Dipesh Yashwantbhai Jani vs State Of Gujarat
2021 Latest Caselaw 12888 Guj

     C/SCA/5519/2017                                JUDGMENT DATED: 31/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5519 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        DIPESH YASHWANTBHAI JANI
                                  Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MS NIYATI K SHAH(2935) for the Petitioner(s) No. 1
BHAVNA P SONI(7049) for the Respondent(s) No. 4
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
MR MITUL SHELAT FOR MR RAJENDRA PATEL(645) for the
Respondent(s) No. 3
MR SAMIR AFZAL KHAN(3733) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 31/08/2021

                             ORAL JUDGMENT

Heard learned advocate Ms.Niyati K. Shah for the petitioner, learned Assistant Government

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Pleader Mr.Kurven Desai for the respondent No.1, learned advocate Mr.Mitul Shelat for learned advocate Mr.Rajendra Patel for the respondent No.3 and learned advocate Mr.Samir Afzal Khan for the respondent No.4.

1. Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Kurven Desai waives service of notice of rule on behalf of the respondent No.1, learned advocate Mr.Mitul Shelat waives service of notice of rule on behalf of the respondent No.3 and learned advocate Mr.Samir Afzal Khan waives service of notice of rule on behalf of the respondent No.4.

2. By this petition, under Articles 226 and 27 of the Constitution of India, the petitioner has prayed for the following reliefs :

"A. This Hon'ble Court may kindly be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions quashing and setting aside the impugned Government Resolution dated 28.02.2013 in a so far as it requires the post of Supervisor (Civil) in respondent no.3-University to be filled in on the basis of Fixed Pay of Rs.5,300/- per month for the period of five years, and the Office Order dated 13.05.2016 in so far as it makes the provision regarding termination of services of the petitioner forthwith, as soon as the procedure for recruitment on the post of Supervisor (Civil) on the basis of Government Resolution dated 28.02.2013 is completed and the order dated 03.02.2017 passed by the respondent no.3-University terminating the service of the petitioner as Supervisor (Civil) with immediate effect.

B. This Hon'ble Court may be pleased to declare the impugned government resolution dated 28.02.2013 as bad in law, arbitrary and discriminatory and thus, Articles 14 and 16 of the Constitution of India to the extent in so

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far as it requires the post of Supervisor (Civil) in respondent no.3-university to be filled in on the basis of fixed pay of Rs.5300/- per month for a period of five years.

BB. This Hon'ble Court may be pleased to decleare the impugned Government Resolution dated 15.5.2012 as bad in law, arbitrary and discriminatory and thus, violation of Articles 14 and 16 of the Constitution of Inida to teh extent of insofar as it sought to create the post of supervisor (civil) again in the Respondent No.3 university.'

C. This Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction, directing the respondent-authorities to renew the petitioner's contract of service on the same terms and conditions and pay as either to and further directing the respondent-authorities to regularise the services of the petitioner on the basis of government resolutions dated 23.01.1998 as the petitioner was appointed way back in 2001 and put up uninterrupted services of more than 15 years on a permanent and sanctioned post of Supervisor (Civil).

D. During the admission, hearing and final disposal of the present Petition, this Hon'bie Court may be pleased to grant against operation, implementation and execution of the government resolution dated 28.02.2013 as well as the office orders dated 13.05.2016 and 03.02.2017 and the petitioner may be allowed to discharge his duty on his original post without any interruption;

E. The Hon'ble Court may be pleased to pass any other order or relief as may be deemed fit to the Hon'ble Court."

3. The brief facts of the case are as under :

3.1 The respondent no.3 is a University established under the Dr. Babasaheb Ambedkar Open University Act, 1994 (hereinafter referred as "the Act"). The State Government had initially sanctioned 8 posts of teaching as well as non teaching staff, vide its resolution dated 23.05.1995 and thereafter, by subsequent

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resolution dated 23.01.1998, the State Government had further sanctioned 21 posts for teaching as well as non teaching staff for the respondent no.3-University, which inter alia includes the post of Supervisor (Civil).

3.2. For the filling up of the above vacancies, the respondent no.3-University had issued a public advertisement dated 07.07.2001 in daily newspaper namely 'Sandesh' dated 09.07.2001 inviting applications for the various teaching and non teaching posts for appointment on contract basis on fixed salary and one of the non teaching posts was Supervisor (Civil) which was a sanctioned post having pay-scale of Rs.4500-7000 and allowances admissible.

