality of

the ad hoc appointees being declared surplus, their names

would be registered by the Commissioner of Higher

Education and they would be adjusted by giving

appointments on the posts that may be available on

account of retirement, resignation, promotion, death etc.

in future.

4.2 In the affidavit-in-reply dated 30th August 2001,

the Government, however, took a stand different from that

which was taken in its affidavit dated 4th June 2001. It

was stated that a High Level Committee held its meeting

on 16th August 2001 to consider the issues relating to ad

hoc lecturers / regular lecturers selected through the

GPSC in the Education Department and after due

deliberations over various issues and thorough

examination of the background of the case and various

orders passed by the High Court in various matters, final

as well as interim, and also keeping in view the legal

provisions and taking into consideration the

representations submitted by the ad hoc employees, the

Committee had come to the conclusions which are narrated

in paragraph 3 of the said additional affidavit-in-reply.

Accordingly, it was decided that the candidates duly

recommended by the GPSC shall be given appointments by

the State Government. It was decided that the

appointments may be given to the candidates recommended

by the GPSC in various subjects against clear vacancies

now worked out as per the UGC guidelines. It was also

decided to repatriate the ad hoc appointees working in

Government Colleges, back to their respective cadres in

which they were having their lien, subject to the

vacation of the stay order in this regard by the High

Court. It was noted that, out of 70 appointees having

such lien, 11 were selected by the GPSC and 4 could be

continued against clear vacancies available after

accommodating the GPSC selectees and ad hoc appointees.

But the repatriation could only be made if and when the

High Court vacated status quo orders. The Committee

further noted that, out of 341 lecturers who were

presently working on ad hoc basis, 77 were already

selected by the GPSC. It was found that, on account of

availability of vacancies as per permissible strength and

after accommodating GPSC selectees, several posts

continued to be available against which 122 ad hoc

lecturers could be continued. It was noted that, in a

few subjects, appointments were in excess of the

permissible posts which had been worked out as per the

UGC norms, and that the services of 22 ad hoc appointees

will have to be declared surplus with varying length of

service in different subjects, on the principle of "last

come first go". The Committee further noted that, for

giving appointment to all 335 GPSC selected candidates,

services of 120 ad hoc appointees will have to be

declared surplus forthwith. It was observed that, in

view of the government policy to start government

colleges in tribal talukas where there was no college

available, four new government colleges were started this

year, and similarly, some more colleges were likely to be

opened next year and keeping in view these aspects, the

Government had taken a lenient view with regard to

regularisation of ad hoc appointees which could be

considered by the State Government under Article 309 of

the Constitution, as a one-time measure. It was then

stated in the affidavit that, in view of the policy

decision taken by the High Level Committee, it was

decided to repatriate the ad hoc appointees working in

the government colleges, on lien, back to their

respective cadres subject to the vacation of the interim

orders of the High Court so as to enable the State to

implement its policy decision. It was also stated that,

pursuant to the said decision, order of appointment in

respect of 95 candidates selected by the GPSC were issued

on 27th August 2001 against clear vacancies. The

petitioner of Special Civil Application No. 2395 of 2001

who was selected by the GPSC was one such candidate who

was given appointment.

4.3 In the further affidavit dated 18th October 2001

in Special Civil Application No. 2992 of 2001, it was

stated that some of the petitioners had withdrawn their

petitions and they therefore could not approach the High

Court again, on the principle of res judicata. Statement

at Annexure "A" of that affidavit in reply showed the

details of such persons who had unconditionally withdrawn

their petitions.

5. In the group of Special Civil Application No.

841 of 1998 and 17 other matters, including those which

were filed in the year 1990 by the ad hoc lecturers who

were apprehending termination of their services on the

ground that the GPSC selected candidates would replace

them, the learned Single Judge, by his judgement and

order dated 12th May 1999, holding that in the

eventuality of the availability of the selected

candidates, these petitioners had no right to continue on

the post and immediately on joining of the selected

candidates, the respective petitioner would have to

relinquish the post, directed the GPSC to complete the

selection process in different subjects for the post of

lecturers within six months from the date of the receipt

of the order. The Court observed that ad hoc and

temporary appointments give rise to manifold litigations

and a sense of instability in service resulting in

frustration and dissatisfaction amongst the appointees.

It was observed that the time has come where the Court

has to take appropriate steps and measures to see that

the State of Gujarat, its functionaries and officers work

within the framework of the Constitution as well as to

see that, because of inaction or omission, unnecessary

and avoidable litigations may not come before the Court.

In Letters Patent Appeal No. 1057 of 1999 and cognate

appeals, these petitioners who had appealed against the

said order of the learned Single Judge, withdrew their

petitions without reserving any liberty to file fresh

petitions on the same cause of action. This is clear

from the order dated 29-9-1999 passed by the Division

Bench holding that the Letters Patent Appeals did not

survive and allowing the original petitioners to make a

fresh representation in the matter. On the basis of

withdrawal of these petitions, it was rightly urged that,

since no liberty was reserved by these ad hoc lecturers

who had filed the earlier petitions and are also amongst

those who had filed the present petitions from which

these appeals have arisen, the present petitions were not

maintainable at their instance on the same cause of

action. However, there were other ad hoc employees who

had filed the petitions for the first time and the same

questions arose even in their case. Therefore, having

regard to the general nature of the disputes involved, it

would not be appropriate to shun consideration of the

issues on any such technical ground and the decision that

would be taken would obviously apply to all the similarly

situated persons.

6. There was yet another group of petitions filed by

ad hoc appointees as lecturers being Special Civil

Application No. 2843 of 1971 and other cognate matters

which came to be decided by Hon'ble Mr. Justice

M.R.Calla on 9th March 2001. In all those petitions, a

grievance was raised by the ad hoc lecturers that

appointments were being given for a limited period till

the end of the academic term and though no candidates

were yet selected through the GPSC, they were not being

given the salary for the vacation period though they were

being re-engaged as ad hoc employees on the commencement

of the new academic term. In that petition, the learned

Single Judge issued certain directions in paragraph 15 of

the judgement which included the direction that the

services of such ad hoc employee shall not be terminated

until a regularly selected candidate was available for

appointment in the concerned subject. Direction No.

(ii) is material to be noticed in the present context and

therefore, it is reproduced hereunder:-

"(ii) If regularly selected candidates are

available, they will not be made to wait and such

regularly selected candidates shall be given

appointment and the ad hoc appointees shall have

to make room for them. Of course in doing so,

the government would follow the order of

seniority according to the length of the service

of the ad hoc appointees in the respective Branch

/ Speciality / Subject. In other words, amongst

the ad hoc appointees in a given subject or

speciality or branch, the candidate who was

appointed at the earliest point of time will be

the last candidate to be replaced."

6.1 The said judgement and order dated 9th March 2001

of the learned Single Judge has not been challenged and

therefore, the aforesaid directions remained operative

and binding.

6.2 In the present group of matters, namely, Special

Civil Application No. 2395 of 2001 and other petitions

which were filed in 2001, an order was made on 4th May

2001 by Hon'ble Mr. Justice M.S.Shah, taking note of the

earlier order of the Division Bench, dated 29-9-1999 in

Letters Patent Appeal No.1057 of 1999 and cognate

appeals, by which the ad hoc lecturers were allowed to

file representation to the Government while permitting

them to withdraw their petitions, gave a direction that

the State Government should decide the representations of

ad hoc lecturers or their association as early as

possible, in any event by 10-6-2001. The above

directions will have relevance on the question of

appreciating the government's appointing a High Power

Committee for considering the question and taking a

decision different from the one which was reflected in

the earlier affidavit of the government when it was

decided to undertake the process of regularising the ad

hoc lecturers and for that purpose, to refer the matter

to the GPSC. However, before that could be done, the

decision of the High Power Committee was taken by which

the direct selectees were to be given appointments,

replacing the ad hoc lecturers.

7. All the learned Senior Counsel appearing in these

Letters Patent Appeals have argued their respective

appeals and adopted each others arguments. The learned

counsel appearing in Letters Patent Appeal No. 818 of

2002 and 1818 of 2002 and the learned counsel appearing

in Letters Patent Appeal No. 492 of 2002, also adopted

those contentions, pointing out the individual facts of

their case. These contentions of the learned counsel in

all these appeals are as under :

[i] The matter should be viewed in context of higher

education and not ordinary government offices.

Therefore, interest of the student community

should be kept in mind while considering whether

these ad hoc lecturers who have put in several

years of service, should be regularised by

relaxing the rules.

[ii] Both the sides are innocent and it is not as if

the ad hoc lecturers are wanting in

qualifications. In fact, they have acquired

experience which gave them an edge over the fresh

GPSC recruits, and therefore, it would be in the

interest of the student community and education

system to regularise them.

[iii] The GPSC procedure was not started for more than

a decade and these ad hoc appointees were

continued in the public interest. Their

temporary appointments could have been made

without consultation of the GPSC only for a

period of one year, and therefore, their

continuance beyond one year of their initial

appointment should lead to an inference or

presumption that the requirement to consult the

PSC was deemed to have been relaxed under the

power of relaxation vested in the Government

under Rule 16 of the Gujarat Civil Services

Qualifications & Recruitment (General) Rules,

1967.

[iv] The non-initiation of consultation process for

recruitment for a decade resulted in breakdown of

consultation rule and therefore, it should be

assumed that the Government must be deemed to

have relaxed the recruitment rules and since

their initial appointment was by selection made

by select committee, they should be treated as

having been regularly recruited by the mode of

direct selection by such Committee instead of the

PSC.

[v] Thirty-three of the ad hoc lecturers were not

called by the GPSC on the ground that they were

age barred. They should have been given an

opportunity to compete by relaxing their age.

[vi] The State Government had held out a promise that

ad hoc appointees will be regularised and

therefore, it was estopped from taking a

different stand. There would be legitimate

expectation on the part of the ad hoc employees

that they will be continued and regularised.

Regularisation should be done, because, the

Government has created this situation.

[vii] Decisions of the Apex Court fall in three

categories. The Apex Court has, in some cases,

decided strictly according to the Rules and

quashed the appointments which are against the

rules. In some cases, while holding that the

rules of recruitment should be followed, the Apex

Court has not disturbed the appointments on

facts, and, in the third category, directions to

regularise the ad hoc employees by exercising

power to relax have been given. According to the

learned counsel, instead of relying on a

precedent of a particular case, the general trend

of all the precedents should be kept in mind and

a precedent should be evolved keeping in view the

law laid down by all these decisions.

[viii] The appointments of these ad hoc lecturers were

not illegal, but made by adopting an alternate

method devised by the State Government itself, by

its circular dated 21st December 1999, and

therefore, there was no back-door entry in the

appointments of these ad hoc lecturers. If an

appointment contrary to Rules is continued for

many years, the Court will presume that

relaxation power was exercised.

[ix] Consultation with the GPSC was not mandatory and

therefore, non-consultation will not vitiate the

appointment.

[x] In case of some ad hoc lecturers, they were held

to be ineligible on the basis of higher

qualifications prescribed under the amended

rules. It was argued that, in such cases, the

subsequent amendment in the rules could not have

been applied to such ad hoc lecturers who were

duly qualified when they were initially appointed

as per the then existing recruitment rules.

[xi] General parameters should be kept in mind while

deciding the case and these are; what the justice

require, what the law require, the public

interest involved, the nature of default

committed by the Government, and the innocent

character of the parties.

7.1 In support of their contentions, the learned

Senior Counsel for the appellants have relied upon the

following precedents :

[a] Decision of the Supreme Court in State of Haryana

v. Piara Singh, reported in AIR 1992 SC 2130 was

relied upon for the proposition that the persons

who are ad hoc or temporary employees have a

right to claim regularisation and the authorities

are under an obligation to consider their case

for regularisation in a fair manner keeping in

view the principles enunciated by the Court. It

will be noticed that while making this

observation, the Supreme Court also held that

blanket directions given for regularisation

cannot be sustained.

