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Case Number

Special Civil Application No. 2170 of 1981

Advocates

S.N.Shelat
S.M.Shah

Judges

Hon'ble Mr. Justice Manharlal Bhikhalal Shah

Acts

provisions of Ordinance 54 of the Gujarat Ayurved University Act.
INDUSTRIAL DISPUTES ACT

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Smart Summary

Summary of Opinion — M.B. Shah, J. (Special Civil Application)

Factual and Procedural Background

The petitioner sought a writ directing Gujarat Ayurved University (the respondent) to treat her as a permanent midwife in the hospital run by the University and to restrain the respondent from discontinuing her service as a midwife.

Relevant factual assertions made by the petitioner (as recorded in the opinion):

The petitioner was first appointed on 27 June 1985 for a period of three months as a midwife.
Thereafter the respondent continued the petitioner on the same post by issuing further three-month appointment orders, with occasional artificial breaks of one or two days.
The last appointment order placed on record is Annexure "G", dated 11 March 1987, which states the petitioner was appointed "purely on temporary basis for a period of three months as a midwife against the post of Staff Nurse" and that after three months she would be deemed relieved.
The petitioner produced an advertisement by the respondent inviting applications for various posts including midwife, listing an essential qualification that candidates must not be more than 35 years of age.

Procedural steps recorded in the opinion:

The petition was heard and affidavit-in-reply was filed by the respondent (Registrar of Gujarat Ayurved University).
The petitioner's prayers were considered by the Court and ultimately dismissed by the judgment reported in this opinion.

Legal Issues Presented

Whether a person who has been given repeated ad hoc or temporary appointments (with short artificial breaks) acquires a right to be appointed permanently to that post despite not being selected by the prescribed Selection Committee under the Recruitment Rules.
Whether terminating the petitions' ad hoc service would violate Articles 14 and 16 of the Constitution of India (as contended by the petitioner).
Whether the protection under Section 25F of the Industrial Disputes Act applies (i.e., whether the petitioner's services cannot be terminated because she has completed 240 days on the post).

Arguments of the Parties

Petitioner's Arguments

The petitioner claimed continuous service with only brief artificial breaks since 1985 and therefore asserted a right to be made permanent on the post she was holding (midwife).
The petitioner contended that termination of her services would violate Articles 14 and 16 of the Constitution.
The petitioner (through counsel) also relied on Section 25F of the Industrial Disputes Act, asserting that having completed 240 days on the post, her services could not be terminated.

Respondent's Arguments

The Registrar stated that the petitioner had applied for the post of Midwife and was considered by a Selection Committee constituted under Ordinance 54 of the Gujarat Ayurved University Act on 2 March 1985, but the Selection Committee did not find the petitioner fit for the post.
The petitioner was thereafter offered an ad hoc appointment (three months) against vacant Staff Nurse posts; the appointment dated 27 June 1985 was not the result of selection by the Selection Committee and was explicitly temporary.
The respondent pointed out that the petitioner exceeded the prescribed maximum age of 35 for the midwife post and so was not eligible at subsequent interviews; the ad hoc appointment was offered on sympathetic grounds but did not create a right to permanency.
Regarding Section 25F, the respondent argued that the contention was premature because the services of the petitioner had not yet been terminated; the respondent further stated it would follow the procedure of Section 25F if termination were contemplated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Special Civil Application No. 711/85 (R.C. Mankad, J.), decided 14 July 1985	Held that giving repeated very short-term appointment orders (29 days) with apparent intention to prevent the appointee from acquiring any right could be arbitrary and violative of Articles 14 and 16.	The Court distinguished this case: it found the ratio inapplicable because in the present matter Recruitment Rules existed and the petitioner had not been selected under the prescribed procedure; therefore the earlier case did not support making an ad hoc appointee permanent here.
Rattanlal v. State of Haryana, (1985) 4 SCC 43 : AIR 1987 SC 478	Condemned long-term 'ad hocism' in teacher appointments; directed State Government to fill vacancies in accordance with relevant rules and allowed ad hoc teachers to remain till vacancies were filled; permitted sympathetic consideration (including age relaxation) for those disadvantaged by ad hoc appointments.	The Court cited this authority to support the proposition that vacancies should be filled in accordance with Recruitment Rules and to condemn prolonged ad hoc appointments; however, the Court read it as not conferring a general right to permanency on ad hoc appointees who were ineligible under the Recruitment Rules.