3.3 The petitioner having the requisite qualification and experience applied for the said post pursuant to which, the personal Interview was held on 06.09.2001 and the petitioner was appointed on the post of Supervisor (Civil) in Respondent no.3-University by letter dated 03.10.2001. The decision with regard to the appointment of the petitioner was taken in the 16th Meeting of the Board of Management of the respondent no.3-University held on 24.09.2001. The initial appointment of the petitioner was for a period of one year.

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3.4.Pursuant to the appointment order dated 03.10.2001, the petitioner resumed his duty on 11.10.2001. From 11.10.2001 to 03.02.2017, the petitioner was working as Supervisor (Civil) and from time to time, the appointment of the petitioner was renewed by issuing office orders. The appointment so renewed from time to time is as under:

 Sr.No.                    Period                          Date of Office
                                                                  Order
   1.           11.10.2001 to 10.10.2002                      03.10.2001
   2.           11.10.2002 to 10.04.2003                      05.10.2002
   3.           11.04.2003 to 10.10.2003                      10.04.2003
   4.           13.10.2003 to 12.10.2004                      23.10.2003
   5.           13.10.2004 to 12.10.2005                      15.10.2004
   6.           13.10.2005 to 12.10.2006                      13.10.2005
   7.           13.10.2006 to 12.10.2007                      16.10.2006
   8.           13.10.2007 to 12.10.2008                      04.10.2007
                                                              24.03.2008
   9.           13.10.2008 to 12.10.2009                      10.10.2008
                                                              27.05.2009
  10.           13.10.2009 to 12.10.2010                      06.10.2009
                                                              18.01.2010
  11.           13.10.2010 to 12.10.2011                      12.10.2010
  12.           13.10.2011 to 12.09.2012                      17.10.2011
  13.           13.09.2012 to 12.08.2013                      14.09.2012
  14.           13.08.2013 to 12.07.2014                      26.06.2013
                                                              19.08.2013
  15.           13.07.2014 to 12.06.2015                      04.08.2014
                                                              11.10.2014
  16.           13.06.2015 to 12.05.2016                      12.08.2015
  17.           13.05.2016 to 12.04.2017                      13.05.2016
                                                              21.11.2016






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3.5. During the course of his employment with the respondent no.3-University, the petitioner along with other staff members - teaching as well as non teaching had made representation to the respondent no.3-University on 05.08.2005 stating therein that they have been discharging their duties for the last more than 4 years and since they have been working on contract basis, though the posts are sanctioned posts, the necessary representation should be made to the State Government for regularization of their services.

3.6. The petitioner along with other staff members also made representation on 17.12.2005 to the respondent no.3-University stating therein that pursuant to the applications invited by the respondent no.3-University through public advertisement and the Interviews taken by the Selection Committee, they have been appointed on contract basis on the sanctioned posts and they were therefore entitled to regularization of their services. It was also pointed out that some other universities in the State of Gujarat have regularized the services of their employees discharging the same duties and holding same posts as were held by the petitioner and other staff members. It was further pointed out that 12 employees of the respondent no.3-University who were discharging their duties on contract basis

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were subsequently made regular with effect from 01.01.2001 by a decision taken in the 13th Meeting of Board of Management of the respondent no.3- University held on 22.12.2000. The petitioner and other staff members also raised a grievance that though they have rendered uninterrupted services for more than 4 years, they have been issued the appointment orders periodically on contract basis which was contrary to the service jurisprudence and hence, necessary steps be taken for regularization of their service.

3.7. The petitioner also made a representation on 21.01.2008 stating therein that he has been discharging his duty as Supervisor (Civil) for about 6 years and during this period, he has worked to the complete satisfaction of his superiors. He therefore requested to regularize his service.

3.8. The petitioner and other staff members also made a representation on 05.03.2011 requesting the respondent no.3-University to grant the benefit of 6th Pay Commission as the State Government has granted such benefit to the employees of various other Universities in the State of Gujarat.

3.9. Pursuant to the various representations made by the petitioner and other staff members from

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time to time and pursuant to the recommendations made by the respondent no.3-University to the State Government more particular on 16.11.2011 and 28.02.2012, the Education Department of the State Government passed a resolution on 15.05.2012 granting approval to the 19 posts of teaching staff and 27 posts of non teaching staff which inter alia included the post of Supervisor (Civil) in the pay scale of Rs.5200-20200 and the Pay Grade was fixed at Rs.2400/-.

