Govindbhai Kanjibhai Patel vs Union Of India
2022 Latest Caselaw 368 Guj

     C/SCA/6247/2021                              JUDGMENT DATED: 12/01/2022


             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6247 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                            Yes

2     To be referred to the Reporter or not ?                          Yes

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                No

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution              No
      of India or any order made thereunder ?

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                         GOVINDBHAI KANJIBHAI PATEL
                                   Versus
                               UNION OF INDIA
==========================================================
Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MS REENA M KAMANI(6007) for the Petitioner(s) No. 1
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
          and
          HONOURABLE MR. JUSTICE SAMIR J. DAVE

                             Date : 12/01/2022

                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

In the facts and circumstances and having regard to the consent and request of learned advocates appearing for the parties, the petition was taken up for final consideration.

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1.1 Rule, returnable forthwith. Learned advocate Mr.P.Y. Divyeshvar waives service of notice of Rule on behalf of the respondents.

1.2 Heard learned advocate Ms.Kamani for learned advocate Mr.P.H. Pathak for the petitioner and learned advocate for the respondents.

2. The present Special Civil Application is directed against order dated 30th September, 2020 passed in Original Application No.29 of 2015 with Miscellaneous Application No.199 of 2015 and Miscellaneous Application No.277 of 2015 by the Central Administrative Branch, Ahmedabad Bench, Ahmedabad. Thereby the prayer of the petitioner- applicant for grant of arrears of salary was refused.

2.1 In the Original Application what was prayed by the petitioner was to direct the respondents to pay the arrears of salary from 16 th December, 2010 being the date of order of the Central Administrative Tribunal in previous Original Application No.304 of 2009 till 15th November, 2013 being the actual date of promotion of the petitioner-applicant. It was further prayed to declare that the petitioner was entitled to regular salary for the said period, to be paid with interest.

3. The facts in the background, stated in nutshell, were that pursuant to advertisement dated 31st December, 2007, the petitioner opted to undergo procedure to be appointed to the post of Group D in General Post Office, Ahmedabad. He had the

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qualification and applied in the general category. The pre-appointment formalities were completed in respect of the petitioner, however the selection was cancelled on the alleged ground of age bar. The representation of the petitioner before the Assistant Director of Postal Services failed and view was taken that since selection was considered in the year 2008, the crucial date was 01st July, 2008 on which date the petitioner had crossed the maximum age of 50 years to become ineligible for consideration for the appointment.

3.1 The petitioner approached Central Administrative Tribunal with Original Application No.304 of 2009 which came to be allowed as per order dated 16th December, 2010. The respondents were directed to appoint the petitioner and regularise his service. It was observed that he was already conveyed his selection to the post. The Tribunal also granted the consequential benefits except back wages.

3.2 The challenge to the said decision of the Central Administrative Tribunal at the instance of the postal authorities failed when Special Civil Application No.8462 of 2011 came to be dismissed by judgment dated 19th March, 2013 of the Division Bench. Thereafter order dated 15th November, 2003 came to be passed by the Deputy Chief Post Master, Ahmedabad GPO providing that in light of order dated 16th December, 2010 of the Central Administrative Tribunal, appointment of the petitioner shall take effect from 18th November, 2008 with all consequential benefits

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except back wages.

3.3 Since the petitioner was not paid the arrears of pay from 16th December, 2010 till actual date of appointment/promotion with effect from 15th November, 2013 as above he approached the Tribunal. He again approached the Tribunal by way of Original Application No.29 of 2015 which culminated into the impugned order.

4. In defence of non-payment of the arrears, the authorities took stand before the Tribunal that since no back wages is directed in order dated 16 th December, 2010, question of paying the arrears did not arise. The second ground raised was that the said order of the Tribunal was stayed for about two years and was vacated when this Court dismissed Special Civil Application No.8462 of 2011 on 19th March, 2013. It appears that during the pendency of the said Special Civil Application, this Court had stayed the order dated 16th December, 2010 passed by the Tribunal. The same was however vacated when Special Civil Application came to be dismissed on 19th March, 2013.

4.1 What was submitted by the petitioner that he was entitled to be given the financial benefits and arrears for the period from 16th December, 2010 till the actual date of appointment, that is 15th November, 2013, and that he was not seeking back wages. His stand was that he was not seeking back wages from the year 2008, however for the aforesaid period of stay, he ought to have been paid the benefit.

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5. Now, the Tribunal did not grant the relief to the petitioner and denied the arrears stating thus in paragraph No.9, thus.

"9. After carefully going through the documents and records placed before us and the arguments of the counsel, we arrive at the conclusion that the relief asked for in this OA in terms of arrears of pay from the date of order of this Tribunal in OA 304/2009 till 15.11.2013 i.e. the date of order of appointment is not admissible since the applicant was not in employment in this period on account of stay of the order. We are therefore, of the opinion that the applicant has not been able to make out any legally unassailable case for himself."

5.1 The petitioner is thus denied arrears of pay from 16th December, 2010 till 15th November, 2013 when he came to be appointed pursuant to the dismissal of Special Civil Application by this Court upholding the decision dated 16th December, 2010 of the Central Administrative Tribunal. This period represented the period when the stay of this Court operated in the proceedings of Special Civil Application. Denial of arrears and wages for this period on such ground could hardly sustain in eye of law.

5.2 Once this Court allowed petition by order dated 19th March, 2013 and vacated the stay, the stay order came to be merged with the final order of this Court. The interim order of stay lost its existence. What became operative was the final order of this Court which conform the order of Central Administrative Tribunal wherein direction was issued to appoint the petitioner and regularise services except payment of back wages for the past period. The currency of stay order which was finally vacated

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could not have been a ground at all to deny the back wages for that period it having merged in the final order standing in favour of the petitioner. The petitioner could not have been deprived the arrears.

5.3 It is trite principle that interim order of the Court which may have been passed during the main proceedings which may result into vacation at the end, such order would never prejudice the party succeeding in the main proceedings. The act of the Court would not operate to detriment to any party is also a dictum. Merely because this Court has passed stay order during the pendency of the petition which was finally allowed, could not have been employed to prejudice the petitioner of his rightful claim to get the arrears during the interregnum when he finally succeeded. The reference to the principle of "no work no pay", is misconceived in such a situation inasmuch as, the principle of no work no pay will not have any application.

6. As a result of above, the impugned order dated 30th September, 2020 passed by Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No.29 of 2015 with Miscellaneous Application is hereby set aside. The petitioner shall be entitled to get wages for the period from 16th December, 2010 till 15th November, 2013. The amount due towards the arrears as per the above entitlement shall be paid to the petitioner within six weeks from the date of receipt of copy of the present order.

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7. Petition is allowed accordingly. Rule is made absolute to the said extent.

(N.V.ANJARIA, J)

(SAMIR J. DAVE,J) ANUP