[b] Decision of the Supreme Court in Jakob M.

Puthuparambil v. Kerala Water Authority,

reported in AIR 1990 SC 2228 was cited to point

out that a direction was given for regularising

the services of the employees who were working on

the establishment for long spells and had the

requisite qualifications for the job. It was

observed that such employees should not be thrown

out but their services should be regularised as

far as possible. It would be noticed that this

decision was rendered in context of Rule 9(a)(i)

of the Kerala State & Subordinate Service Rules,

1958 in which it was provided that, where it is

necessary in the public interest, owing to an

emergency which has arisen to fill immediately a

vacancy in a post borne on the cadre of a

service, class or category and there would be

undue delay in making such appointment in

accordance with these rules and the Special

Rules, the appointing authority may appoint a

person, otherwise than in accordance with the

said Rules temporarily. It was held by the Court

in paragraph 15 of the judgement that the rule

was not intended to fill a large number of posts

in the service but only those which could not be

kept vacant till regular appointments were made

in accordance with the rules. But once the

appointments continued for long, the services had

to be regularised if the incumbent possessed the

requisite qualifications, as was done by sub-rule

2(e) of Rule 9. It was held that if the rule was

so interpreted, it seemed clear that the

employees who had been working on the

establishment since long and who possessed the

requisite qualifications for the job as obtaining

on the date of their employment must be allowed

to continue on their jobs and their services

should be regularised. It was held that if Rule

9(a)(i) was interpreted consistently with the

spirit and philosophy of the Constitution, which

was permissible to do, without doing violation to

the Rule, it followed that the employees who had

served on the establishment for long spells and

had the requisite qualifications for the job

should not be thrown out, but their services

should be regularised as far as possible.

[c] Decision of the Supreme Court in Government of

Orissa v. Hara Prasad Das, reported in AIR 1998

SC 375 was cited for the proposition that, mere

empanelment or inclusion of the name in the

selection list did not give the direct selectee a

right to be appointed, and that if the Government

decided not to make further appointments for a

valid reason, it could not be said that it acted

arbitrarily by not appointing those whose names

were included in the select list. Whether to

fill up a post or not was a policy decision and

unless it is shown to be arbitrary, it would not

be open to the Tribunal to interfere with such

decision of the government and direct to make

appointments. This matter arose from a petition

filed by those who had appeared in the selection

process. The petition was resisted by the

government on the ground that only six posts were

notified and no more posts can be filled up on

the basis of selection list.

[d] Decision of the Supreme Court in H.C.Puttaswamy

v. Hon'ble the Chief Justice of Karnataka High

Court, reported in AIR 1991 SC 295 was cited to

point out that the Supreme Court while holding

that the appointments made by the Chief Justice

of the High Court without consulting the GPSC

were not proper, issued a direction that, on

humanitarian ground, all such appointees should

be treated as regularly appointed with all

benefits of past service.

[e] Decision of the Supreme Court in Karnataka State

Private College Stop-Gap Lecturers' Association

v. State of Karnataka, reported in AIR 1992 SC

677, was cited to point out that, in a case where

teachers were appointed temporarily, by privately

managed colleges receiving grants-in aid, sought

regularisation of their services by invoking

principle of equitable estopple arising from

implied assurance due to their continuance, as

such, for years with a break of a day or two

every three months, the Supreme Court directed

that the services of such temporary teachers who

had worked as such for three years including

breaks shall not be terminated and they shall be

absorbed as and when regular vacancies arise. It

was also directed that if regular selections have

been made, the government shall create additional

posts to accommodate such selected candidates.

In that case, there was no question of

availability of any candidate selected as per the

Recruitment Rules framed under Article 309 of the

Constitution through the PSC.

[f] Decision of the Supreme Court in All Manipur

Regular Posts Vacancies Substitute Teachers'

Association v. State of Manipur, reported in AIR

1991 SC 2088, was cited to point out that, it was

observed by the Supreme Court that, if the direct

recruitment takes place on one hand and

substituted teachers are also directed to be

regularised subsequently, it would create an

enormous problem for the department to

accommodate both the categories of persons.

Taking all these factors into consideration, the

Court made an order, earlier, directing the State

Government to consider the case of regularisation

of the appellants before making direct

recruitment. The Court ordered that substituted

or ad hoc teachers who had put in five years of

service or more on the specified date shall be

regularised without pay by the D.P.C. and such

regularisation would be subject to their

possessing the required qualifications at the

time of their initial appointment. It was also

directed that those who had rendered less than

five years service on the said date, shall be

allowed to appear before the D.P.C. for

selection and those who are selected, shall be

regularised. It was also directed that the

services of those who did not appear before the

D.P.C. or could not be selected by the D.P.C.

could be terminated unless their services were

required for a further period.

[g] Decision of the Supreme Court in State of

Karnataka v. B. Suvarna Malini, reported in AIR

2001 SC 606 was cited to point out that, in a

case where the lecturers appointed by way of

stop-gap arrangement had put in 10 to 20 years of

service, the Court observed that such cases

involve not only a question of law, but also

human problem inasmuch as these part-time

lecturers had served in different colleges for a

long period and treated as regular servants, and

they will not be able to get themselves engaged

anywhere else. Moreover, their experience in

teaching will be a great loss to the student

community if they were removed. Reliance was

placed on paragraph 9 of the judgement in which

it was observed that, though the selection of

such part-time lecturers was not made by the

Public Service Commission, yet there was a

process of selection and it appeared that

unqualified people were not appointed as

part-time lecturers. Part-time lecturers having

been formed a class by themselves and for some

reason or the other, they having been deprived of

the benefits of the earlier directions of the

Court on account of inaction on the part of the

State Government, the matter was re-examined by a

Committee of Experts as to how best their

services could be utilized without diluting the

quality of teaching. Earlier in the judgement,

it was noticed that High Powered Committee

considered the problems of the part-time

lecturers in great detail and, bearing in mind

the relevant decision on the question, made the

recommendation for their absorptions. It was

recommended that special recruitment rules will

have to be framed by the State Government in

exercise of powers conferred on it by the

Karnataka State Civil Services Act, 1978 for the

purpose of absorption. Section 8 of that Act

gave rule-making powers to make rules to carry

out the purposes of the Act. The absorption

rules were framed in exercise of these

Legislative powers. The Court held that, these

absorption rules were made to solve human

problems and that the High Court committed an

error in striking them down, because, they were

validly made after putting them to objection to

the general public and consulting the PSC before

being put before the State Legislature to have

its concurrence. It was held that it is not

that, in every case, the Court would be justified

in striking down the process of absorption or

requisition, more so when such absorption has

been made as a legislative measure and that also

as a one time measure. In the present case, no

such attempt is made for regularising the ad hoc

employees by resorting to such statutory powers.

[h] Decision of the Supreme Court in Narendar Chadha

v. Union of India, reported in (1986) 2 SCC 157

was cited to point out that, the Supreme Court

held that, where persons have been allowed to

function in higher posts for 15 to 20 years with

due deliberation, it would be certainly unjust to

hold that they have no sort of claim to such

posts and could be reverted unceremoniously or

treated as persons not belonging to the Service

at all, particularly where the Government is

endowed with the power to relax the rules to

avoid unjust results.

[i] Decision of the Supreme Court in Shainda Hasan v.

State of Uttar Pradesh, reported in 1993 SCC 48

was cited to pointed out that, while holding that

the High Court had rightly held that the

relaxation granted by the selection committee to

be arbitrary, and that in the absence of

statutory rules providing power of relaxation,

the advertisement must indicate that the

selection committee / appointing authority has

the power to relax the qualifications, the

Supreme Court observed that, asking the appellant

to leave the job after 16 years would be doing

injustice to her. In paragraph 8 of the

judgement, it is stated that the case was taken

up in chambers on April 20, 1990 when the learned

counsel for the State after obtaining

instructions from the University, agreed with the

Court that asking the appellant to leave the job

after 16 years would be doing injustice to her.

Accordingly, the directions were issued to grant

necessary approval to the appointment of the

appellant as the Principal w.e.f. the date she

was holding the said post.

[j] Decision of the Supreme Court in Dr. A.K. Jain

v. Union of India, reported in 1987 (Supp) SCC

497, was cited to point out that, in a case where

the petitioners who were still ad hoc doctors on

the zonal railways, were those doctors who either

failed to appear in the combined medical services

examination held by the UPSC or after appearing

had failed to get regularised in accordance with

the prescribed rules and regulations for regular

appointments, and their services had to be

terminated and as such, there had been neither

any arbitrary nor illegal action on the part of

the respondents, nor any violation of the

fundamental rights guaranteed by Articles 14 and

16 of the Constitution, the Supreme Court gave a

direction after hearing the counsel for both the

sides, inter alia, to the effect that the

services of doctors appointed on ad hoc basis

upto 1st October 1984 shall be regularised in

consultation with the UPSC on the evaluation of

their work and conduct on the basis of their

confidential reports in respect of the period

subsequent to October 1, 1982, which evaluation

was to be done by the UPSC. The Court dismissed

the petitions of such medical officers who were

appointed subsequent to October 1, 1984 with

certain directions.

[k] Decision of the Supreme Court in G.S.Lamba v.

Union of India, reported in (1985) 2 SCC 604 was

cited to point out that, in paragraph 26 of the

judgement, the Supreme court held that, once the

power to relax is given, mandatory rule exists

and an action in derogation of the rule has been

repeatedly taken year after the year, it would be

a permissible inference that the action was taken

in relaxation of the rule for which the power

exists in rule 29(a) of the Indian Foreign

Service Branch "B" (Recruitment, Cadre, Seniority

& Promotion) Rules, 1964. It was held that, to

hold otherwise would be to come to a rather

disconcerting conclusion that a body like the

Government of India acted deliberately in

contravention of the mandatory rule from year to

year. It would, as far as possible, be proper to

avoid such an inference unless it is inescapable.

Rule 29(a) conferred power to relax any of the

provisions of the Rules of 1964 and in context of

the quota rule, the Court held, in paragraph 27

of the judgement, that, assuming that there was a

failure to consult the the Union Public Service

Commission before exercising the powers to relax

the mandatory quota rule and further assuming

that the posts in the integrated grade II and III

were within the purview of the Union Public

Service Commission and accepting for the

time-being that the Commission was not consulted

before the power to relax the rule was exercised,

yet the action taken would not be vitiated, nor

would it furnish any help to Union of India which

itself cannot take an advantage of its failure to

consult the Commission.

[l] Decision of the Supreme Court in Baij Nath Sharma

v. Hon'ble Rajasthan High Court, reported in

(1998) 7 SCC 44 was cited to point out that it

was held that the second petition filed after

withdrawing the petition was not barred by

principle of res judicata. It will be noticed

from paragraph 5 of the judgement that when the

earlier petition was withdrawn, liberty was

granted to the petitioner to file another

petition "if occasion arises".

[m] Decision of the Supreme Court in B.C.Chaturvedi

v. Union of India reported in (1995) 6 SCC 749

was cited to point out that, in the concurrent

judgement of Justice Hansaria in paragraph 20, it

was observed that, it would be wrong to think

that other Courts are not to do complete justice

between the parties. It was observed that it may

be remembered that the framers of the

Constitution permitted the High Courts to even

strike down a Parliamentary enactment. The High

Court would be within its jurisdiction to modify

punishment / penalty by moulding the relief which

power it undoubtedly had.

[n] Decision of the Supreme Court in Dr. M.C.