3.10. The Education Department of the State Government passed another resolution dated 28.02.2013 modifying its earlier resolution dated 15.05.2012 and approval was granted for 24 posts of teaching staff instead of 19 posts. However, as far as non teaching staff is concerned, the approval granted to the 27 posts earlier, vide resolution dated 15.05.2012 was made subject to certain conditions. Only with regard to four posts of non teaching staff which inter alia included the post of Supervisor (Civil), it was decided that the said post may be filled in by appointing a person on a fixed pay for the period of five years.

3.11. Since the resolution dated 28.02.2013 passed by the Education Department of State Government carves out an exception only on

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respect of four posts of non teaching staff, from the operation of the resolution dated 15.5.2012, the respondent no.3-University wrote a letter on 24.04.2013 to the State Government to reconsider the approval granted for the appointment of four posts of non teaching staff on fixed pay and to grant fresh approval to appoint them on regular pay-scale. It was specifically pointed out in this letter, the State Government had sanctioned inter alia one permanent post of Supervisor (Civil) way back on 23.01.1998.

3.12. The respondent no.3-University vide its office order dated 11.10.2014 directed to make the payment of Rs.10,000/- per month from October, 2014 onwards. The petitioner therefore while acknowledging this gesture on the part of the respondent no.3-University requested to give the said benefit to the petitioner with effect from 08.12.2009 vide his letter dated 16.10.2014.

3.13. Pursuant to the representation made by the petitioner on 16.10.2014, the respondent no.3- University issued an Office order determining the amount payable to the petitioner at Rs.5,77,742/- at the rate of Rs.10,000/- per month with effect from 18.12.2009 to 13.09.2014. It was further made clear in the said letter that the petitioner was also paid Rs.10,000/- per month for the

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period from 01.10.2014 to 13.06.2015. It was further indicated in the said letter that with effect from 14.04.2015, the additional pay of the petitioner was enhanced from Rs.10,000/- to Rs.13,000/- and accordingly, an additional amount of Rs.7645/- was payable to the petitioner. It was also made clear that from 01.07.2015 the petitioner should be paid additional salary of Rs.13,000/- per month.

3.14. During his tenure of about 15 years with the respondent no.3-University, the petitioner received various certificates from the respondent no.3-University acknowledging his services. A certificate dated 06.12.2005 was issued by the In-Charge Registrar stating therein that the petitioner was working as Civil Supervisor on contract basis since 11.10.2001. The petitioner was looking after the work of establishment and development of University's new campus and he has total work experience with the University was of about 4 years and 2 months and he has been getting Rs.4500/- plus applicable allowances. One more certificate was issued by the Vice Chancellor of the respondent no.3-University on 06.12.2005 stating therein that the petitioner was sincere, hardworking and honest gentleman. The petitioner has also been issued another certificate on 07.09.2012 by the In-charge

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Registrar stating therein that the petitioner was looking after the work of establishment and development of the University's new campus and the petitioner had total work experience of 11 years.

3.15. It appears that pursuant to the Government Resolution dated 28.02.2013, the respondents no.1 issued an advertisement on or about 23.08.2016 inviting applications for certain posts of teaching as well as non teaching staff, which included one post of Supervisor (Civil) on a fixed pay of Rs.5300/- for five years. It further appears that pursuant to the said advertisement, the post of Supervisor (Civil) was filled in and resultantly the termination order of the petitioner was issued on 03.02.2017, despite the fact that as per the last appointment order dated 21.11.2016, the period of appointment was from 13.05.2016 to 12.04.2017.

3.16. On receipt of the termination order, the petitioner wrote a letter dated 10.02.2017 to the Vice Chancellor of the respondent no.3- University, Chief Minister, Deputy Chief Minister and Education Minister as well as the Secretary, Education Department stating therein that though he has been working with the respondent no.3- University for more than 15 years, his services

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were terminated without any just and proper reason and the order passed by the respondent no.3-University was absolutely Illegal and unlawful and it would amount to unfair labour practice. The petitioner also pointed out that as per the various resolutions passed by the State Government and the decisions of the High Courts and Supreme Court to contend that, if any employee has put up the service of more than 10 years, though on fixed pay, service of such employees should be regularized. The petitioner therefore, requested to cancel the termination order and to reinstate the petitioner on his original post with same pay-scale and benefits.

