Gujarat High Court
Vice Chancellor vs Amulaben Narendrabhai Nimavat on 17 April, 2023
Bench: Hasmukh D. Suthar
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 461 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 8816 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI Sd/-
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
VICE CHANCELLOR
Versus
AMULABEN NARENDRABHAI NIMAVAT & 2 other(s)
================================================================
Appearance:
MR RUTVIJ OZA with MR MITRAJEET S SHUKLA(10827) for the
Appellant(s) No. 1
for the Respondent(s) No. 3
MR KURVEN DESAI, AGP for the Respondent(s) No. 2
MR CHINTAN N DESAI(9940) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 17/04/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
1. This appeal is filed under clause 15 of the Latest Patent
against the order dated 5.7.2022 rendered by the learned Single
Judge in Special Civil Application No.8816 of 2020 partly
allowing the petition filed by the private respondent - original
petitioner.
2. Heard learned advocate Mr Rutviz Oza assisted by learned
advocate Mr.Mitrajeet Shukla for the appellant, learned advocate
Mr.Chintan Desai for the respondent no.1 - original petitioner
and learned AGP Mr.Kurven Desai for the respondents nos.2 and
3.
3. Learned advocate Mr.Oza appearing for the appellant
submitted that the original petitioner was appointed as Kitchen
Worker/ Kitchen Aaya by the original respondent no.3, i.e. the
present appellant, on 7.9.1994. Her services came to be
terminated on 30.11.2002. It is alleged by the original petitioner
that her services were terminated without following the due
procedure and, therefore, she raised an industrial dispute, which
was referred to the concerned Labour Court and registered as
Reference (LCJ) No.13 of 2005 before the Labour Court,
Jamnagar. It is submitted that the Labour Court, Jamnagar,
passed an award on 29.6.2013, whereby the Labour Court partly
allowed the reference and directed the present appellant to
reinstate the petitioner on her original post with continuity in
service, however, without back wages.
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
4. It is submitted, at this stage, that the petitioner filed the
captioned petition before this Court, wherein the petitioner has
prayed for the following reliefs :
"(A) This Hon'ble Court may be pleased to issue a writ of
mandamus and/or any other appropriate writ, order or
direction to respondents to consider the case of the petitioner
herein for regularization of service on the post on which the
petitioner is working and further be pleased to direct the
present respondents to pay all the benefits including the
benefits of pay scale and other incidental benefits at par
with the permanent employees of the Gujarat Ayurvedic
University;
(B) Pending hearing and final hearing of this petition, Your
Lordships may kindly be pleased to direct the present
respondent No.3 to not to change the service conditions of
the present petitioner.
(C) This Hon'ble Court may kindly be pleased to pass
such other and further order which deems to fit, just and
proper in the interest of justice."
5. It is submitted that the learned Single Judge party allowed
the said petition and thereby did not grant the relief prayed for
by the petitioner for regularization, however, the learned Single
Judge directed the present appellant to pay to the petitioner
salary in the minimum of the pay scale as paid to the regularly
appointed employees on the post of Kitchen Worker/ Kitchen
Aaya.
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
6. Being aggrieved and dissatisfied with the order passed by
the learned Single Judge, the appellant has preferred the present
appeal.
7. Learned advocate Mr.Oza has assailed the impugned order
passed by the learned Single Judge mainly on the ground that
on one hand the learned Single Judge has not entertained the
petition filed by the petitioner with regard to the relief prayed for
by the petitioner for regularization of service, and on the other
hand, learned Single Judge has issued impugned direction to
pay salary in the minimum of the pay scale. It is further
submitted that the learned Single Judge has observed that the
petitioner shall also be entitled to other emoluments like D.A.,
etc. as has been paid to the regularly appointed employees.
Learned advocate, therefore, urged that the impugned direction
issued by the learned Single Judge be quashed and set-aside.