Bindal v. R.C.Singh, reported in AIR 1989 SC 134

was cited to point out that it was observed in

paragraph 12 of the judgement that, it was well

settled legal position that the duty to consult

the Commission in the matter of appointment to

civil posts by the government is not mandatory,

but directory, and as such, the absence of

consultation with the State Public Service

Commission does not render any appointment made

by the government in civil posts invalid or

illegal. The Supreme Court also, however, held

in paragraph 12 of the judgement that, it cannot

also be contended that since the duty to consult

the Public Service Commission in the matter of

making appointments to civil services of the

State was directory and not mandatory, the

appointment by the government cannot be question

or interfered with by the Court. In that case,

candidature for the post in question had already

been withdrawn by the Public Service Commission

and the Court held that, therefore, the question

of validity or invalidity of the appointment to

the said post was no longer open to be considered

by the Court.

[o] Decision of the Supreme Court in Rabinarayan

Mohapatra v. State of Orissa, reported in (1991)

2 SCC 599 was cited to point out that, where the

school teachers were working for almost four

years, the respondents were directed to treat the

appellant as regularly appointed teachers. It is

pointed out that the Court quoted with approval

the observations made in Rattan Lal v. State of

Haryana reported in AIR 1987 SC 478 in which it

was observed that the Government appeared to be

exploiting the situation where the teachers who

constituted bulk of the educated unemployed were

compelled to accept the job on an ad hoc basis

with miserable conditions of service. It was

observed that the policy of ad hocism followed by

the Government for a long period had led to the

breach of Article 14 and Article 16 of the

Constitution, and that the State Government was

expected to function as a model employer. The

Court deprecated the policy of the State

Government under which ad hoc teachers were

denied the salary and allowances for the period

of the summer vacation by resorting to the

fictional breaks.

[p] Decision of the Supreme Court in I.J.Divakar v.

Government of Andhra Pradesh, reported in (1982)

3 SCC 341 was cited for the proposition that,

inviting the applications for a post does not by

itself create any right to the post in the

candidate who in response to the advertisement

makes an application. His application only makes

him eligible for being considered for the post.

It was held that the temporarily appointments

which were made in that case were within the

power of the Government under Rule 10(a)(i)(1) of

the A.P. State and Subordinate Services Rules,

and that, in the circumstances of the case, it

had become compelling necessity to regularise

services of such temporary servants for peace and

harmony in service. It was held that the action

of the government was justified and was in

consonance with the Rules. However, on equitable

considerations and in order to do justice between

the parties and not to leave the appellants,

fresh young engineering graduates, in lurch, the

Court directed that the Commission shall proceed

to finalise the list of selection on the basis of

the viva voce tests conducted and marks assigned

and forward the same to the Government within two

months.

[q] Decision of the Supreme Court in Gopal Krushna

Rath v. M.A.A. Baig, reported in AIR 1999 SC

2093 was cited for the proposition that when the

selection process has actually commenced and the

last date for inviting application is over, any

subsequent change in the requirement regarding

qualifications by the University Grant Commission

will not affect the process of selection which

has already commenced, otherwise it would involve

issuing a fresh advertisement with the new

qualifications.

[r] Decision of the Supreme Court in Gujarat State

Deputy Executive Engineers' Association v. The

State of Gujarat, reported in J.T. 1994 (3) SC

559 was cited to point out that, where the

direction was given to operate and implement the

revised select list by the High Court, the

Supreme Court in paragraph 5 of its judgement

held that the High Court could not have given

direction to appoint direct recruits from the

waiting list prepared in 1980 in the vacancy

which according to the High Court should have

been available as that would amount to

interfering with discretion of Government which

as a matter of policy may decide to fill lesser

vacancies.

[s] Decision of this Court in D.D.Upadhyaya v. State

of Gujarat reported in 39(3) GLR 2264 was cited

to point out that the government had taken up a

stand in that case that it had a power to

regularise the service by resorting to Rule 16 of

the General Rules of 1967. In that case, it was

urged on behalf of the state Government that the

Court may take humanitarian and sympathetic

approach and keeping in view the long services of

the respondent, it may not interfere in the

matter. The learned Single Judge, however,

negatived this contention by holding that the

requirement of "interest of public services" was

altogether missing in the case and, exfacie, it

was a simple and plain resort to exercise of

power under Rule 16 of the Rules of 1967 for the

purpose other than the interest of public

services.

[t] Decision of the Supreme Court in N.S.K. Nayar v.

Union of India, reported in 1991 (6) SLR 155 was

cited to point out that it was held, in context

of Rule 27(b) of the Telegraph Engineering

Services (Class I) Rules, 1965, that the object

of the Rule was to provide a source of

appointment to meet an administrative exigency of

short tenure and it could never be the intention

of the framers of the rule to permit the

appointments thereunder to go on for 10 to 15

years. It was held that the appointments for

such a long period cannot be considered to be

purely temporary or officiating. In paragraph 7

of the judgement, it was held that, while doing

justice to the petitioners, the Court did not

wish to cause any prejudice to the direct

recruits. It was held that the promotee officers

who had worked in STS for a continuous period of

five years and were holding the posts, shall be

deemed to be regular members of Group "A" service

in STS.

[u] Decision in Shanti Devi v. The State of Haryana,

reported in 1988 (1) SLR 483 (P&H), was cited to

point out that, in a case where the ad hoc

appointees held the posts for sufficiently long

period, it was held that they formed a separate

class, and that the power of relaxing the rule

were validly exercised in their favour.

[v] Decision of the Supreme Court in Surya Narain

Yadav v. Bihar State Electricity Board, reported

in 1985 (2) SLR 479 was cited to point out that,

where trainee engineers of State Electricity

Board were initially appointed on probation but

temptation of being absorbed permanently was

given from time to time, and they continued to

work since long, the Supreme Court in paragraph 8

of the judgement held that the Board was bound to

regularise the appointments of the appellants who

had been taken as trainee engineers initially and

had continued to be in the employment of the

Board.

[w] Decision in J.J.Muralidhara Rao v. The State of

Andhra Pradesh, reported 1971(1) SLR 523 (AP) was

cited to point out that it was held that the new

rules under which the petitioner who had been

serving for nearly ten years did not possess

qualification, could not have been applied to him

as the government was really estopped to say that

his services cannot be regularised.

[x] Decision of the Supreme Court in Dr. Ami Lal

Bhat v. State of Rajasthan, reported in (1997) 6

SCC 614 was cited to point out that it was held

in paragraph 11 that the power of relaxation was

required to be exercised in public interest in a

given case. The Court upheld the validity of the

rules concerned relating to the cut off date

being fixed with reference to 1st of January of

the year following the rules.

[y] Decision of the Supreme Court in Dr. (Mrs.)

Meera Massey v. Dr. S.R.Mehrotra, reported in

(1998) 2 SLJ 178 was cited to point out that,

while deprecating the situation brought about by

the University by deviation from the normal mode

of appointment, the Court upheld the appellant's

appointment as lecturer.

[z] Decision in V.M.Sikka v. Union of India reported

in (1986) 1 SLJ 330 was cited for pointing out

that, in paragraph 5 of the judgement, it was

held that the vacancy which occurred prior to the

amended rules would be governed by the old rules

and not by the amended rules.

[z-1] Decision of the Supreme Court in Chandraprakash

Madhavrao Dadwa v. Union of India, reported in

(1998) 8 SCC 154 was cited for the proposition

that additional qualifications and job

requirements could be applied prospectively only.

8. The learned Advocate General contended that there

was never any assurance given by the appointing authority

that the ad hoc lecturers will be regularised or made

permanent. They were appointed only by way of a stop-gap

local arrangement till the availability of direct

recruits through the PSC. There can be no estopple

against statutory rules on the basis of negotiations

reflected in the minutes on which reliance is sought to

be placed. It was stated that no order was made on the

basis of such minutes under Article 166 of the

Constitution and therefore, no decision which could be

implemented, was taken. It was then contended that the

procedure of regular recruitment through the PSC was

never followed in respect of these ad hoc lecturers and

there was no decision made to relax the recruitment rules

or the general rules while appointing these ad hoc

lecturers or while continuing them thereafter on ad hoc

basis. It was submitted that it is only because of the

interim orders which were obtained by the ad hoc

lecturers for being continued until the availability of

the GPSC candidates that they came to be continued as ad

hoc employees for a long period, which cannot create any

equity in their favour or against the Government. It was

also contended that the recruitment rules for the post in

question were being reviewed and therefore, the process

of recruitment could not start. In this regard, he

referred to the correspondence between the GPSC and the

State Government, copies of which were placed on record.

It was then contended that the requirements of

consultation was not dispensed with and the Government

could have made ad hoc appointments only for one year,

and therefore, according to him, there was a lapse on the

part of the State Government in not consulting the GPSC

before continuing such ad hoc appointees for more than

one year, as was required to be done under the rules and

regulations. He, however, argued that this did not give

any right to such ad hoc lecturers to continue in the

post, notwithstanding the availability of the GPSC

candidates. It was contended that the Government cannot

legitimately continue these ad hoc lecturers without

consultative process with the PSC and contrary to the

rules, and they have to be replaced by the regular GPSC

selectees. It was also argued that there was neither any

regularisation, nor any deemed regularisation or deemed

relaxation took place, and that, no mandamus could be

issued for regularising these ad hoc lecturers in

contravention of the recruitment rules. Such ad hoc

lecturers could be continued only in that ad hoc capacity

till the availability of the regular recruits or till

they get regularly appointed. The Government can, at

best, consider only relaxing of age limit in consonance

with the recruitment rules and the general rules for

allowing them chances to compete as may be permissible as

per the rules. It was also submitted that many of the

appellants had withdrawn their earlier petitions and

filed fresh petitions on the same cause of action, though

no liberty was reserved when the Letters Patent Appeals

were disposed of, on withdrawal of those petitions.

Explaining the different stands taken in the affidavits

filed on behalf of the State Government, the learned

Advocate General contended that, though initially on the

representations of the ad hoc lecturers, meetings were

held and it was thought of trying to continue them by

making a reference to the GPSC, that decision came to be

changed in view of the directions given in paragraph

15(ii) by the Court on 9th March 2001 in Special Civil

Application No. 2843 of 1991 and cognate matters, and

also on a comprehensive consideration of the

representations of the ad hoc employees as well as the

rules and regulations applicable to the post and the

Constitutional provisions.

8.1 The learned counsel who appeared for the direct

recruits, who are respondents in Letters Patent Appeal

No. 485 of 2002, adopted the contentions raised by the

learned Advocate General, pointing out that the

appointment orders of all the direct recruits have

already been issued.

8.2 The learned Advocate General, in support of his

arguments, referred to the following decisions :

[a] Decision of the Supreme Court in Commissioner,

Assam State Housing v. Purna Chandra Bora,

reported in (1998) 6 SCC 619 was cited for the

proposition that the out-going temporary

appointee cannot challenge regular appointments

to benefit himself. In that case, the first

respondent was appointed temporarily and until

appointment of Accounts Assistant was made on a

regular basis, and he was discharged from service

on the day on which five persons were appointed

after selection.

[b] Decision of the Supreme Court in State of M.P.

v. Dharam Bir, reported in (1998) 6 SCC 165 was

cited for the proposition that when the post was

not filled up on a regular basis in accordance

with the Rules, it could be treated by the State

to be vacant. The Court held that whether a

person holds a particular post in a substantive

capacity or is only temporary or ad hoc is a

question which directly relates to his status.

It all depends upon the terms of appointemnt. It

is not open to any government employee to claim

automatic alteration of status unless that result

is specifically envisaged by some provision in

the statutory rules. Unless, therefore, there is

a provision in the statutory rules for alteration

of status in a particular situation, it is not

open to any government employee to claim a status

different than that which was conferred upon him

at the initial or any subsequent stage of

service.