4.1. Learned advocate Ms.Niyati Shah submitted that the petitioner was working with the respondent No.3-University on the post of Supervisor (Civil) since 11.10.2001 to 03.02.2017 till his services were terminated by the respondent No.3 vide order dated 3rd February, 2017 is contrary to the Government Resolutions and Rules and Regulations.

4.2. It was submitted that the order dated 03.02.2017 was passed without issuance of any notice and without giving any opportunity of being heard the petitioner.

4.3. Learned advocate Ms.Shah submitted that the

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State Government by Resolution dated 23rd May, 1995 and 23rd January, 1998 authorized the respondent No.3-University to fill in the vacancies of various teaching and non-teaching staff on sanctioned and permanent posts which includes the post of Supervisor (Civil), however, because of instructions issued by the State Government to avoid any financial burden as per Resolutions dated 24.05.2000 and 18.09.2000, the respondent No.3 was directed to fill up the sanctioned posts on contract basis. It was pointed out that the petitioner was appointed on sanctioned posts as per the Resolution of the State Government passed in the year 1998 but the appointment letter was issued to the petitioner on contract basis in view of the Government Resolutions of 2000.

4.4. It was submitted that the appointment of the petitioner was made on contract basis only due to the financial crunch suffered by the State Government at the relevant point of time and therefore, the appointment of the petitioner was on a sanctioned post in the year 2001 and the petitioner was continued in services for more than fifteen years and issuance of subsequent Government Resolutions dated 15.05.2012 and 28.03.2013 sanctioning again the said posts as if such posts are created for the first time after 19 years of commencement of the respondent No.3- University and inviting fresh applications for

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such sanctioned posts instead of absorbing the petitioner on such sanctioned post are arbitrary, illegal and unjust.

4.5. It was therefore submitted that the petitioner has challenged the Government Resolutions dated 15.05.2012 and 28.02.2013 as it provides that the post of Supervisor (Civil) and the respondent No.3-University to be filled on the basis of fixed pay of Rs.5,000/- per month for a period of five years because in the facts of the case such Resolutions would not apply to the petitioner who was discharging his duties since 2001 on the sanctioned post of Supervisor (Civil) as such post was already created and sanctioned by virtue of the Government Resolution dated 23rd January, 1998.

4.6. It was submitted that the State Government did not taken into consideration the earlier Resolutions dated 23rd January, 1998, 24th May, 2000 and 18th September, 2000 while passing the Resolutions dated 15.05.2012 and 28.02.2013. It was submitted that both the Government Resolutions dated 15.05.2012 and 28.02.2013 are therefore bad in law, arbitrary and discriminatory, violating the Articles 14 and 16 of the Constitution of India to the extent so far as it again sanctioned the post of Supervisor (Civil) which was already created and sanctioned post by virtue of Resolution dated 23rd January,

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1998.

4.7. Learned advocate Ms.Shah further submitted that the Resolutions dated 15.05.2012 and 28.02.2013 have omitted to consider the earlier Resolutions on the basis of which the appointment of the petitioner was made on contractual basis by the respondent No.3-University.

4.8. It was submitted that as per the Government Resolution dated 16.02.2006, the employees who have completed service of five years satisfactory in Class-III and Class-IV, their services are required to be considered for regularization. It was submitted that the petitioner has completed more than 15 years of service and though the petitioner along with the others have made various representations for regularization of service and the respondent No.3 made recommendations before the State Government, the State Government again passed a Resolution on 15.05.2012 for filling 19 posts of teaching staff and 27 posts of non-teaching staff which includes the post of Supervisor (Civil) in pay scale of Rs.5,200/-Rs.20,200/- with annual increment of Rs.2,400/-. It was therefore submitted that in view of the facts emerging from the records, the respondent No.3 was not justified in termination of the service of the petitioner by appointing the respondent No.4 on the same post.

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4.9. Learned advocate Ms.Shah for the petitioner submitted that the service of the petitioner could not have been terminated on the basis of the Government Resolution dated 28th February, 2013 though the contractual period was to come to an end on 12th April, 2017. It was pointed out that the Government Resolution dated 28.02.2013 which prescribes for appointment on the post of Supervisor (Civil) for the period of five years cannot be sustained in law and the same is contrary to the Section 20(e) of the Dr.Babasaheb Amberdkar Open University Act, 1994 which provides for the manner of appointment of the Teachers and other employees of the University, qualifications, Code of conduct and other conditions of service including the manner of termination of service and other disciplinary actions.