Learned advocate Mr.Oza, at this stage, would submit that it was
the case of the present appellant before the learned Single Judge
that the original petitioner was not appointed after following the
due procedure as per the recruitment rules and she was not
qualified as per the requirement rules. It is further submitted
that the original petitioner has not been appointed on the post in
the prescribed setup. Learned advocate further submitted that
the Central Government, Ministry of Law and Justice, while
issuing the notification, enacted the Institute of Teaching and
Research in Ayurveda Act, 2020 (for short, 'ITRA' Act). A copy of
the said Act is placed at page Z-15 of the compilation. It is
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
further submitted that though the petition was filed prior to the
enactment of the Act 2020, during the pendency of the said
petition, the petitioner did not join the said authority as party
respondent. Mr.Oza submitted that even the original petitioner
was aware about the aforesaid aspect but she has not pointed
out the same. Inspite of that, the impugned direction has been
issued by the learned Single Judge to the present appellant. It is
submitted that the ITRA is a necessary and proper as well as
affected party to the proceeding and, therefore, on this ground
the order passed by the learned Single Judge be set-aside.
8. On the other hand, learned advocate Mr.Chintan Desai
opposed this appeal and referred to the reasoning recorded by
the learned Single Judge. It is submitted that the learned Single
Judge has, though not entertained the prayer with regard to the
request made by the petitioner for regularization of service, yet
while placing reliance upon the decision rendered by the Hon'ble
Supreme Court in the case of State of Punjab versus Jagjit
Singh and others, reported in (2017) 1 SCC 148, has rightly
issued the direction to the present appellant. Learned advocate,
at this stage, has also placed on record a decision rendered by a
Division Bench of this Court in the case of Mahuva
Municipality versus Maheshbhai Jinabhai Sarvaiya passed
in the LPA No.1036 of 2016. Learned advocate has more
particularly referred to and relied upon paragraphs nos.11 to 13
of the said decision. Learned advocate urged that when the
learned Single Judge has not committed any error while partly
allowing the captioned petition, this Court may not entertain the
present appeal.
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
9. We have considered the submissions canvassed by the
learned advocates. We have also perused the materials placed on
record. It is not in dispute that the original petitioner was
appointed as Kitchen Worker/ Kitchen Aaya on 7.9.1994 and her
services came to be terminated on 30.11.2002. The dispute was
referred to the Labour Court and the Labour Court passed an
award on 29.6.2013, whereby the Labour Court partly allowed
the reference of the petitioner and a direction was issued to the
present appellant to reinstate the petitioner on her original post
with continuity in service. It is also not in dispute that the
petitioner is working on the post in question since last 26 years.
It is a specific case of the original petitioner that she was doing
the same work as was being done by the other permanent
employees. Further, it was her specific case that she was
selected by way of regular selection process and she possesses
the requisite qualification for appointment on the post in
question. It is true that looking to the facts of the present case
the learned Single Judge has not entertained the prayer made by
the petitioner with regard to regularization of service and liberty
is granted to the petitioner to file appropriate proceedings before
the appropriate forum. It is relevant to note that the learned
Single Judge has considered the nature of the work carried out
by the petitioner as well as the other similarly situated
employees working with the appellant and the learned Single
Judge, after placing reliance upon the decision rendered by the
Hon'ble Supreme Court in the case of Jagjit Singh (supra) issued
the impugned direction. In the case of Jagjit Singh (supra), the
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
Hon'ble Supreme Court has held in paragraphs nos.44, 45, 54,
55 and 58 as under :
"44. We shall first outline the conclusions drawn in cases
where a claim for pay parity, raised at the hands of the
concerned temporary employees, was accepted by this
Court, by applying the principle of 'equal pay for equal
work', with reference to regular employees:-
(i) In the Dhirendra Chamoli, this Court examined a
claim for pay parity raised by temporary employees,
for wages equal to those being disbursed to regular
employees. The prayer was accepted. The action of not
paying the same wage, despite the work being the
same, was considered as violative of Article 14 of the
Constitution. It was held, that the action amounted to
exploitation - in a welfare state committed to a
socialist pattern of society.
(ii) In the Surinder Singh, this Court held, that the
right of equal wages claimed by temporary employees
emerged, inter alia, from Article 39 of the Constitution.
