Meenal Rakesh Shah vs Ahmedabad Municipal Corporation
2022 Latest Caselaw 6128 Guj

     C/SCA/4448/2019                                JUDGMENT DATED: 11/07/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4448 of 2019


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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                             MEENAL RAKESH SHAH
                                   Versus
                       AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
IG JOSHI(8726) for the Petitioner(s) No. 1
VYOM H SHAH(9387) for the Petitioner(s) No. 1
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 11/07/2022

                               ORAL JUDGMENT

1. Heard Mr.Ishan Joshi learned advocate for the

petitioner and Mr.Hamesh Naidu learned advocate

for the respondent-Corporation.

C/SCA/4448/2019 JUDGMENT DATED: 11/07/2022

2. At the outset, the prayer made in the petition needs

to be reproduced, which reads as under:

"A. To hold and declare that the inaction of the Respondent Corporation of not paying the Petitioner as per their advertisement for the post of Telephone Operator is violative of Article 14 and 16 of the Constitution of India and to hold and declare that the Petitioner is entitled to the pay scale of 1,200 - 2,040/- and all the revisions attached to the said pay scale from her actual date of joining the Respondent Corporation and all consequential benefits that follow."

3. Facts in brief would indicate that the petitioner was

appointed on the post of 'Telephone Operator' by the

respondent Corporation on 23.11.1991 as per

advertisement dated 17.02.1990. The petitioner

assumed charge on the same position from

01.02.1992. She was being paid a pay scale of

Rs.950-1500/-.

4. It appears that facing the threat of termination from

service, she approached the Ahmedabad City Civil

Court challenging her termination, which according

to her, was as a result of representations that she

was making for being entitled to the pay scale of

Rs.1200-2040/-. The order of status-quo was

C/SCA/4448/2019 JUDGMENT DATED: 11/07/2022

granted by the Trial Court which continued to

operate till the City Civil Court finally decreed the

suit in favour of the petitioner by an order dated

28.02.2017 holding that the termination of the

petitioner was in violation of principles of 'Last

Come First Go' and in violation of principles of

natural justice. This was because the petitioner's

name figured at serial no.3 in the merit list. She

subsequently raised an industrial dispute claiming

the pay of Rs.1200-2040/- by filing Reference (IT)

No.43 of 2003. The Tribunal by an award dated

02.02.2012 partly allowed the reference holding that

the petitioner was entitled to the pay scale of

Rs.1200 - 2040/- with effect from 01.01.2006 to

01.01.2012. On challenge to the award of the

Industrial Tribunal at the hands of the petitioner, the

petition was dismissed on the ground of delay.

5. Mr.Ishan Joshi learned advocate for the petitioner

would submit that the terms of the advertisement

unequivocally set out that the pay scale of a

Telephone Operator would be Rs.1200-2040/-. She

C/SCA/4448/2019 JUDGMENT DATED: 11/07/2022

therefore was entitled to the pay scale in question.

He would therefore submit that it is not open for an

employer to digress from the terms of the

advertisement. For the relief prayed for, Mr.Joshi

would also rely on the pay slip of one of the

Telephone Operators appointed with the Corporation

on 29.06.1999 where the pay scale awarded to such

appointee was pre-revised pay scale of Rs.1200-

2040/-.

5.1 Mr.Joshi would further submit that irrespective

of the finding of the Tribunal restricting the claim

for the award of the pay scale, this Court ought not

to be deterred, in exercise of powers under Article

226 of the Constitution of India, in granting the

relief which normally would the petitioner be

entitled to.

5.2 In support of his submission, Mr.Joshi would

rely on a decision of the Supreme Court in case of

Somesh Thapliyal and Another v. Vice

Chancellor, H.N.B. Garhwal University and

C/SCA/4448/2019 JUDGMENT DATED: 11/07/2022

Another reported in (2021) 10 SCC 116 to submit

that the petitioner was facing the threat of

termination since 1992. It was finally decided in the

year 2017. The priority of the petitioner was to

secure the job rather than lose it and as held by the

Supreme Court in case of Somesh (supra), there

was no choice but to accept the terms and conditions

contained in the appointment letter rather than lose

job opportunity and question the terms.

5.3 Reliance was also placed on the decision in

case of State of Punjab and others v. Jagjit

Singh and others reported in (2017) 1 SCC 148

to submit that when the nature of duties are the

same as compared to the other colleague viz. Sudha

Khandelwal, she should be given the same benefit.

5.4 Reliance was also placed on the decision in

case of Bedanga Talukdar v. Saifudaullah Khan

and others reported in (2011) 12 SCC 85, to

submit that it is not open for the employer to relax

the conditions of the appointment.

C/SCA/4448/2019 JUDGMENT DATED: 11/07/2022

6. Mr.Hamesh Naidu learned advocate appearing for

the Corporation would invite the Court's attention to

the terms of reference, particularly the operative

portion thereof, the order of this Court dismissing

the petition on the reply filed opposing the present

petition and submit that the petition is misconceived

on the ground of delay and the same is also

reopening an issue which is already concluded.

7. The short ground on which this petition can be

dismissed is that, true it is that the petitioner's

job/employment was in a state of suspended

animation till she secured a decree in her favour by

the decree of the Civil Court dated 28.02.2017.

However, what needs to be appreciated is that she

had raised an industrial dispute even prior thereto in

the year 2003 craving the benefit of the revised

grade of Rs.1200-2040/-. The terms of reference

before the Tribunal when perused in context of the

prayer referred to hereinabove would indicate that

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she had prayed for a revised grade as aforesaid akin

to the petitioner's prayers made in the present

petition.

8. It is in this context that the Tribunal awarded part

relief extending the benefit of the scale prayed for

with effect from 01.01.2006. The award of the

Tribunal was dated 02.02.2012. Six years thereafter

Special Civil Application No.21070 of 2018 was filed

which was dismissed on the ground of delay in

challenging the reference. The Court while

dismissing it on the ground of delay took note of the

fact that merely because a suit for permanent

injunction was filed, it could hardly be a ground to

ignore the delay.

9. Mr.Joshi's submission in respect of the judgments of

the Supreme Court even if not disputed, are not so

disputed in the facts of the present case. What

emerges from the record is that even prior to the

decree of Civil Court, the petitioner had made a

C/SCA/4448/2019 JUDGMENT DATED: 11/07/2022

claim for pay scale of Rs.1200-2040/- before the

Tribunal which adjudicated the same and granted a

part relief. A challenge to the award failed. A

litigation attained finality in context of the relief that

was sought for and the prayer in the present petition

also tantamounts to reopening the issue that was

closed and therefore the same cannot be granted.

10. The petition is accordingly dismissed. Notice is

discharged.

(BIREN VAISHNAV, J) ANKIT SHAH