4.10. It was submitted that the petitioner was appointed after considering his qualifications by direct recruitment as per the Statute 16 and 17 which provides for the appointment of the employees other than Teachers and Officers read with Ordinance 17 issued under Statute 16 by the Board of Management of the respondent No.3- University.

4.11. It was submitted that the petitioner could not have been removed from service contrary to the Statutes and the Rules of the respondent

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No.3-University. It was submitted that there is also violation of Statute 24 which deals with removal of employees of the respondent-University which also provides for providing a reasonable opportunity of show cause against the action proposed to be taken against the petitioner. It was submitted that the petitioner was in service for more than 15 years with the respondent No.3- University on a sanctioned post and only because of the financial crunch, the petitioner was appointed on contract basis and hence the petitioner cannot be deprived from being regularly appointed on the sanctioned post and services of the petitioner could not have been terminated considering the petitioner being appointed on contractual basis.

4.12. It was submitted that the respondent- University has wrongly treated the petitioner having been appointed on contractual basis contrary to the facts to the effect that the petitioner was appointed after undergoing regular process of selection made pursuant to the advertisement by open competition as well as oral interview and only because of the Government Resolution of 2000 and on account of financial crunch the petitioner was appointed on contractual basis. It was therefore submitted that service of the petitioner cannot be terminated or dispensed with or replaced by new recruitment of respondent No.4 on a fix pay for a

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fixed term of five years pursuant to the advertisement issued in month of August, 2016 by the respondent No.3-University.

5.1. On the other hand, learned advocate Mr.Mitul appearing for the respondent No.3-University submitted that it is not in dispute that the petitioner was appointed on contractual basis for the first time for a period of one year vide office order dated 03.10.2001 which came to be continued and extended from time to time till the services of the petitioner was terminated vide office order dated 03.02.2017 and therefore, the post on which the petitioner was working on contractual basis was to be filled on regular basis on fix salary for a period of five years initially as per the Government Resolution dated 28th February, 2013. It was submitted that the respondent No.3 therefore published the advertisement dated 23.08.2016 for filling up the post on regular basis on fix salary for a fix term of five years on which the petitioner was serving on contractual basis. It was submitted that in response to this advertisement the petitioner never applied and thereafter, exercise to fill up the post was under taken and respondent No.4 was selected for the post of Supervisor (Civil) and appointment letter dated 05.12.2016 was issued by the respondent No.3- University to the respondent No.4. It was submitted that the Government Resolution dated

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23.01.1998 stipulates about sanction of the post but the same does not speak about the manner or mode by which this post to be filled in whereas, Government Resolution dated 15.05.2012 provides for sanction to fill up the post on conditions which are stated therein.

5.2. It was submitted that the respondent No.3- University issued the advertisement dated 07.07.2001 to fill up the post on contract basis on fix salary and there was no intention of the University to fill up the post on regular basis and therefore even retired person was considered eligible to apply in the said advertisement. It was therefore submitted that as the petitioner was appointed on contractual basis, there is no question either to consider the petitioner for regularization by University or to accept the prayer of regularization made before this Court because if such prayer is accepted, it would amount to violation of Articles 14 and 16 of the Constitution of India qua number of other persons who did not apply pursuant to the advertisement issued in 2001 as the appointment was to be made on contractual basis. It was therefore submitted that now at belated stage service of the petitioner cannot be regularized from contractual service resulting into back door entry of the petitioner in regular service. Reliance was placed on the decision of the Secretary, State Of

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Karnataka And Others vs Umadevi And Others1. It was submitted that the petitioner is estopped from his claim to be regularized in the service on the post of Supervisor (Civil) as he was appointed on a contractual basis because what is not permissible directly cannot be done indirectly and when the things are expected to be done in a particular manner it requires to be done in that manner only and variation from the same would be illegal.

5.3. It was further submitted that by Government Resolution dated 28th February, 2013, the respondent No.3-University was permitted to fill in the post of Supervisor (Civil) for a period of five years on a fix salary along with other post in non academic staff of the University. It was submitted that Government Resolution dated 28th February, 2013 is a policy decision and therefore no interference may be made by this Court as the earlier two Resolutions dated 29.04.2010 and 06.10.2011 issued by the Finance Department are not challenged by the petitioner.