[c] Decision of the Supreme Court in Keshav Narayan

Gupta v. Jila Parishad, Shivpuri (MP), reported

in (1998) 9 SCC 78 was cited to point out that,

in a case where the approval of the Collector was

not obtained in terms of resolution for regular

appointment, and where no applications were

invited for the post and initially only temperory

appointments for limited period were sanctioned

by the Collector, it was held that it would be

difficult to consider such appointments as

regular.

[d] Decision of the Supreme Court in State of Orissa

v. Dr. Pyari Mohan Misra, reported in AIR 1995

SC 974 was cited to point out that, in paragraph

4 of the judgement, it was held that mere

prolonged continuous ad hoc service does not

ripen into a regular service to claim permanent

or substantive status. Such appointee shall

remain on ad hoc basis until further orders.

[e] Decision of the Supreme Court in Dr.Surinder

Singh Jamwal v. State of Jammu & Kashmir,

reported in AIR 1996 SC 2775 was cited to point

out that, it was held by the Supreme Court

following its earlier decision in J. & K.

Public Service Commission v. Dr. Narinder

Mohan, reported in (1994) 2 SCC 630, that under

the Rules, the regular recruitment to the posts

shall be made by the Public Service Commission

and consequently, the ad hoc appointments would

be only temporary appointments dehors the Rules,

pending regular recruitment without conferring

any right to regularisation of service.

[f] Decision of the Supreme Court in E. Ramakrishnan

v. State of Kerala, reported in (1996) 10 SCC

565 was cited to point out that the Court,

rejecting the contention canvassed on the basis

of Piara Singh's case that in view of the fact

that the petitioners had been continued for more

than 14 years, they were required to be

regularised on the ground that the posts were to

be filled up through selection by the PSC

Recruitment Norms, and therefore, the candidates

who were found eligible and selected and

recommended for appointment by the PSC, were

required to be appointed. In paragraph 3 of the

judgement, it was held that the Government cannot

take any decision contrary to the Constitution to

regularise the services of the candidates dehors

the recruitemnt rules and the statutory process

for selection through the PSC, in view of the

provisions of Article 320 of the Constitution.

[g] Decision in case of J & K Public Service

Commission v. Dr. Narinder Mohan, reported in

AIR 1994 SC 1808, was cited for the proposition

that the executive power under Article 162 of the

Constitution could be exercised only to fill in

the gaps but such instructions cannot and should

not supplant the law, but would only supplement

the law. It was held that, having made the rules

governing recruitment, the executive cannot fall

back upon its general power under Article 162 to

regularise the ad hoc appointments under the

Rules. It was held that the Rule 9(3) of the J &

K Medical Education (Gazeted) Services

Recruitemtn Rules (1979), empowered only to relax

the qualification of age in particular exigencies

which cannot be called in aid to relax the rules

of recruitment. It was held that the Government

had no power to make regular appointment under

the Rules without selection by the Public service

commission under Article 133(1) of the J. & K.

Constitution.

[h] Decision of the Supreme Court in Dr.M.A.Haque v.

Union of India, reproted in (1993) 2 SCC 213 was

cited to point out that, in paragraph 9 of the

judgement, the Supreme Court held that, we cannot

lose sight of the fact that the recruitment rules

made under Article 309 of the Constitution have

to be followed strictly and not in breach. If a

disregard of the rules and the by-passing of the

Public Service Commissions are permitted, it will

open a back-door for illegal recruitment without

limit. The Supreme Court noted that, of late, it

had witnessed a constant violation of the

recruitment rules and a scant respect for the

constitutional provisions requiring recruitment

to the services through the Public Service

Commissions. It was observed;

"It appears that since this Court has in

some case permitted regularisation of the

irregularly recruited employees, some

governments and authorities have been

increasingly resorting to irregular

recruitments. The result has been that

the recruitment rules and the Public

Service Commissions have been kept in

cold storage and candidates dictated by

various considerations are being

recruited as a matter of course."

[i] Decision of the Supreme Court in Dr.(Mrs.) Meera

Massey v. Dr. S.R.Mehrotra, reported in AIR

1998 SC 1153 was cited for the proposition that

selection of teacher has not to be on minimum

eligibility but best available from a larger

sphere. The Court observed that the selection of

teacher is not to be done from the sphere of ad

hoc or stop-gap appointees. Such course will

damage the standard of the University.

[j] Decision of the Supreme Court in Dr. Arundhati

Ajit Pargaonkar v. State of Maharashtra reported

in AIR 1995 SC 962 was cited to point out that,

in paragraph 7 of the judgement, the Supreme

Court observed that the claim of the appellant,

that she having worked as lecturer without break

for nine years on the date the advertisement was

issued, she should be deemed to have been

regularised, did not apepar to be well founded.

It was held that eligibility and continuous

working for howsoever long period should not be

permitted to over-reach the law, and that

requirement of rules of selection through the

Public Service Commission cannot be substituted

by humane consideration. It was held that law

must take its course and consequently the

appellant was not entitled to claim that she

should have been deemed to have been regularised

as she had been working without break for nine

years.

[k] Decision of the Supreme Court in Santosh Kumar

Verma v. State of Bihar, reported in AIR 1997 SC

975 was cited for the proposition that the

mandamus cannot be issued to regularise the

services made in contravention of law. In that

case, the appointments of the appellants were for

a temperory tenure and they had sought for

regularisation, which was negatived by the Public

Service Commission. The posts were within the

purview of the Public Service Commission and

therefore, the Government had sought the

concurrence of the Public Service Commission and

the Public Service Commission had not concurred.

It was held that the Commission rightly did not

concur with the request made by the Governemnt

and therefore, any regularisation in violation of

the recruitment to be made by the Public Service

Commission was in contravention of the law.

[l] Decision of the Supreme Court in The

Commissioner, Corporation of Madras v. Madras

Corporation Teachers' Mandram, reported in AIR

1997 SC 2131 was cited for the proposition that

the creation of post or prescribing qualification

for post was a matter of executive policy of the

Government, and that the Administrative Tribunal

cannot give directions for creation of post or to

prescribe minimum qualifications for the post.

[m] Decision of a Division Bench of this Court in

Bhartiben Nanubhai Balsara v. State of Gujarat,

reported in XXX(1) GLR 659 was cited for the

proposition that, any appointment to any post

dehors the Rules or without being selected as per

statutory Rules should be held as irregular and

invalid, and that the irregularly appointed

employees cannot assert right to hold the post or

continue in service.

[n] Decision of the learned Single Judge of this

Court in case of Maisuria Mahendra Bhagwandas v.

State of Gujarat, reported in XXXI (2) GLR 719

was cited for the proposition that when the

appointments were made purely on temporary and ad

hoc basis, with a specific condition that such

appointees will have to vacate the post, on

availability of the GPSC selectees, it was not

open for such appointees to make any grievance

against their termination on the availability of

the GPSC selectees.

[o] Decision of this Court in Mukesh B. Desai v.

State of Gujarat, reported in 1997 (3) GCD 645

was cited to point out that, where the

appointment order clearly stipulated that the ad

hoc appointment of the appellant was till a

candidate was regularly selected by the GPSC or

for a period of 11 months, whichever was earlier,

it was held that, assuming that he was allowed to

continue even after the period of 11 months had

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.

[p] Decision of the Supreme Court in State of Haryana

v. Piara Singh, reported in AIR 1992 SC 2130 was

cited to point out the problems that according to

the Apex Court would arise if blanket directions

are issued for regularising the ad hoc or

temporary employees. The Supreme Court held

that, in the event of such directions being

given, there would be no post left for regularly

selected persons even if they are selected.

Moreover, two persons cannot hold the same post

on a regular or permanent basis. If such ad hoc

employee is to be regularised, it would not only

mean foreclosing appointment of a regular

qualified person, it would also mean appointment

of an unqualified person. It was also held that

issuing general declaration of indulgence was not

part of Court's jurisdiction. It is further held

it is for the respective Governments to consider

the feasibility of giving them appropriate

relief, particularly in cases where persons have

been continuing over a long number of years, and

were eligible and qualified on the date of their

ad hoc appointment and further whose record of

service was satisfactory. The Supreme Court also

held that the appointment of the regularly

selected candidate cannot be withheld or kept in

abeyance for the sake of such an ad hoc /

temporary employee. The Supreme Court also

observed that the persons continuing in service

over a number of years have a right to claim

regularisation and the authorities were under an

obligation to consider their case for

regularisation in a fair manner, and that the

proper course would be that each State prepares a

scheme, if one is not already in vogue, for

regularisation of such employees consistent with

its reservation policy, and if a scheme is

already framed, the same may be made consistent

with the observations made in the judgement so as

to reduce avoidable litigation. It was observed

that each government or authority has to devise

its own criteria or principles for regularisation

having regard to all the relevant circumstances,

keeping in view the observations made in the

judgement.

[q] Decision of the Supreme Court in P. Ravindran v.

Union Territory of Pondicherry, reported in

(1997) 1 SCC 350 was cited for the proposition

that the Public Service Commission having been

entrusted with the Constitutional duty to select

suitable candidates by inviting applications from

the open market, every candidate has a

fundamental right to seek consideration and for

selection through open competition. It was held

that the process of recruitment through the

Commission as envisaged under the Cosntitution

cannot be bypassed by issuing directions for

regularisation of services of the ad hoc persons

who had come to services through back-door entry.

[r] Decision of the Supreme Court in Keshav Chandra

Joshi v. Union of India, reported in 1992 Supp.

(1) SCC 272 was cited to point out that, in

paragraph 24 of the judgement, it was held that

ad hoc or fortuitous appointments on a temporary

or a stop-gap basis cannot be taken into account

for the purpose of seniority, even if the

appointee was subsequently qualified to hold the

post on a regular basis. It was observed that,

in order do justice to the promotees, it would

not be proper to do injustice to the direct

recruits. The ratio of direct recruits case

{(1990) 2 SCC 715] was culled out in paragraph 25

of the judgement, as per which, where the initial

appointment was only ad hoc and not according to

rules and made as stop-gap arrangement, the

officiation in such posts cannot be taken into

account for considering the seniority.

[s] Decision in State of West Bengal v. Aghore Nath

Dey, reported in J.T. 1993 (2) SC 598 was cited

to point out that, in paragraph 20 of the

judgement, it was held that, Narendra Chadha's

case cannot be construed to apply to cases where

the initial appointment was not according to

rules.

[t] Decision of the Supreme Court in Dinkar Anna

Patil v. State of Maharashtra, reported in AIR

1999 SC 152 was cited to point out that, in

paragraph 17 of the judgement, in context of the

Rules framed by the Government of Maharashtra

under Article 309 of the Constitution, it was

held by the Supreme Court that, it would give

unbridled power to the government to dispense

with the consultation with the Maharashtra Public

Service Commission, if the word "may" used in

Rule 4 was held to be directory and it would

render the very object of consultation with the

MPSC, whereever necessary, nugatory. The Supreme

Court held that the word "may" must mean "shall"

and therefore, consultation was mandatory. The

Supreme Court followed the decision in

Keshavchandra Joshi v. Union of India, reported

in 1992 Supp. (1) SCC 272, in which, dealing

with the interpretation of Rule 27 of U.P.

Forest Service Rules, 1952, the Court construed

the word "may" used in Rule 27. It was held that

the word "may" has to be read as "shall" and

therefore, consultation was mandatory.