Court's Reasoning and Analysis

The court's analysis proceeded through the following steps, based solely on the material recorded in the opinion:

Selection Committee Determination: The court accepted the respondent's assertion that the petitioner was considered by the Selection Committee (constituted under Ordinance 54) and was not selected for appointment to the midwife post. On a subsequent occasion the petitioner was also found ineligible because she was over the maximum age of 35 as prescribed by the Recruitment Rules.
Nature of Appointment: The appointment orders produced (including Annexure "G" dated 11 March 1987) explicitly stated that the petitioner was appointed "purely on temporary basis for a period of three months" as a midwife but against a Staff Nurse post, and that she would be deemed relieved after the three months.
Legal Effect of Ad Hoc Appointments: The court held that an ad hoc or temporary appointment, made without following the prescribed Recruitment Rules and without selection by the competent Selection Committee, does not confer upon the appointee a right to permanent appointment. Such a reading is necessary to preserve the effectiveness and purpose of Recruitment Rules; otherwise, ad hoc appointments could be used to bypass the rules, producing arbitrariness and unfairness to eligible candidates.
Policy Against 'Ad Hocism': While recognizing that ad hoc appointments may be legitimately used to meet temporary administrative needs, the court emphasized that prolonged or exploitative ad hoc appointments—used to deprive appointees of rights or to block regular recruitment—are objectionable. The court relied on the Supreme Court decision in Rattanlal to underline the duty of authorities to fill vacancies according to rules and to avoid sustained 'ad hocism'.
Distinguishing Precedent: The court distinguished the earlier Mankad decision relied upon by the petitioner on the ground that in that case respondents had not filed any return and appeared to be deliberately issuing short-term orders to deny rights, whereas in the present case the existence of Recruitment Rules and selection processes meant the Mankad ratio was inapplicable.
Section 25F Contention: The court noted the petitioner's reliance on Section 25F (that services cannot be terminated after 240 days). The respondent countered that this contention was premature since the petitioner's services had not been terminated. The respondent's counsel (Mr. Shelat) stated that if termination were contemplated, the respondent would follow the procedure prescribed under Section 25F. The court treated the Section 25F argument as not determinative at that stage.
Conclusion from Application of Law to Facts: On the facts before it (non-selection by the Selection Committee; ad hoc appointment expressly temporary and against a different post; petitioner being over age limit for the advertised post), the court concluded that directing the respondent to treat the petitioner as a permanent employee would subvert the Recruitment Rules and enable appointment without competition or qualification and therefore could not be permitted.

Holding and Implications

HOLDING: The petition is dismissed. The Court rejected the petitioner's claim to be treated as a permanent midwife on the basis of her ad hoc/temporary service.

Implications and immediate consequences:

The direct effect is that the petitioner does not acquire a right to permanent appointment by virtue of the ad hoc temporary appointments described in the record; the respondent is not directed to treat her as a permanent employee.
The Court made clear that ad hoc appointments do not automatically convert into permanent appointments where Recruitment Rules prescribe selection procedures; permitting such conversion would undermine Recruitment Rules and could lead to arbitrariness and unfairness to eligible candidates.
The Court noted the respondent's statement that it will follow the procedure under Section 25F of the Industrial Disputes Act if termination is contemplated; the Court did not decide on any Section 25F entitlement because services had not been terminated at the time of the judgment.
There is no indication in the opinion that the Court intended to lay down any new legal precedent beyond the application of established principles condemning prolonged 'ad hocism' and upholding recruitment procedures. The decision is limited to the facts and legal contentions presented in this petition.

Disposition recorded in the opinion: "Petition dismissed. Notice discharged."

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Patel Evelin Ranchhodbhai v. The Gujarat Ayurved University .

M.B Shah, J.:— In this Special Civil Application it is the prayer of the petitioner that the respondent-Gujarat Ayurved University be directed by an appropriate writ, order or direction to treat her as a permanent employee as midwife in the hospital run by the University. The petitioner has further prayed that the respondent may be ordered to desist from discontinuing the petitioner from service as midwife in the hospital of the respondent.