5.4. It was submitted that by letter dated 24.04.2013 request was made to the Education Department to permit the University to fill up the post in the pay scale and pay band by regularizing the service of the petitioner but as no reply was received for more than three years

1 2006 4 SCC 1

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and the respondent No.3-University being grant- in-aid University getting the grant from the Government of Gujarat through Education Department was required to implement the Government Resolution dated 28th February, 2013 for regular appointment of the staff on fix pay for a fix period for five years. It was therefore submitted that as the petitioner was appointed on contractual basis he has no right to claim regularization and accordingly, he was asked to vacate the post for regular selectee pursuant to the advertisement issued by the respondent No.3- University in the year 2016.

5.5. The respondent No.3-University has also filed an additional affidavit to explain the procedure under taken by the respondent No.3-University after passing of the Government Resolution dated 23.01.1998 to point out that as per the Government Resolution dated 24.05.2000, sanction post were permitted by way of deputation or accommodating surplus or on contractual basis or appointing retired person on contract basis so that no permanent responsibility is created by making appointment on contract basis. It was also pointed out that by Government Resolution dated 18.09.2000, conditions were prescribed to fill up the post and accordingly, the Board of Management in the 15th meeting held on 08.06.2001 decided to fill up the post of Supervisor (Civil) on contractual basis. It was submitted that in the

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advertisement issued on 07.07.2001, it was never disclosed that one who is selected and appointed on contractual basis on fix salary would be regularized. It was therefore contended that as the petitioner accepted the appointment on contractual basis which came to be extended from time to time, the petitioner cannot claim for regularization on the post as per the condition of service on contractual appointment and he has no right to be regularized.

5.6. Learned Assistant Government Pleader Mr.Desai has placed on record the Government Resolutions dated 04.06.2009, 29.04.2010 and 06.10.2011 which are referred to in the Government Resolution dated 28th February, 2013 to point out that the State Government has considered the relevant Resolutions.

5.7. Learned advocate Mr.Desai further relied upon the following averments made in the affidavit-in- reply filed on behalf of the respondent No.2- Commissioner of Higher Education :

"2. I say and submit that by Government Resolution dated 23.05.1995, the State Government had initially sanctioned total of 8 posts of teaching as well as non-teaching staff for the Respondent No.3-University. That on 23.01.1998, State Government again sanctioned 31 posts for teaching and non-teaching staff for Respondent No.3 University which includes the post of Supervisor (Civil) which is in question.

3. I say and submit that subsequently because of the heavy financial burden on the State Government, Government Resolution dated 24.05.2000 was issued. By

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this particular Government Resolution 20% of the post which got sanctioned for Respondent No.3-University by Government Resolution dated 23.05.1995 and 23.01.1998 got cancelled and the certain conditions were levied on the other posts. That as per the Government Resolution dated 24.05.2000, no direct recruitment would be allowed on any post and that the employees were to be appointed on contractual basis and not on regular basis. Accordingly the post in question i.e. Supervisor (Civil) which was sanctioned in vide G.R. dated 23.01.1998, the appointment was only allowed to make on contractual basis.

4. I submit that in the year 2012 i.e. on 28.02.2012, Respondent No.3 University wrote a letter to the Respondent Authority stating that because of the G.R. dated 24.05.2000, the Respondent University is unable to fill up the post of non-teaching staff on regular basis and thus requested the Respondent Authority to remove the conditions which were imposed to the University vide G.R. dated 24.05.2000.

5. That because of the said letter issued by the Respondent University, the Respondent No.1 Authority constituted a meeting and permission was given to the university to fill up the post which were sanctioned vide G.R. dated 23.01.1998. That the said permission was given by G.R dated 15.05.2012. That pursuant to G.R. dated 15.05.2012 another G.R. was issued dated 28.02.2013 with certain clarifications in reference to G.R. dated 15.05.2012.

6. I say and submit that the 1998 G.R. speaks only about sanctioning of posts but does not speak about how the post are to be filled in. That pursuant to that as per the G.R. of 2000 it was clarified that, no direct recruitment will be allowed on the sanctioned post and only contractual appointment will be done because of the financial burden on the State. That it was for the first time in 2012, permission was given by the Respondent Authority to fill up the post on regular basis. That till then the post were to be sanctioned only on contractual basis and not on regular basis.

7. Thus in view of the above submission, I say and submit that vide G.R. of 2012-13, no new post were sanctioned by the Respondent Authority. It was only with reference to the mode and manner in which the sanctioned post were to be filled."