[u] Decision of the Supreme Court in M/s Upadhyaya &

Co. v. State of U.P., reported in AIR 1999 SC

509 was cited for the proposition that when the

party had withdrawn the Special Leave Petition

filed to challenge the order of the High Court in

writ petition without seeking permission to file

fresh SLP, he cannot file another SLP challenging

the same order again.

[v] Decision of the Supreme Court in Executive

Officer, Arthanareswarar Temple v. R.Sathya

Moorthy, reported in AIR 1999 SC 958 was cited to

point out that, in paragraph 14 of the judgement,

it was held that, if an appeal was preferred by

an unsuccessful plaintiff against the judgement

of the trial Court dismissing the suit and if the

plaintiff appellant wanted to withdraw not only

the appeal but also the suit unconditionally,

then such a permission so far as the withdrawal

of the suit concerned can be granted if there was

no question of any adjudication on merits in

favour of the defendants by the trial being

nullified by such withdrawal.

[w] Decision of the Supreme Court in State of

Maharashtra v. Sanjay Thakre, reported in 1995

Supp. (2) 407 was cited for the proposition that

appointment of promotees in excess of quota was

violative of Rules and could not count for the

purpose of seniority.

[x] Decision in Dinkar Patil v. State of

Maharashtra, reported in J.T. 1998 (7) SC 513

was cited for the proposition that placement of

direct recruits vis-a-vis the promotees will have

to be determined on the basis of date of

regularisation and excluding the period of

fortuitous appointments.

[y] Decision of the Supreme Court in The Direct

Recruit Class II Engineering Officers'

Association v. State of Maharashtra, reported in

AIR 1990 SC 1607 was cited for the proposition

that, where the initial appointment is only ad

hoc and not according to the rules and made as a

stop-gap arragement, the officiation in such post

cannot be taken into account for considering the

seniority. (See paragraph 44 of the judgement).

[z] Decision of the Supreme Court in U.P.

Secretariat U.D.A. Association v. State of

U.P., reported in (1999) 1 SCC 278 was cited for

the proposition that, merely because temporary

appointment or promotion is made, seniority

cannot be counted from the date of officiation

except when the appointemnt was made in

accordance with rules.

[aa] Decision of the Supreme Court in Maharashtra

Vikrikar Karamchari Sangathan v. State of

Maharashtra, reported in (2000)2 SCC 552, was

cited to point out that, where it was contended

on behalf of the appellants that some of them had

put in more than 17 years of service, when a few

of direct recruits were either schooling and / or

not born in the cadre, and that if the appellants

were pushed down, it would cause great hardship

to them, the Supreme Court, in paragraph 26 of

the judgement, negatived that contention on the

ground that, if there is a patent violation of

the quota rule, the result must follow and the

appellants who remained in the office for all

these years cannot take the advantage of such

situation.

[bb] Decision of the Supreme Court in State of Kerala

v. A.Laxmikutty reported in AIR 1987 SC 331 was

cited for the proposition that the High Court

could not issue a writ of mandamus directing the

State Government to appoint person recommended by

the High Court as District Judge.

[cc] Decision of the Supreme Court in Sarguja

Transport Service v. State Transport Appellate

Tribunal, reported in AIR 1987 SC 88 was cited

for the proposition that a petitioner after

withdrawing a writ petition filed by him in the

High Court under Article 226 without the

permission to institute a fresh writ petition

cannot file a fresh writ petition in respect of

the same cause of action in the High Court. (See

para 9 of the judgement).

[dd] Decision of the Supreme Court in State of Bihar

v. Kripalu Shanker, reported in AIR 1987 SC 1554

was cited for the proposition to the effect that,

an opinion becomes a decision of the Government

only when it must be communicated to the person

concerned, and that notings in a "notes file",

not only of officers but even that of a minister

will not constitute an order to affect others

unless it is done in accordance with Articles

166(1) & (2) and communicated to the person

concerned. (See para 18 of the judgement).

9. The entire controversy centres around the issue

whether the ad hoc lecturers who were locally appointed

until regular Public Service Commission candidates were

available and were continued as ad hoc without

consultation with the Public Service Commission and

dehors the recruitment rules, should be deemed to have

been or should be regularized in the post by virtue of

their having been continued for long years,

notwithstanding the availability of the Public Service

Commission selectees.

10. Public Service Commissions are constitutional

entities created by Article 315(1) of the Constitution of

India. The provisions of Chapter II of Part XIV of the

Constitution dealing with Public Service Commissions

indicate the importance that the Constitution seeks to

attach to the independence and the utility of the Public

Service Commissions in the realm of the services under

the Union and the States.

11. The principal function of the Public Service

Commissions is to conduct examinations for appointment to

Union and State Services as provided by Article 320(1) of

the Constitution. Article 320(3), inter alia, provides

that the Public Service Commissions shall be consulted,

(a) on all matters relating to methods of recruitment to

civil services and for civil posts, and (b) on the

principles to be followed in making appointments to civil

services and posts and in making promotions and transfers

from one service to another and on the suitability of

candidates for such appointments, promotions or

transfers. Proviso to clause (3) of Article 320

empowers, inter alia, the Governor as respects services

and posts in connections with the affairs of the State,

to make regulations specifying the matters in which

either generally, or in any particular class of case or

in any particular circumstances, it shall not be

necessary for a Public Service Commission to be

consulted. Under clause (5) of Article 320, such

regulations made under the proviso to clause (3) are

required to be laid before the Legislature of the State.

It is thus left to the State concerned to specify, by

such regulations, the matters in which it shall not be

necessary to consult the Public Service Commission.

11.1 The Government of Gujarat, in exercise of the

powers conferred by the proviso to clause (3) of Article

320 of the Constitution, made the Gujarat Public Service

Commission (Exemption from Consultation) Regulations,

1960. As per Regulation 3 thereof, it shall not be

necessary to consult the Gujarat Public Service

Commission in any of the matters specified in paragraphs

(a) and (b) of clause (3) of Article 320 of the

Constitution in respect of the posts which are specified

in the Schedule to these Regulations and temporary

appointments to all other posts and services for a period

not exceeding or not likely to exceed one year. However,

if such temporary appointment involves any relaxation of

the recruitment rules which are finalised in consultation

with the Commission, it is necessary to consult the

Public Service Commission, as mentioned below the said

Regulation 3. The service and its posts in the cadre of

Lecturer, Gujarat Education Service, Class II (Collegiate

Branch), admittedly are not exempted from the purview of

the Public Service Commission under the said regulations.

11.2 The Governor of Gujarat, in exercise of the

powers conferred by the proviso to Article 309 of the

Constitution, made the Gujarat Civil Services

Qualifications & Recruitment (General) Rules, 1967, which

apply to services and posts the recruitment to which is

regulated in accordance with the Rules made under Article

309 of the Constitution as laid down by sub-rule (3) of

Rule 1 of the Rules. The posts of Lecturers in the

Government colleges in the State are admittedly Class II

civil posts.

11.3 An appointment to any service or post included in

the State service shall be made by the State Government

or by any authority duly empowered in that behalf by the

State Government either on the result of a competitive

examination held for the purpose, or by direct selection

or by promotion or by transfer from amongst the persons

satisfying the conditions prescribed in these General

Rules and other Rules, if any, relating to the

recruitment to such service or post, as laid down under

Rule 9(1) of the General Rules. Under sub-rule (2) of

Rule 9, every such appointment shall be made after

consultation with the Gujarat Public Service Commission,

unless under a regulation made under the proviso to

clause (3) of Article 320 of the Constitution, such

consultation is not necessary.

11.4 In exercise of the powers conferred by the

proviso to Article 309 of the Constitution, the Governor

of Gujarat made rules for regulation of recruitment to

the post of the Lecturers in the Government Arts, Science

and Commerce Colleges in the Gujarat Educational

Services, Class II (Collegiate Branch) called the

"Lecturers in the Government Arts, Science and Commerce

Colleges Recruitment Rules, 1980". By Rule 2, it is

provided that the appointment to the post of Lecturers in

such colleges in Gujarat Educational Services, Class II

(Collegiate Branch) shall be made by direct selection.

Rule 3 of the Recruitment Rules laid down the eligibility

for appointment by direct selection to the said posts.

If the Gujarat Public Service Commission was of the view

that the research work of a candidate as evident either

from his thesis or from his published work was of a very

high standard, it may relax the qualifications prescribed

in clause (b) of rule 3 so far as it related to class at

the Master's Degree, under the first proviso to rule 3.

If a candidate possessing the qualifications prescribed

under clause (c) of Rule 3 is not available or not

considered suitable, the Gujarat Public Service

Commission may recommend person possessing qualifications

of clause (b), with consistently good academic record

i.e. overall record of all assessments throughout the

academic career leading to Master's Degree on condition

that he will have to obtain a Master of Philosophy degree

level, within five years of his appointment, failing

which he shall not be eligible to earn future increment

till he obtains that degree or produces evidence of

equivalent published work of a high standard, as laid

down in the second proviso to Rule 3 of the Recruitment

Rules. The General Rules would apply, by virtue of Rule

1(3) thereof, to Gujarat Educational Services, Class II,

(Collegiate Branch), the recruitment to which is

regulated as per the said Rules of 1980 made by the

Governor under the proviso to Article 309 of the

Constitution.

11.5 It will thus be seen that the mode prescribed for

recruitment to the post of lecturers in GES, Class II

(Collegiate Branch), is by appointment by direct

selection and no other mode is envisaged by the

recruitment rules governing such appointment. The

recruitment rules clearly contemplate that the selection

will be made by the Gujarat Public Service Commission.

This is evident from the aforesaid two provisos of Rule 3

of the Recruitment Rules, which empowered the GPSC to

relax certain qualifications. Rule 9(2) of the General

Rules of 1967 requires such appointment to be made after

consultation with the Gujarat Public Service Commission,

because, admittedly, there is no regulation made under

the proviso to clause (3) of Article 320 of the

Constitution, dispensing with the process of consultation

so far as these posts are concerned. Both the General

Rules and the Recruitment Rules have the force of law

having binding effect on all concerned. Once the

Governor frames the Rules under the proviso to Article

309, the action of the State Government in respect of the

matters covered by the Rules should be regulated by such

Rules. The Rules framed under the proviso to Article 309

of the Constitution are solemn rules having binding

effect. In A.K.Bhatnagar v. Union of India, reported in

(1991) 1 SCC 544, the Supreme Court cautioned against

flouting of such rules by observing that acting in a

manner contrary to the Rules creates problem and

dislocation and that very often the government themselves

get trapped on account of their own mistakes or acts in

excess of what is provided in the rules, and held that

the Government, both at the Centre and in the State,

should take note of this position and refrain from acting

in a manner not contemplated by their own rules.

11.6 The Rules made under the proviso to Article 309

regulating the recruitment and conditions of services of

persons appointed to such services or posts will operate

with full force, subject to the provisions of the

Constitution or any Act made by the appropriate

Legislature, as contemplated by Article 309. Apart from

this limitation and in the absence of any Act of the

appropriate Legislature on the matter, the Rules will

have full effect and must be enforced. In the present

case, the recruitment rules for the post of Lecturer,

GES, Class II (Collegiate Branch) stipulate only one mode

of recruitment i.e. of "direct selection" from amongst

the modes available under Rule 9(1) of the General Rules.

Rule 9(2) of the General Rules framed under Article 309

of the Constitution require, as noted above, that, every

such appointment shall be made after consultation with

the Public Service Commission unless under a regulation

made under proviso to clause (3) of Article 320, such

consultation is not necessary. It would, therefore,

follow that there can be no relaxation of the basic or

fundamental rules of recruitment which prescribed direct

selection through the Public Service Commission as the

only mode of recruitment to the post for which the

recruitment rules are framed under Article 309. Mere

executive instructions under Article 162 read with

Article 166 cannot supercede the recruitment rules made

under the proviso to Article 309 which have the force of

law. Since there is no option left with the government

under the Lecturers, GES, Class II Rules 1980, to adopt

any mode other than of direct selection for appointment

to the post, will fly in the face of the recruitment

rules and cannot be validly recognised. In fact,

regularisation cannot be said to be a mode of

recruitment. [See R.N.Nanjundappa v. Thimmiah, reported

in (1972) 1 SCC 409].