The principle of 'equal pay for equal work' was again
applied, where the subject employee had been
appointed on temporary basis, and the reference
employee was borne on the permanent establishment.
The temporary employee was held entitled to wages
drawn by an employee on the regular establishment.
In this judgment, this Court also took note of the fact,
that the above proposition was affirmed by a
Constitution Bench of this Court, in the D.S. Nakara.
(iii) In the Bhagwan Dass, this Court recorded, that
in a claim for equal wages, the duration for which an
employee would remain (or had remained) engaged,
would not make any difference. So also, the manner of
selection and appointment would make no difference.
And therefore, whether the selection was made on the
basis of open competition or was limited to a cluster of
villages, was considered inconsequential, insofar as
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
the applicability of the principle is concerned. And
likewise, whether the appointment was for a fixed
limited duration (six months, or one year), or for an
unlimited duration, was also considered
inconsequential, insofar as the applicability of the
principle of 'equal pay for equal work' is concerned. It
was held, that the claim for equal wages would be
sustainable, where an employee is required to
discharge similar duties and responsibilities as
regular employees, and the concerned employee
possesses the qualifications prescribed for the post. In
the above case, this Court rejected the contention
advanced on behalf of the Government, that the plea
of equal wages by the employees in question, was not
sustainable because the concerned employees were
engaged in a temporary scheme, and against posts
which were sanctioned on a year to year basis.
(iv) In the Daily Rated Casual Labour Employed
under P&T Department through Bhartiya Dak Tar
Mazdoor Manch, this Court held, that under principle
flowing from Article 38(2) of the Constitution,
Government could not deny a temporary employee, at
least the minimum wage being paid to an employee in
the corresponding regular cadre, alongwith dearness
allowance and additional dearness allowance, as well
as, all the other benefits which were being extended to
casual workers. It was also held, that the
classification of workers (as unskilled, semi-skilled
and skilled), doing the same work, into different
categories, for payment of wages at different rates,
was not tenable. It was also held, that such an act of
an employer, would amount to exploitation. And
further that, the same would be arbitrary and
discriminatory, and therefore, violative of Articles 14
and 16 of the Constitution.
(v) In State of Punjab v. Devinder Singh, this Court
held, that daily- wagers were entitled to be placed in
the minimum of the pay-scale of regular employees,
working against the same post. The above direction
was issued after accepting, that the concerned
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
employees, were doing the same work as regular
incumbents holding the same post, by applying the
principle of 'equal pay for equal work'.
(vi) In the Secretary, State of Karnataka, a
Constitution Bench of this Court, set aside the
judgment of the High Court, and directed that daily-
wagers be paid salary equal to the lowest grade of
salary and allowances being paid to regular
employees. Importantly, in this case, this Court made
a very important distinction between pay parity and
regularization. It was held that the concept of equality
would not be applicable to issues of
absorption/regularization. But, the concept was held
as applicable, and was indeed applied, to the issue of
pay parity - if the work component was the same. The
judgment rendered by the High Court, was modified
by this Court, and the concerned daily-wage
employees were directed to be paid wages, equal to
the salary at the lowest grade of the concerned cadre.
(vii) In State of Haryana v. Charanjit Singh, a three-
Judge bench of this Court held, that the decisions
rendered by this Court in State of Haryana v. Jasmer
Singh, State of Haryana v. Tilak Raj, the Orissa
University of Agriculture & Technology, and
Government of W.B. v. Tarun K. Roy, laid down the
correct law. Thereupon, this Court declared, that if the
concerned daily-wage employees could establish, that
they were performing equal work of equal quality, and
all other relevant factors were fulfilled, a direction by a
Court to pay such employees equal wages (from the
date of filing the writ petition), would be justified.
(viii) In State of U.P. v. Putti Lal, based on decisions in
several cases (wherein the principle of 'equal pay for
equal work' had been invoked), it was held, that a
daily-wager discharging similar duties, as those
engaged on regular basis, would be entitled to draw
his wages at the minimum of the pay-scale (drawn by
his counterpart, appointed on regular basis), but
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
would not be entitled to any other allowances or
increments.