2. It is the contention of the petitioner that the petitioner was first appointed by the order dated 27th June, 1985 for a period of three months as a midwife. Thereafter the respondent continued the petitioner on the said post by giving appointment orders for three months with some 1 or 2 days of artificial break. The last order which she has produced on record is at Annexure “G” which is dated 11th March, 1987 which mentions that the petitioner was appointed purely on temporary basis for a period of three months as a midwife against the post of Staff Nurse. The order further states that after the period of three months is over, the petitioner would be deemed to have been relieved. The petitioner has also annexed an advertisement issued by the respondent inviting applications from the candidates for the various posts wherein applications for the post of midwife are also invited. One of the essential qualifications for the said post is that the candidate should not be more than 35 years.

3. The learned advocate for the petitioner vehemently submitted that since 1985 the petitioner is in service of the respondent except few days' artificial break and, therefore, the petitioner should be made permanent on the post on which she is working and, therefore, the respondent should be restrained from terminating the petitioner's services because the said termination would be in violation of Articles 14 and 16 of the Constitution of India.

4. On behalf of the respondent, the Registrar of the Gujarat Ayurved University has filed Affidavit-in-reply. It has been pointed out that the petitioner had applied for appointment to the post of Midwife. She was considered on 2-3-85 by a Selection Committee duly constituted under the provisions of Ordinance 54 of the Gujarat Ayurved University Act. The Selection Committee did not find the petitioner fit for the post. However, a few posts of Staff Nurse in the Institute of Post-graduate Teaching and Research of Gujarat Ayurved Unversity were lying vacant. The petitioner was offered ad hoc appointment for a period of three months on a purely temporary basis. It has been clarified that the petitioner was not selected by the Staff Selection Committee for appointment on regular post and that the appointment dated 27-6-1985 was not in pursuance of the selection by the Selection Committee. It has been further pointed out that as per Recruitment Rules for the post of midwife, the qualifying age of the candidate is 35 years and that at the subsequent interview the petitioner was not qualified in view of the eligibility criteria as she was more than 35 years. But after taking sympathetic view towards the petitioner, she was offered the post on ad-hoc basis and, therefore, there was no question of any arbitrariness on the part of the University. It has been pointed out that the petitioner has been appointed purely on ad hoc basis whenever there is vacancy.

5. In my view, once the petitioner is not selected by the Selection Committee of the respondent, the petitioner has no right to be appointed on the post merely on the ground that she was offered post for a few months on ad hoc basis. The appointment order produced with the petition clearly indir cate that against the post of Staff Nurse the petitioner was appointed as midwife purely on a temporary basis for a period of three montns. For the post where there are recruitment rules which provide that the recruitment should be in accordance with the Rules by a Selection Committee by following proper procedure, it cannot be said that the person who is appointed purely on ad hoc basis, without following the proper procedure would get a right to be appointed permanently on the said post. If this contention is accepted, the Recruitment Rules would become nugatory or otiose and the Department can favour any person or appoint any person without following any procedure of Recruitment Rules. This would lead to arbitrariness. If this contention is accepted, persons who are eligible and qualified of being appointed would be the sufferers as they would not get any chance of being considered for the appointment. The result would be that those persons who are not qualified would get appointment by the order of Court merely on the ground that they were appointed on ad hoc basis. It should not be forgotten that if there are vacancies in a particular cadre and the said vacancies are not filled in for some reasons as per the Recruitment Rules, it is open tot he Department to appoint persons on ad hoc basis for running the administration. This type of appointment would not confer any right on them. This, however, does not mean that the authorities can appoint persons on ad hoc basis for a number of years depriving them of their chance of being appointed to other post for which they are eligible and the authorities should not be permitted to exploit the employees by appointing them on ad hoc basis so that the appointees may not get any benefit available to permanent employees. But if the Department is following the Recruitment Rules for making appointment to the particular post, it cannot be said that they are acting arbitrarily or in violation of Article 14 or 16.

6. The learned advocate for the petitioner relied on the judgment in Special Civil Application No. 711/85 decided by R.C Mankad, J. on 14th July 1985. In that case the petitioner was appointed as a peon in 1980 and he continued to work upto 1984 with alleged breaks in service for 1 or 2 days. In that case the appointment orders were issued for 29 days. In spite of the service of the notice to the respondents, the averments made in the petition were not controverted by the respondents. No return was filed on their behalf. The Court, therefore, held that it would appear that the respondents were giving the petitioner appointment for only 29 days thinking that he would not require any right over the post to which he was appointed. Therefore, the action of the respondents in giving appointment orders in the manner they have done appears to be arbitrary and that his services could not have been terminated by an order. The Court, therefore, held that the action of terminating his services was arbitrary and it has no basis in law. Hence the action was clearly violative of Articles 14 and 16 of the Constitution. In my view, the ratio laid down in that case would have no bearing in this case. Once there are Recruitment Rules which provide for appointment to a particular post by following the recruitment rules, any appointment in violation of the said rules would be illegal and arbitrary one. May be that till the vacancies are filled in by regular appointees, the authority may appoint some persons on ad hoc basis, but these appointees would not get any right to be permanent servants.