11.7 The power of regularisation, in absence of any

provisions in the Act or Rules made under Article 309,

would be referable to the executive power under Article

162 and not to the legislative or rule making power under

Article 309. Therefore, when the field is occupied by

law which expression will include rules having force of

law, there would be no scope for exercising executive

power in a manner that would be in conflict with such

law. In the present case, there was no attempt made by

the State Government to absorb the ad hoc appointees by

making any regularisation or absorption rules having

force of law. The process of recruitment of Lecturers,

GES, Class II (Collegiate Branch) by way of direct

selection through the PSC which was undertaken, as per

the recruitment rules, cannot, therefore, be halted. In

fact, the appointment orders of such 342 direct recruits

who were selected are already issued (132 orders were

issued on 10th November 2001 and 210 on 9th October 2002,

of which 123 are awaiting posting, as stated by the

learned Advocate General). As held by the Supreme Court

in Piyara Singh's case (supra), the appointment of the

regularly selected candidates cannot be withheld or kept

in abeyance for the sake of the ad hoc / temporary

employees. In the present case, the ad hoc employees are

being replaced by the regularly selected employees and

therefore, the appellants cannot make any grievance

against such replacement which was contemplated by the

very nature of their ad hoc appointments, which temporary

status never was altered.

12. It was sought to be urged on behalf of the

appellants that the appointments of the appellants should

be treated as regular, because, they were having the

requisite educational qualifications when selected as per

the policy of local recruitment by a committee prescribed

by the government orders, dated 21st December 1992. The

circular dated 21st December 1992, which is on record,

shows that the instructions were issued by the office of

the Commissioner of Higher Education as regards the

procedure to be followed for local appointments in the

government colleges. It was, inter alia, mentioned

therein that there would be a Selection Committee for

taking interview of the candidates for the purpose of

such local appointments on ad hoc basis comprising Joint

Director of Higher Education or an officer of the rank of

Joint / Deputy Director authorised by the Joint Director

of Higher Education, who would be the Chairman, the

Principal of the concerned college, the senior most

lecturer of that college, and an expert in the subject

concerned, to be appointed from the panel of senior

lecturers prepared for the purpose. It was further

provided that, there should be at least three members

present in the Committee for discharge of its functions,

and that if the Chairman was not able to remain present,

the Principal of the College would function as a

Chairman. If the senior most lecturer who was the member

did not remain present, then it was left to the Principal

to call another senior lecturer of the same college. In

the same way, if the expert member who was lecturer from

the panel was not able to remain present for taking the

interview, it was left to the Principal to call the

lecturer teaching the subject concerned in the concerned

college itself. Marks were to be allotted from 25 marks

by each of the four members individually, and a merit

list was to be prepared on the basis of such allotment of

marks. The circular also provided for open interview.

In paragraph 11 of the circular, it was stated that,

ordinarily, the lecturers were to be selected through the

Gujarat Public Service Commission only on permanent

basis. However, as an exception, the ad hoc temporary

appointments were made as per the above procedure. If it

is not possible to make local appointments in the above

manner, in some special circumstances, local appointments

could be made after prior permission by adopting the

method of open interview. It is clear to us that the

local appointments of ad hoc lecturer by way of stop-gap

arrangement as per the procedure prescribed by the said

circular was not intended to prescribe any alternate mode

of regular appointment to the cadre of Lecturers, GES,

Class II Services, but by their very nature, such

appointments were subject to the availability of the

regular recruits. The conditions of local appointments

provided that the ad hoc appointees would be relieved as

soon as the PSC candidate or a transferee reported for

the post. This is clear from the condition No.7 of the

conditions of local appointments, which are placed on

record along with the said circular. In the appointment

orders, admittedly, it was specifically mentioned that

the appointment of these persons was purely on ad hoc

basis and they would have no right to the post of

lecturer. It was specifically stated in these orders

that, on the availability of the regular candidate

through the Public Service Commission or by transfer of

lecturers, the ad hoc employee will have to be replaced.

In cases of those who were appointed keeping their lien

in Class III posts in the Government schools, they were

required to be reverted and in other cases where there

was no such lien, the ad hoc recruits were to be

relieved. There is no dispute over the fact that the

appointments of all these appellants were made purely on

ad hoc basis, with a clear stipulation that they were to

be relieved on the availability of the GPSC candidate.

13. Selection by way of local arrangement for a

stop-gap appointment of lecturer by local committee in

which the college concerned had a major voice by virtue

of its principal and senior most lecturer being the

member of the Committee, of which quorum was three, can

hardly be compared with the selection by the Gujarat

Public Service commission, which is a constitutional

body, for regular appointment to the post in the cadre of

Lecturers, Gujarat Education Service, Class II, as per

the recruitment rules. The purpose of such recruitment

is aimed at securing the best available talent for the

teaching post. There is nothing common between such

local committees and the GPSC. The functions of the PSC

are meant to ensure that vacancies are filled by

deserving and capable hands and are not filled either by

the relatives or friends or flatterers. Though the

powers of the PSC are advisory in character, it is

required to be consulted, as provided by clause (3) of

Article 320 of the Constitution, unless such consultation

is dispensed with by a regulation made under the proviso

to clause (3) in respect of the specified matters or

particular class of case or circumstance. The Commission

having been entrusted with the constitutional duty to

select suitable candidates by inviting applications from

the open market, every eligible candidate will have a

fundamental right to seek consideration for selection

through open competition (See P. Ravindran v. Union

Territory of Pondichery, reported in (1997) 1 SCC 350).

13.1 The fact that there is no provision in the

Constitution which makes the acceptance of the advice

tendered by the PSC, when consulted, obligatory renders

the provision of Article 320(3) directory, and not

mandatory, but that does not amount to saying that it is

open to the executive government completely to ignore the

existence of the Commission or to pick and choose cases

in which it may or may not be consulted. The proviso to

clause (3) of Article 320 clearly envisaged framing of

regulations which are to be led before the Legislature,

if at all the process of consultation is to be dispensed

with in matters which are to be specified. Once such

regulations have been made, they are meant to be followed

in letter and spirit. It would not be open to the

executive government to bypass the process of recruitment

through open competition to be held by the PSC in

services which fall within its purview under Article 320

of the Constitution.

14. After having the experience of working of the

Government of India Act, 1935, which, in section 266,

provided for functions of the Federal and Provincial

Public Service Commissions, the defects that were noticed

in practice were sought to be remedied in Article 320

(embryonic form of which was Article 286 in the

Constituent Assembly Debates), by seeing to it that the

regulations exempting certain things from the scope and

jurisdiction of the PSC have to be placed before the

Parliament or Legislature, as the case may be, for its

scrutiny from time to time. Article 320 provides a

check, and indeed a very good check, on the vagaries of

the Executive by providing that the regulations

specifying matters in regard to which it will not be

necessary to take the advice of the PSC, are laid before

the Legislature and the Legislature will have the power

not merely to criticize such regulations, but to amend

them in any manner that it likes. This would ensure that

no regulations would operate unless the Legislature

approves them. Furthermore, by Article 323(2) of the

Constitution, the State Public Service Commission has

been enjoined with a duty to present annually a report of

its work to the Executive and the Governor is required,

on receipt of such report, to cause a copy thereof

together with a memorandum explaining, as respects the

cases, if any, where the advice of the Commission was not

accepted and the reasons for such non-acceptance, to be

laid before the Legislature of the State. Thus, should

the Executive be tempted unduly to disregard the advice

of the PSC, the representatives of the people will have

an opportunity of scrutinizing such action of the

Executive and preventing the Executive, in future, from

disregarding the considered advice of the Commission.

With the checks provided in these Articles, there is a

reasonable certainty that the Executive will be disposed

to act with caution and not to exercise its powers in an

arbitrary fashion and act as if the Public Service

Commission did not exist.

14.1 It will not be out of place here to remind

ourselves that, on 26th November 1949, while adopting the

Constitution, the President Dr. Rajendra Prasad, while

pointing out the salient features of the Constitution,

inter alia, observed;

"Our Constitution has devised certain independent

agencies to deal with particular matters. Thus,

it has provided for Public Service Commissions,

both for the Union and for the States and placed

such Commission on an independent footing so that

they may discharge their duties and without being

influenced by the Executive. One of the things

against which we have to guard is that there

should be no room as far as it is humanly

possible for jobbery, nepotism and favouritism.

I think the provisions which we have introduced

in our Constitution will be very helpful in this

direction."

15. It would follow from the nature of the functions

of the Public Service Commission that, being associated

with all matters relating to methods of recruitment to

civil services and for civil posts and on the principles

to be followed in making appointments, promotions and

transfers, as also with the suitability of candidates for

such appointments, promotions or transfers, the PSC is

under a constitutional obligation to exercise its powers

to be consulted in all matters in which it is required to

be consulted and the Executive is under the

constitutional obligation to consult it in all matters

which are not specifically excluded by the regulations

made under the proviso to clause (3) of Article 320.

Deliberate and consistent failure on the part of the

Executive to consult the PSC in matters in which it is

constitutionally obliged to consult, notwithstanding the

advice may not be binding on it, would bring about a

situation in which it would appear that the governance of

the State is not carried on in accordance with the

provisions of the Constitution, by on one hand paralysing

a constitutional body like the PSC from functioning and

on the other, short circuiting the provisions which

require regulations under the proviso to clause (3) to

Article 320 to be framed and to be laid before the

Legislature which can modify them, for deciding in which

specified matters, consultation with the PSC is to be

dispensed with. The power of the Legislature in context

of such regulations cannot be scuttled by the Executive

by going beyond the regulations which specify the matters

for which it is not necessary to consult, by refraining

from consultation as regards the matters not so covered

by such regulations. The PSC is under a Constitutional

obligation to send annual report which has to be laid

before the Legislature under Article 323 and in such

report, it would be obligatory on its part to report

about any deliberate inaction on the part of the

Executive Government to consult the PSC in respect of the

matters in which it is required to be consulted in the

absence of the regulations under the proviso to clause

(3) of Article 320, and point out the fact that it could

not do its work due to such inaction, deliberate or

negligent or because of reckless indifference, on the

part of the State Government so that the Legislature can

notice the breach of the constitutional requirement of

consultation from such report and take necessary action

expected of it.

16. As noticed above, consultation with the

Commission in any of the matters specified in paragraphs

(a) and (b) of clause (3) of Article 320 is not necessary

in respect of the posts specified in the Schedule to the

Exemption from Consultation Rules of 1960 and the post of

Lecturer, Gujarat Education Services, Class II, is not

included in that Schedule. Such consultation is,

however, not necessary in respect of the temporary

appointments to all other posts and services for a period

not exceeding or not likely to exceed one year as per

clause 3(b) of the Regulations of 1960. Thus, no

consultation is required when the post is to be filled in

for temporary period not likely to exceed one year. This

exemption does not authorise the State Government not to

consult the PSC in respect of the appointments which are

likely to exceed one year. This would mean that, in all

such cases, the Government is required to apply its mind

and decide before making any temporary appointment

whether such appointment is "for a period not exceeding

or not likely to exceed" one year. Even in cases where

the temporary appointment is not likely to exceed one

year, the Government issued circular dated 22nd January

1998 which is mentioned below Regulation 3 of the said

Regulations of 1960 that it is necessary to consult the

PSC if such temporary appointment involves relaxation of

recruitment rules of the post, finalised in consultation

with the PSC even in urgent cases. The Circular of 1992

issued by the Government under Article 162 of the

Constitution for making local appointments cannot expand

the scope of Regulation 3, and enable the Government to

make temporary appointments for an indefinite period

exceeding one year. It is an unfortunate situation that

the GPSC did not worry about the erosion of its power of

being consulted by the culpable inaction on the part of

the Government to consult it for appointments to the post

of Lecturers, Gujarat Education Service, Class II,

despite more than 400 vacancies having arisen.