5.8. Learned advocate Mr.Afzal Khan Pathan

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appearing for the respondent No.4 adopted the arguments made on behalf of the respondent No.1 to 3 and submitted that the respondent No.4 is appointed after following due process as per the advertisement issued by the respondent No.3- University in the year 2016 and the services of the respondent No.4 cannot be affected in any manner. It was submitted that this petition is not maintainable under Article 226 of the Constitution of India as there is no termination of the petitioner but by the order dated 03.02.2017, the contract was put to an end. It was submitted that there is no violation of Articles 14 and 19(1)(g) of the Constitution of India. As there is alternative efficacious remedy available to the petitioner to approach the Lobour Court for the grievances raised in this petition, the petition is required to be dismissed. It was also pointed out that there is no cause of action arising against the respondent No.4 who has been appointed after following the due process of selection by the respondent No.3- University in accordance with law.

6. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that the petitioner was appointed pursuant to the advertisement dated 07.07.2001 after being selected for the post of Supervisor (Civil) which was sanctioned post as per the Government

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Resolution dated 23.01.1998 (page 41).

7. From the affidavits filed on behalf of the respondent No.3-University, it is revealed that the respondent No.3-University after passing of the Government Resolution dated 23.01.1998 was constrained to issue the advertisement of 07.07.2001 to appoint the requisite staff on contractual basis in view of the Government Resolutions issued in the year 2000 restraining the respondent No.3-University from making the regular appointments on account of financial crunch.

8. Therefore in view of the above undisputed facts, though the petitioner was appointed on contract basis by the respondent No.3-University and was continued as such for more than 15 years, the respondent No.3-University could not have removed or terminated the service of the petitioner on the ground that he was appointed on contractual basis in the year 2001.

9. It is pertinent to note that the Government Resolution dated 28.02.2013 which refers to the earlier Government Resolutions dated 15.05.2012 never referred to the Government Resolution dated 23.01.1998 at all. The Government Resolution dated 23.01.1998 is never cancelled or withdrawn and the sanctioned post which was created in the year 1998 continued to be sanctioned so far as

C/SCA/5519/2017 JUDGMENT DATED: 31/08/2021

the respondent No.3-University is concerned and therefore, in the Government Resolution dated 15.05.2012 an error is appeared to have been committed to again sanction the teaching and non teaching staff of the respondent No.3-University after more than 14 years. Thus, the Government Resolution dated 15.05.2012 is not tenable in view of the Government Resolution dated 23.01.1998 and the same is therefore required to be quashed and set aside. Therefore, once the Government Resolution dated 15.05.2012 which was issued particularly for the respondent No.3- University for the sanction of the post is not sustainable, the subsequent Government Resolution dated 28.02.2013 can also not be continued to operate.

10. In such circumstances, both the Government Resolutions dated 15.05.2012 and 28.02.2013 are required to be quashed and set aside. However, so far as respondent No.4 who is appointed pursuant to the advertisement issued by the respondent No.3-University as per the Government Resolution dated 28.02.2013 for a fix salary for a fix period of five years is concerned, as the same would come to an end in the year 2021, the respondent No.3-University is directed to continue the respondent No.4 till completion of five years in 2021.

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11. In view of the above facts emerging from the record and after considering the Government Resolutions passed from time to time in detail it appears that the State Government has committed an error by issuing the Government Resolution dated 15.05.2012 and consequent Government Resolution dated 28.02.2013 to permit the University to appoint the regular teaching and non teaching staff and hence, both the Government Resolutions dated 15.05.2012 and 28.02.2013 are hereby quashed and set aside. Accordingly, the order dated 03.02.2017 issued by the respondent No.3-University is also hereby quashed and set aside. The petitioner is required to be reinstated within 8 weeks from the date of receipt of the writ of this order and the respondent No.3-University is to take appropriate action for appointing the petitioner on regular basis within a period of six months thereafter. The petitioner shall continue to work as Supervisor (Civil) with the respondent No.3- University, however, no back wages would be payable to the petitioner for the interregnum period from 2017 till date the petitioner resumes the duty. So far as the respondent No.4 is concerned, no prejudice will be caused to him by this order and the respondent No.3-University shall continue the service of respondent No.4 till completion of fix period of five years on a fix salary which would come to an end in the year 2021.

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12. For the foregoing reasons, the petition is allowed as per the aforesaid directions. Rule is made absolute to the aforesaid extent. No orders as to cost.

(BHARGAV D. KARIA, J) PALAK