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2003 Supreme(Bom) 895
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Kochar R.J. Deshpande A.P., JJ.
Shobha M. Bhave (Dr.) others .... Petitioners.
Versus
State of Maharashtra another.... Respondents.
Writ Petition Nos. 1129, 32, 1233, 1403, 1536, 1967, 2017, 2584, 2585, 4147 of 2002 W.P. Nos. 317, 318, 759, 935, 2289, 2499, 2705, 2708, 2834 of 2003, decided on 8-8-2003.
Advocates appeared :
Anand Parchure Vyas, in W.P. Nos. 1129, 1233, 1403/2002, for petitioners.
A.G. Mujumdar, A.G.P. in W.P. Nos. 1129, 1403, 2585/2002 in 2705/2003, for respondents.
N.W. Sambre in W.P. No. 32/2002, for petitioner.
T.R. Kankale, A.G.P. in W.P. No. 32/2002 in 317/2003, for respondents.
N.S. Khubalkar, A.G.P. in W.P. No. 1233/2002 in 935/2003, for respondents.
Parchure, A.V. Khare Thakre, in W.P. Nos. 1536, 1967, 4147/2002, for petitioner.
Marpakwar, Pathak, Mamdalwar in W.P. No. 1536/2002, for petitioners.
S.S. Wandile, A.G.P. in W.P. No. 1536/2002, for respondent Nos. 1 2, in 2289/2003, for respondents in W.P. Nos. 759, 2289/2003, for respondents.
Tayade Smt. Anjali Joshi in W.P. No. 1536/2002, for respondent No. 3.
T.D. Khade, A.G.P. in W.P. No. 1967/2002, for respondent.
S.V. Naik in W.P. No. 2017/2002, for petitioners.
A.S. Sonare, A.G.P. in W.P. Nos. 2017, 4147/2002 in 2834/2003, for respondents.
A.V. Bhide in W.P. Nos. 2584, 2585/2002, for petitioner.
S.J. Jichkar, A.G.P. in W.P. No. 2584/2002, for respondents.
Parchure in W.P. Nos. 317, 318, 759, 935, 2499/2003, for petitioner.
N.R. Borkar in W.P. No. 2289/2003, for petitioner.
A.S. Fulzele, A.G.P. in W.P. Nos. 2499, 2708/2003, for respondents.
Khandekar Thakre in W.P. Nos. 2705, 2708/2003, for petitioner.
Marpakwar in W.P. No. 2834/2003, for petitioner.
Headnote:CONSTITUTION OF INDIA - Article 320 - Employment of - Regularisation of - Incumbents in an ad hoc basis without con- currence of competent authority - Not clothe the incumbents with a right to claim regularisation. - In the present petitions, the MPSC is not even jointed as a party/respondent. The State is under an obligation to consult MPSC while filing in the posts concerned. The said obligation is cast by Article 320 of the Constitution of India. This being the position in law, granting regula- risation to the petitioners, would be illegal, besides being unjust and unfair to those candidates, who want to compete when substantive appointments are to be made in the concerned posts by following the selection process by MPSC. Perusal of the judgment of the Apex Court reported in (2003) 3 SCC 485, it would be seen that the same clinches the issue. The Apex Court has held that mere continuance of incumbents in the office on an ad hoc basis, without concurrence of the authority, with whom consultation is a must, does not clothe the incumbents with a right to claim regularisation.
Maharashtra Government Resolution Dated 10.4.2003 - Employment - Non-bonded candidates - Replacement of - Earlier policy of Govt. - Replacing non- bonded candidates by other non- bonded candidates or bonded candidates - Inconsistent with law - Government Resolution dated 10.4.2003 holding such replacement inconsistent is just and proper. - The grievance made by the petitioners that they ought not to be replaced by bonded candidates does not really survive in view of the stand taken by the State Government, which is consistent with the policy decision contained in Government Resolution dated 10th April, 2003. By the said Government Resolution, a policy decision is taken that the earlier policy of replacing non-bonded candidates by bonded candidates, being inconsistent with the law laid down by the Apex Court "that one set of ad hoc employees should not be replaced by another set of ad hoc employees", the same is discontinued and it is then laid down that non-bonded candidates ought not to be replaced by bonded candidates as appointments of both the category of candidates are, in fact, on ad hoc basis. This being the position, there is no dispute that non-bonded candidates cannot, either be replaced by another non-bonded candidates or by bonded candidates and vice-versa. Having regard to the stand taken by the State Government, it is clear that in all the petitions relief claimed by the petitioners seeking quashing of that part of the order passed by the M.A.T. which permits replacement of ad hoc bonded candidates by appointment of bonded candidates on ad hoc basis, has to be granted
2.None of the petitioners are regularly selected candidates and are required to be replaced by a duly selected candidate by M.P.S.C. in accordance with the procedure prescribed. In some of the petitions the services of the petitioners were sought to be terminated with a view to appoint another set of ad hoc employees and in some of the cases, non-bonded candidates were sought to be replaced by bonded candidates, and as such, the petitions were filed before the Maharashtra Administrative Tribunal seeking a declaration that one set of ad hoc employees cannot be replaced by another set of ad hoc employees and in the submission of the petitioners, as the non-bonded candidates and the bonded candidates are to be appointed on an ad hoc basis, one cannot replace the other. The Maharashtra Administrative Tribunal, did protect the services of the petitioners and it did declare that the services of the petitioners cannot be replaced by another ad hoc employee except the bonded candidates. Aggrieved by the exception made by the M.A.T., permitting the State Government to appoint bonded candidates in place of non-bonded candidates, the present petitions have been filed.
3.In so far as the grievance made by the petitioners that they ought not to be replaced by bonded candidates does not really survive in view of the stand taken by the State Government, which is consistent with the policy decision contained in Government Resolution dated 10th April, 2003. By the said Government Resolution, a policy decision is taken that the earlier policy of replacing non-bonded candidates by bonded candidates, being inconsistent with the law laid down by the Apex Court "that one set of ad hoc employees should not be replaced by another set of ad hoc employees", the same is discontinued and it is then laid down that non-bonded candidates ought not to be replaced by bonded candidates as appointments of both the category of candidates are, in fact, on ad hoc basis. This being the position, there is no dispute that non-bonded candidates cannot, either be replaced by another non-bonded candidates or by bonded candidates and vice versa. Having regard to the stand taken by the State Government, it is clear that in all the petitions relief claimed by the petitioners seeking quashing of that part of the order passed by the M.A.T. which permits replacement of ad hoc non-bonded candidates by appointment of bonded candidates on ad hoc basis, has to be granted.
4.The next question that arises for adjudication is as to whether the petitioners are entitled to claim regularisation in employment? It is not in dispute that there is absolutely no rule which permits such a regularisation. More so, the Rules oblige the State to make the appointments of lecturers by following a due procedure and by selection through M.P.S.C.