16.1 It was contended on behalf of the PSC that, in

absence of getting the requisition from the Government

inspite of its reminders, it could not exercise its

functions. Correspondence was shown to us reflecting the

inaction on the part of the Executive in not consulting

the GPSC in respect of these vacancies and the lukewarm

attitude of the Executive. The GPSC need not have felt

itself helpless in not being able to do its work and

could have resorted to appropriate legal proceedings for

seeking a remedy against the State Government for

compelling it to perform its local obligation to consult

the Commission in matters in which it was as per the

Rules, Regulations and Constitutional provisions required

to be consulted. Such inaction on the part of the GPSC

as well as the State Government, which had put the

machinery of consultation in context of these posts to

disuse, verges on negligence in performance of the

statutory functions, and amounts to a reckless disregard

to the consequences of such inaction in breach of

statutory duties entrusted to them. Such reckless

inaction and breach of statutory duties would obviously

be attributable to the individuals who were required to

discharge their functions according to the rules,

regulations and the constitutional provisions requiring

consultation with the GPSC in the matter of such

appointments.

16.2 The provisions contained in Article 320 with

regard to the matters in respect of which the PSC shall

be consulted have been held not to be mandatory, because,

it was not stated what would be the consequences of the

disregard of these provisions, and, clause (3) warranted

exclusion of matters from consultation by the Executive.

This would mean that, from the point of view of the

public, the obligation laid on the Executive was not an

enforceable right but only a directive principle.

However, in such a case, the PSC is now able to mention

in its report under clause (5) of Article 320 about the

matters in which its recommendation was not accepted or

where it was not consulted though required to be so

consulted and such report will have to be placed before

the Legislature. The provisions of clause (5) of Article

302 was clearly enacted to ensure that there would be a

reasonable certainty that the Executive will be disposed

to act with caution and not exercise its powers in an

arbitrary fashion and act as if the Public Service

Commissions did not exist. If the Executive or the

personnel of the Commission do not discharge their duty

properly and without fear or favour, then they demean

these welcome constitutional provisions. After all, the

Constitution cannot either create competent men or compel

the Executive to choose the officers required to

discharge important functions with care and impartiality.

17. It was argued that, from the continuance of the

ad hoc appointees for long period, it should be inferred

that the recruitment rules were relaxed in their favour

and they are deemed to have been regularised. 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 PSC

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. 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 regularised

or deemed to have been regularised 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 Singh's 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. When the field is covered by the statutory

rules laying down the mode of regular appointments, the

Courts will not be justified in directing any

regularisation which may 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 regularised 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.

18. It was contended that the theory of precedent did

not mean picking up one of the cases decided by the Apex

Court and applying its ratio, but it meant taking into

account the ratio emerging after the study of all the

ratios of different decisions. Such formidable task may

evolve some hybrid ratio which may not have been intended

by the Apex Court even in its collective wisdom. The

proper course is to keep in mind the ratio as it emerges

in each case in the background of its facts and the

decision rendered and each decision of the Apex Court on

its own will constitute a binding precedent.

19. The contention that the direct selectees have no

right to claim the appointment even when included in the

select list prepared by the PSC and therefore, the

learned Single Judge should not have issued directions to

appoint them as contained in paragraph 77 of the

judgement, is not open to these ad hoc employees. The

State Government has not raised any such contention and

has, as per the recruitment rules, issued appointment

orders of these PSC selectees. The fact that the PSC

selectee on the select list cannot claim appointment as a

matter of right cannot create any entitlement in favour

of the ad hoc employee to continue as ad hoc employee in

a post which, as per the statutory rules, can be filled

only by direct selection through the PSC. There is also

no substance in the grievance made on behalf of the lien

holder ad hoc appointees against the directions contained

in paragraph 77 of the impugned judgement for applying

the principle of "last come first go" to the ad hoc

appointees.

20. The contention that some of the ad hoc employees

were wrongly not called for interview on the ground that

they did not satisfy the educational qualifications

prescribed by the recruitment rules which were

subsequently amended, is erroneous. Their qualifications

were necessarily required to be judged by the provisions

of the recruitment rules prevailing at the time of their

applying for such regular appointment and not with

reference to the time when they were initially appointed

by way of local arrangement on ad hoc basis about 10

years back, as was urged on their behalf.

21. Thus, a very sad picture emerges. There has been

a total callousness on the part of the Executive as well

as the Gujarat Public Service Commission which is a

constitutional authority, in the discharge of their

important constitutional functions in the matter of

making appointments to the cadre of Lecturers, Gujarat

Education Service, Class II (Collegiate Branch).

Appointments on ad hoc basis were made from time to time

and there has not been any attempt to consult the GPSC by

sending requisitions for all these posts or for extension

of ad hoc appointments beyond one year of the initial

appointments. From what the learned Advocate General and

the counsel for the GPSC have stated before us during the

arguments, though quarterly statements of the ad hoc

employees were required to be sent to the GPSC, as per

the government orders in force, they were in fact not so

sent for over a decade. The government, in their

Education Department, put up an excuse in their

communication dated 18th August 1998 addressed to the

GPSC that the ad hoc lecturers were appointed locally

till the end of the academic term, but some of them

obtained interim orders from the Courts for being

continued till regular PSC recruits were available, and

therefore, they had to be continued. The PSC in their

letters dated 27th January 2000 and 12th March 2001

addressed to the Government lamented that despite their

reminders, no information of ad hoc lecturers was being

furnished to it, nor was any proposal received by it for

continuing such ad hoc employees. In the letter dated

12th March 2001, the GPSC raised its meek voice stating

that it was neglected for over ten years in respect of

these ad hoc appointments, and that it took serious note

of indifference and negligence of the Government and

further that, if reply was not sent in 15 days, the PSC

will make a note of this matter in its annual report

(under clause (5) of Article 320). On 20th March 2001,

the Government sent reply to the GPSC with a request not

to make a note about its lapse (of not consulting the

GPSC) in its annual report. The correspondence was shown

to us by the learned Advocate General and the learned

counsel for the GPSC, because, during the hearing, we

asked them to explain to us the inaction on the part of

the Executive and the GPSC that had resulted in the

present impasse of the ad hoc lecturers continuing for

long years and many over ten years and the GPSC

candidates not being appointed as per the recruitment

rules for all these years. Copies of this correspondence

are placed on record and it makes a dismal reading

showing the utter careless and indifference of both these

august bodies.

22. No chastisement nor expressions of dismay and

disappointment have yielded any result in the past. This

is because the concerned officials of the Executive and

the GPSC may be labouring under an impression that

nothing more can be done in respect of such conduct

amounting to negligence, recklessness in discharge of

duties in public office or breach of statutory duties.

Administrative law directly affects the functioning of

the Executive by issuing writs or orders instructing the

administration how to act or what to refrain from doing,

in accordance with their statutory duties. Yet, there

are many situations where the administration may have

functioned improperly, but no effective remedy can be

employed post facto. What is done is done, to be left as

"fait accompli". Usually administrative law does not

award monetary compensation over losses caused by the

infringement of rights except in rare cases, but in this

regard, tort law makes a huge difference. As one of the

aims of judicial review is to encourage the public

authority to function properly through deterrence, it

stands to reason that tort law may and often prove to be

more effective deterrent than administrative law, for,

the authority may take risk of being ordered to change

its ways if court order is issued, but it may hesitate to

take such risk if it involves liability to pay

substantial compensation. In cases where plea of

immunity is not legally available, the court may consider

whether to impose tort liability on public authorities

exercising statutory powers and while doing so, it is

actually engaged in judicial review of the decision and

functioning of the executive in order to decide whether

the latter exercised its powers properly. The imposition

of tort law liability is tantamount to a finding that the

executive failed to function properly, and that, affected

person is entitled to rectifying remedies against the

authority. This venue of judicial review would co-exist

with the judicial review conducted by the Courts by

applying administrative law, to make the constitutional

remedies more effective in the public law field.

22.1 Though standard of negligence applied by the

Courts in determining where a duty of care has been

breached cannot be applied to policy decisions, it can be

applied to operational decisions. Accordingly, it is

possible that a duty of care may exist in relation to

discretionary considerations which stand outside the

policy category in the division between policy factors on

one hand and operational factors on the other. A public

authority may be under no duty of care in relation to

decisions which involve or are dictated by financial,

economic, social and political factors or constraints.

But, it may be otherwise when the courts are called upon

to apply standard of care, to action or inaction, that is

merely the product of administrative direction, expert or

professional opinion, technical standards or general

standards of reasonableness. The duty of care should

apply to a public authority unless there is a valid basis

for its exclusion as in case of a true policy decision of

the government. Why should people caused foreseeable

injury by the careless acts of others not have a right to

compensation against those with some responsibility or an

authority to prevent the wrong in question merely because

the activity related to public law sphere? The executive

authorities enjoined with the duty to consult the Public

Service Commission for recruitment as per the recruitment

rules were acting in the sphere of the operational part

of the process as distinguished from the policy decision

division requiring the recruitment to be made as provided

by the recruitment rules. Even relaxation aspect may be

considered as a part of policy decision under the Rules.

But the function to send requisition to consult the GPSC

was purely an administrative function involving no policy

considerations or a quasi-judicial process. The

consequences of continuing the ad hoc appointments beyond

permissible one year without consultation, resulting in

the ad hoc employees remaining in ad hoc status for a

number of years which was wholly irregular in absence of

the consultative process could have easily been foreseen

by the concerned executive officers, who did not take

reasonable care in discharge of their functions, which

required them to send requisitions for regular direct

recruitment through the PSC and even to consult it for ad

hoc continuance of these temporary employees or to do any

permissible relaxation in consultation with the PSC.

Such careless default on the part of the executive

authority directly resulted in ad hoc continuance of all

those lecturers for so many years that it may have

virtually washed away any opportunity to settle again,

which they would have had if they were relieved after one

year of ad hoc appointment or on being considered as to

whether they could be absorbed by a legitimate process

within the bounds of statutory rules governing the

services. There are no legitimate and proportionate

reasons to show why the authority failed to act in the

way it did. Now that compensation can be awarded against

public authorities for violation of fundamental rights in

exercise of their powers, there is no rationale for any

wide exclusionary rule for such liabilities.

23. The tort of misfeasance in public office has two

forms, which are the alternative ways in which such tort

can be committed, namely, (1) cases where public power

was exercised for an improper purpose with the specific

intention of injuring a person or persons (i.e. targeted

malice), and (2) cases where a public officer acted in

the knowledge that he had no power to do the act

complained of and that it would probably injure the

claimant. In the second category of cases, an act

performed in reckless indifference as to the outcome was

sufficient to ground the tort. When the public officers

acts with a state of mind of reckless indifference to the

illegality of his act, it involves bad faith inasmuch as

the public officer does not have an honest belief that

his act is lawful. The misfeasance consists in the

purported exercise of a power otherwise than in an honest

attempt to perform the relevant duty. It is that lack of

honesty which makes act an abuse of power. The rationale

of this tort of misfeasance in public office is that in a

legal system based on rule of law, executive or

administrative power may be exercised only for the public

good and not for ulterior and improper purposes.

