Gujarat High Court
Ketan Rameshchandra Gandhi vs State Of Gujarat on 9 September, 2022
Bench: Biren Vaishnav
C/SCA/5650/2021 JUDGMENT DATED: 09/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5650 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11437 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 8893 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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KETAN RAMESHCHANDRA GANDHI
Versus
STATE OF GUJARAT
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Appearance:
MR ULLASH N GOHIL(8357) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 09/09/2022
ORAL JUDGMENT
1. Heard Mr. Ullash N. Gohil, learned counsel for the
petitioners and Mr. Utkarsh Sharma, learned AGP for the
C/SCA/5650/2021 JUDGMENT DATED: 09/09/2022
respondents.
2. As far as SCA Nos.5650 of 2021 and 11437 of 2019 are
concerned, the prayers are common inasmuch as, it is the
case of the petitioners that they have been rendering
services on an ad-hoc basis for over a long period of time.
3. As far as SCA No.5650 of 2021 is concerned, the case of
the petitioner is that he was appointed as an ad-hoc
Lecturer in Electrical Engineering on 26.09.1996. He
joined on 08.10.1996. His services were then regularized
with effect from 21.01.2011 on he passing the GPSC. The
case of the petitioner is that his services from 26.09.1996
to 21.01.2011 should be treated as regular services for
pension, pay protection etc.
4. In SCA No.11437 of 2019, it is the case of the petitioner
that he was appointed as an ad-hoc lecturer on
28.10.1991. He, thereafter continued on an ad-hoc basis
till he cleared GPSC and was appointed on regular basis
C/SCA/5650/2021 JUDGMENT DATED: 09/09/2022
on 15.06.2016. Similarly, therefore it is his case that his
services from 1991 to 2016 be treated as regular for all
purposes including pay protection etc.
5. The petitioner of SCA No.8893 of 2021 is the petitioner of
SCA No.5650 of 2021 and the challenge is to the order of
recovery of an amount of Rs.31,63,434/- on the ground
that his services cannot be treated as continuous for the
period from 01.01.2006 to 30.06.2020.
6. Mr. Gohil, learned counsel for the petitioners would rely
on a decision of this Court rendered in SCA No.6907 of
2021 dated 04.04.2022, wherein, the Court has considered
the identical issue and also the question of recovery.
Relevant paragraph Nos.7 to 11 of such decision are
reproduced hereunder:
"7 The final grievance of the petitioner is with
regard to considering the period of service as an
adhoc lecturer from 12.04.1993 to 10.05.2009 as
continuous for all purposes since the petitioner has
been regularized without any break in service from
11.5.2009. What is evident from the circulars relied
C/SCA/5650/2021 JUDGMENT DATED: 09/09/2022
upon by the petitioner, especially the one at page 48
of the paper book dated 03.08.2011 is that despite
the objections of the GPSC of not accepting the
proposal, the government in exercise of its own
powers regularized the services of 111 lecturers.
7.1 Mr.Dave, learned counsel for the petitioner,
has in his submission and in the opinion of the Court
rightly so relied on two orders in the case of one
Smt.Shweta P. Dave, Asstt.Professor in
L.D.Engineering College who by an order dated
30.01.2006 got the benefits of continuity of adhoc
services rendered by her prior to the GPSC
selection. So also is evident from the order dated
15.03.2001 in the matter of Smt.Asha M. Joshi, Asstt
Professor, in the L.D.Engineering College, who also
got the same benefit.
8 Reliance placed by the learned AGP Mr.Kurven
Desai, on the communication dated 22.01.2020 in
context of the Letters Patent Appeal No. 485 of 2002
is misconceived. The decision was in context of
continuance of adhoc lecturers for indefinite periods
and not filling in the posts through regular selection.
It is in this context that the Division Bench had
deprecated the practice of adhoc lecturers being
continued and thereby resting a legitimate grievance
and creating a hope in them that they will be
absorbed. The Division Bench opined that such act of
the executive of continuing them contrary to
statutory rules is arbitrary.
9 Facts of this case would indicate that the
petitioner right from her initial appointment and
joining from 12.04.1993 to 10.05.2009 as an adhoc
lecturer and thereafter from 11.5.2009 on regular
selection has continued without break and there is
no reason therefore that the past period should not
be treated as continuous for all consequential
benefits like salary, leave, the selection grade,
C/SCA/5650/2021 JUDGMENT DATED: 09/09/2022
pension etc.
10 Accordingly, the petition is allowed. The order of
recovery dated 01.04.2021 passed by the 3rd
respondent i.e. the Principal, L.D.Engineering
College, Ahmedabad, is quashed and set aside. The
respondents are directed to treat the adhoc services
renderred by the petitioner from 12.04.1993 to
10.05.2009 as continuous for all purposes like
salary, leave, selection grade, pension etc. 10.1 As
far as the benefit of the AGP of Rs.7,000/- is
concerned, the same shall be implemented as stated
hereinabove in para 6.1.
11 What is pointed out by Mr.Dave, learned advocate
for the petitioner, is that the respondents have not
released the increments due and payable to the
petitioner as well as the installments of arrears and
the benefits of the 7th Pay Commission which are
otherwise released in favour of similarly situated
Asstt. Professors. In view of the order above, the
respondents are directed to release the increments
due and payable and installments of arrears also to
the petitioner within a period of ten weeks from the
date of receipt of copy of this order."
7. Accordingly, the petitions are allowed. The respondents
are directed to consider the case of the petitioners and
grant the benefits of continuity of service for the period
preceding their regular selection for all the benefits
including pay protection etc. The order of recovery so far
as petitioner of SCA No.8893 of 2021 is concerned, is also
quashed and set aside. Such exercise shall be carried out
C/SCA/5650/2021 JUDGMENT DATED: 09/09/2022
within a period of three months from the date of receipt of
copy of this order.
8. The petitions stand disposed of in above terms. Rule is
made absolute to the aforesaid extent. Direct Service is
permitted. No costs.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