7. Mr. Shah further relied upon the decision of the Supreme Court in the case of Rattanlal v. State of Haryana, (1985) 4 SCC 43 : AIR 1987 Supreme Court 478. In that case the question before the Supreme Court was whether it was open to the State Government to appoint teachers on an ad hoc basis at the commencement of academic year and terminate their services before the commencement of the next summer vacation, or earlier, to appoint them again on an ad hoc basis at the commencement of next academic year and to terminate their services before the commencement of the succeeding summer vacation or earlier and to continue to do so year after year. In that case the Court held that it is the duty of the State Government to take steps to appoint teachers in those vacancies in accordance with the rules as early as possible and that the State Government has failed to discharge its duty because it has been appointing teachers for quite some time on an ad hoc basis for short periods as stated above without any justifiable reason. The Court deprecated the policy of ‘ad hocism’ followed by the State Government for a long period. In my view, this decision on the contrary lays down that the Authority should fill in the post in accordance with the rules, i.e Recruitment Rules. Even the direction given by the Supreme Court in paragraph 2 of the judgment clearly shows that the Supreme Court had directed the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on an ad hoc basis were working. Paragraph 2 reads as under:

“We, therefore, direct the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on an ad hoc basis are now working and to allow all those teachers who are now holding these posts on ad hoc basis to remain in those posts till the vacancies are duly filled up. The teachers who are now working on such ad hoc basis if they have the prescribed qualification may also apply for being appointed regularly in those posts. The State Government may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of this system of ‘ad hoc’ appointments. If any of the petitioners in these petitions has under any existing rule acquired the right to be treated as a regularly appointed teacher, his case shall be considered by the State Government and an appropriate order may be passed in his case.”

8. It is true that normally ad hoc appointment should not be given for a long term. If an employee is continued on a particular post without being regularly appointed under the Recruitment Rules, his chances of being appoint to other post for which he is eligible may be marred. Further, the State Government or other statutory authority should not be encouraged to appoint employees on ad hoc basis with a purpose that ad hoc employees do not get any right to the post or other benefits available to the permanent employees. But that does not mean that merely because a person is appointed on ad hoc basis for some period either on sympathetic view or because of the lethargy or delay on the part of the authority in not filling up the post on due dates, the employee gets a right to be appointed as a permanent employee. If ad hoc employees are made permanent by the orders of the Court merely on the ground that they have worked on the post for some period, then the entire Recruitment Rules or procedure for a particular post could be easily bypassed by the persons having authority to appoint employees on ad hoc basis.

9. In this case admittedly the petitioner was not selected by the Selection Committee constituted as per the Recruitment Rules. On the next occasion also she was not eligible to be appointed. She was appointed on ad hoc basis as a midwife against the post of Staff Nurse i.e not on the post of midwife. This would mean that at the relevant time there were no vacancies in the post of midwife. Therefore, if the respondents are directed to consider the petitioner as a permanent employee, the result would be that the petitioner who was not selected under the Recruitment Rules would get the benefit of being appointed to the post with or without due qualification or without facing any competition from other eligible candidates. In my view, this cannot be permitted.

10. With regard to the contention of the learned advocate for the petitioner that in view of Section 25F of the Industrial Disputes Act services of the petitioner cannot be terminated as she has completed 240 days on the post, it is the contention of the learned advocate for the respondent that this contention is at premature stage because the services of the petitioner are not yet terminated. Still, however, Mr. Shelat, learned advocate appearing on behalf of the respondent, says that before terminating the services of the petitioner the respondent would follow the procedure prescribed under Section 25F of the Industrial Disputes Act if necessary. In the result, there is no substance in the petitioner and it is rejected. Notice discharged.

11. Petition dismissed.

Patel Evelin Ranchhodbhai v. The Gujarat Ayurved University .

Summary of Opinion — M.B. Shah, J. (Special Civil Application)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Patel Evelin Ranchhodbhai v. The Gujarat Ayurved University .

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