Reckless indifference to consequences is as blameworthy

conduct as deliberately seeking such consequences. It

has been treated as settled law in England that an act

performed in reckless indifference as to the outcome is

sufficient to ground this tort. (Lord Steyn in Three

Rivers DC v. Bank of England (No.3), reported in [2000]

3 All ER 1, also see Lord Hope in Three Rivers DC v.

Bank of England, reported in (2001) 2 All ER 513,

paragraphs 42 and 44].

23.1 Torts may arise as a result of malfeasance,

misfeasance or non-feasance. Malfeasance would be a

wrongful act by a State officer in performance of the

officer's duties that is substantially outside the scope

of the authority of the officer and that substantially

infringes on the rights of a person or entity. As

malfeasance requires the intentional commission of an

unlawful or wrongful act, the focus is on the action

taken by the official. In contrast, non-feasance focuses

on the official's failure to act. Misfeasance has been

defined as malicious abuse of power, deliberate

maladministration and unlawful acts causing injury by

public officer. While actual malice, if proved, would

render the public officer's action, both ultra vires and

tortuous, it would not be necessary to establish actual

malice in every claim for misfeasance in public office.

(See Common Cause, a registered society v. Union of

India (1999) 6 SCC 66, paragraphs 82 and 98).

Misfeasance is now recognised as imputable to discharge

of duty arbitrarily. Misfeasance being a deliberate

tort, the focus is on the state of mind of the wrong-doer

at the time the relevant act is done or omission is made.

For the purposes of misfeasance, the mental element is

satisfied by either (1) evidence of malice, or (2)

knowledge of the absence of power which includes reckless

indifference as to the extent of power. Malice will

exist if the act was done with an actual intention to

cause injury. The requirement of malice will also be

satisfied if the act was done with knowledge of

invalidity or lack of power and with knowledge that it

would cause or be likely to cause such injury. The

present case is a case of the executive recklessly

discharging both a known constrain on its power and the

permissible means of fulfilling its known duty of acting

as per the statutory rules in the matter of appointments

to the posts of Lecturers, GES, Class II. Here the

constitutional provisions, the recruitment rules and the

general rules having force of law protect the interests

of the eligible persons of being given an equal

opportunity in the matter of public employment i.e. from

being considered for the post of Lecturer, GES, Class II

as per the recruitment rules in consultation with the

GPSC which interest was jeopardized by the executive by

continuing ad hoc appointees contrary to law. The

present case is not of targeted malice but of knowledge

of the absence of power which includes the reckless

indifference as to the extent of power. A broad notion

of malice would include such knowledge and reckless

indifference. The inclusion of reckless indifference as

a relevant state of mind is consistent with the notion

that misfeasance is a deliberate tort.

23.2 The exercise of power by not sending the

requisition causing the ad hoc lecturers to continue

contrary to the recruitment rules was invalid in the

sense that the concerned public officer had no power to

continue them beyond one year without consultation with

the PSC and by continuing them beyond one year, the power

had been miscarried by the public officer. Thus, the

first element of the tort of misfeasance in public

office, namely, the public officer committed an invalid

act or omission stands established on admitted facts.

23.3 Second element of this tort which requires that

the public officer knowingly acted in abuse of power is

also established, because, it is evident that the public

officer involved acted with actual knowledge of lack of

power to continue ad hoc appointees beyond one year in

face of the specific provisions of the Constitution, the

Recruitment Rules and the General Rules and in

arbitrarily continuing the ad hoc appointees and not

following the recruitment rules and procedure prescribed

for recruitment to the post.

23.4 The third element of this tort of injury being

suffered by the persons concerned is also present,

because, as a result of the wrongful act of the public

officer in not sending requisitions for 435 posts from

time to time to the GPSC as per the statutory

requirements, and wrongfully continuing the ad hoc

appointees for more than ten years acting with reckless

disregard to the legal consequences of such act and

omission, the aspirants for the posts have suffered

disadvantages that they may not have suffered if the

power had been validly exercised.

23.5 Thus, apart from the tort of negligence (which is

the failure to exercise reasonable and prudent care in

relation to a situation), the public authority would

commit tort of misfeasance in public office when acting

in reckless indifference as to the outcome of its act

which he had no power to do, tort of nonfeasance in

public office on failure to perform specific acts that

are the required duties of the officer, and general tort

of breach of statutory duty where it commits breach of a

particular statutory duty. In the present case,

statutory obligations required the executive authorities

to fill up the posts of lecturers in government colleges

by following the procedure of direct selection through

the GPSC for which the requisitions were to be sent when

the vacancies arose. The law did not permit ad hoc

appointments to these posts beyond one year without

consulting the GPSC. The executive authorities did not

consult the GPSC for over ten years and continued the

appointments of the ad hoc lecturers illegally. This

breach of statutory duty cast upon the executive was

obviously known to the concerned authorities. They acted

with reckless indifference to the consequences of their

inaction in the matter of undertaking the process for

direct recruitment and committed breach of the statutory

provisions by continuing the appointments of ad hoc

appointees beyond one year without consulting the GPSC.

The consequences of their reckless disregard to the

statutory provisions was that the periodic PSC

examinations in which selections could have been made for

direct recruitment were not held thereby denying those

who could have competed, an equal opportunity in the

matter of public employment. The conduct of the

authorities in arbitrary continuance of ad hoc appointees

was violative of fundamental rights of others, who would

have otherwise had an opportunity to compete for

selection, had the executive initiated the process of

recruitment to 435 vacant posts in time, as per the

recruitment rules. The executive authority, therefore,

clearly acted with a state of mind of reckless

indifference to the illegality of its act and the risk of

violating the fundamental rights of the prospective

candidates under Articles 14 and 16 of the Constitution.

By not sending the requisitions to the GPSC in time, the

executive authority failed to perform its required

duties. Even though special damages cannot be the

subject matter of public law proceedings, the improper

interface between notions of unlawful acts in judicial

review proceedings and rights to damages in tort means

that some victims of bureaucratic recklessness in

discharge of statutory duties currently go uncompensated.

We may however put the public authorities guilty of the

tort of misfeasance or non-feasance in public office or

the general tort of breach of statutory duty to guard

that they would be liable to action for damages for such

acts, if claimants were to seek damages for consequential

economic loss by establishing that the public officers

acted in the knowledge that his act would probably injure

the claimant.

24. In public law, claim for compensation is a remedy

available under Article 226 for enforcement and

protection of fundamental and human rights and the

defence of sourvereign impunity is inapplicable and alien

to the concept of guarantee of fundamental rights. As

held by the Supreme Court, such remedy is a practical and

inexpensive mode of redress available for contravention

made by the State and its servants in purported exercise

of their powers and enforcement of the rights or duties

under the Constitution or the law. (See Consumers

Education & Research Centre v. Union of India, reported

in (1995) 3 SCC 42). Moreover, the principle of

vicarious liability apply as much to misfeasance in

public office as to other torts involving malice,

knowledge or intention, (See Racz v. Home Office (1994)

1 All ER 97). The Supreme Court has held that the remedy

of compensation available in public law is "distinct from

and in addition to the remedy in private law for damages

for tort", resulting from the contravention of the

fundamental rights [See Nilabati Behera (Smt) alias

Lalita v. State of Orissa reported in (1993) 2 SCC 746,

D.K.Basu v. State of W.B., reported in (1997) 1 SCC 416,

Common Cause, A Registered Society v. Union of India,

reported in (1999) 6 SCC 667]. In case where the tort of

misfeasance or non-feasance in public office or of

general of breach of statutory duty is established and no

factual dispute arises in respect of such default in

public law proceedings, the court will be within its

power to award compensation as a remedy against the

defaulting public officer and also the State Government

for its vicarious liability. Such interface between the

public law remedy and tort law would be essential to meet

the ends of justice and will act as a deterrent against

the public authority for preventing it from acting with a

reckless disregard of the statutory provisions to the

detriment of the public.

25. The continuance of these ad hoc lecturers for

many years beyond the first year for which the

consultation from the GPSC was not necessary in view of

the ad hoc nature of appointment may have nurtured hope

in them that they will be regularised. In fact, in the

office note, which is at Annexure "II" of the affidavit

filed on 14th October 2002 in Letters Patent Appeal No.

817 of 2002, there is a reference to the fact that the

office bearers of the Association were heard by the

Hon'ble Chief Minister on 17-5-1999 in a public relation

meeting, and that the Chief Minister had given a

direction that the decision would be taken on the basis

of the report of the Cabinet Sub-Committee, and that, in

principle, it was decided to continue these ad hoc

employees and the concerned Minister will give directions

as to the matter of holding of examination by the PSC.

Though this note cannot be said to be an order of the

Government and only reflects that the matter was in

contemplation of the Government, such consideration would

have given the ad hoc lecturers to understand that they

will be regularised in service. Even in the affidavit of

the Government filed on 14th June 2001 in Special Civil

Application No. 2395 of 2000, it was stated that the

Government had, pursuant to the order dated 4-5-2001,

made in the said petition, directing the State Government

to decide the representations of the ad hoc lecturers,

taken a decision that the services of all the 330 persons

appointed as lecturers in government colleges on ad hoc

basis from time to time by the Commissioner of Higher

Education pursuant to their selection by local selection

committee constituted under the circular dated 21-12-1992

should be regularised from the date of their appointment

as was done in the case of Medical Officers, Ayurved,

Class II, under the G.R. dated 4-12-1999, and that for

regularising the services of all such ad hoc appointees,

a reference to the GPSC should be made to obtain its

approval, as a special case. There was, therefore, clear

indication that the case of these ad hoc employees would

be regularised in consultation with the GPSC. However,

that stand was changed, when it dawned on the Executive

that they committed a legal blunder, in the affidavit,

because, these ad hoc appointees could not have been

regularised contrary to the Recruitment Rules in the post

for which direct recruits were already selected through

the PSC. In fact, according to us, these matters should

not be viewed as having a "lis" between the ad hoc

lecturers and the regular direct selectees. The direct

selectees cannot be penalised to wait though selected as

per the statutory rules through the PSC. They are

rightly allowed to man the posts earmarked to be filled

by them. The ad hoc lecturers, if at all, will have a

legitimate grievance against the executive for continuing

them on ad hoc basis for all these years without

consultation with the GPSC, creating a hope in them that

they will be some day absorbed. The executive acted in

an arbitrary fashion in continuing them contrary to the

statutory rules which empowered it to make ad hoc

appointments only for a year and in breach of its

statutory obligation to fill the post in the manner

prescribed by the Rules. It will be for the government

to consider the feasibility of giving appropriate relief

in consonance with their statutory powers where such ad

hoc appointees have been continuing over a long number of

years. Issuing general declaration of indulgence is not

the part of a court's jurisdiction, as held in Piyara

Singh's case (supra) by the Supreme Court. The

contentions raised on behalf of the appellants cannot,

therefore, be accepted.

26. Though these ad hoc lecturers cannot be directed

to be continued contrary to the recruitment rules, nor

can they be ordered to be regularised by any mode not

warranted by the statutory rules governing the

appointments to the cadre of Lecturers, GES, 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.

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 month's 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.

26.2 Subject to the above directions, all these

Letters Patent Appeals are dismissed with no order as to

costs. All the Civil Applications which are filed in

these Letters Patent Appeals stand rejected with no order

as to costs.

27. At this stage, the learned counsel for the

appellants prays that the operation of this order may be

stayed to enable the appellants to approach the Higher

Forum. This prayer is not justified at this distant

point of time and especially when the direct recruits who

are already issued appointment orders are waiting for

their posting. The request is, therefore, not acceded

to.

[R.K.ABICHANDANI, J.]

[SHARAD D. DAVE, J.]

parmar*



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