(ix) In the Uttar Pradesh Land Development
Corporation case33 this Court noticed, that the
respondents were employed on contract basis, on a
consolidated salary. But, because they were actually
appointed to perform the work of the post of Assistant
Engineer, this Court directed the employer to pay the
respondents wages, in the minimum of the pay-scales
ascribed for the post of Assistant Engineer.
45. We shall now attempt an analysis of the judgments,
wherein this Court declined to grant the benefit of 'equal pay
for equal work' to temporary employees, in a claim for pay
parity with regular employees:-
(i) In the Harbans Lal case, daily-rate employees
were denied the claimed benefit, under the principle of
'equal pay for equal work', because they could not
establish, that the duties and responsibilities of the
post(s) held by them, were similar/equivalent to those
of the reference posts, under the State Government.
(ii) In the Grih Kalyan Kendra Workers' Union case,
ad-hoc employees engaged in the Kendras, were
denied pay parity with regular employees working
under the New Delhi Municipal Committee, or the Delhi
Administration, or the Union of India, because of the
finding returned in the report submitted by a former
Chief Justice of India, that duties and responsibilities
discharged by employees holding the reference posts,
were not comparable with the posts held by members
of the petitioner union.
(iii) In State of Haryana v. Tilak Raj, this Court took
a slightly different course, while determining a claim
for pay parity, raised by daily- wagers (- the
respondents). It was concluded, that daily-wagers
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
held no post, and as such, could not be equated with
regular employees who held regular posts. But herein
also, no material was placed on record, to establish
that the nature of duties performed by the daily-
wagers, was comparable with those discharged by
regular employees. Be that as it may, it was directed,
that the State should prescribe minimum wages for
such workers, and they should be paid accordingly.
(iv) In State of Punjab v. Surjit Singh, this Court held,
that for the applicability of the principle of 'equal pay
for equal work', the respondents who were daily-
wagers, had to establish through strict pleadings and
proof, that they were discharging similar duties and
responsibilities, as were assigned to regular
employees. Since they had not done so, the matter
was remanded back to the High Court, for a re-
determination on the above position. It is therefore
obvious, that this Court had accepted, that where
duties, responsibilities and functions were shown to
be similar, the principle of 'equal pay for equal work'
would be applicable, even to temporary employees
(otherwise the order of remand, would be
meaningless, and an exercise in futility).
(vi) It is, therefore apparent, that in all matters
where this Court did not extend the benefit of 'equal
pay for equal work' to temporary employees, it was
because the employees could not establish, that they
were rendering similar duties and responsibilities, as
were being discharged by regular employees, holding
corresponding posts.
54. There is no room for any doubt, that the principle of
'equal pay for equal work' has emerged from an
interpretation of different provisions of the Constitution. The
principle has been expounded through a large number of
judgments rendered by this Court, and constitutes law
declared by this Court. The same is binding on all the courts
in India, under Article 141 of the Constitution of India. The
parameters of the principle, have been summarized by us in
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
paragraph 42 herein above. The principle of 'equal pay for
equal work' has also been extended to temporary employees
(differently described as work-charge, daily-wage, casual,
ad-hoc, contractual, and the like). The legal position, relating
to temporary employees, has been summarized by us, in
paragraph 44 hereinabove. The above legal position which
has been repeatedly declared, is being reiterated by us, yet
again.
55. In our considered view, it is fallacious to determine
artificial parameters to deny fruits of labour. An employee
engaged for the same work, cannot be paid less than
another, who performs the same duties and responsibilities.
Certainly not, in a welfare state. Such an action besides
being demeaning, strikes at the very foundation of human
dignity. Any one, who is compelled to work at a lesser
wage, does not do so voluntarily. He does so, to provide
food and shelter to his family, at the cost of his self respect
and dignity, at the cost of his self worth, and at the cost of
his integrity. For he knows, that his dependents would
suffer immensely, if he does not accept the lesser wage. Any
act, of paying less wages, as compared to others similarly
situate, constitutes an act of exploitative enslavement,
emerging out of a domineering position. Undoubtedly, the
action is oppressive, suppressive and coercive, as it compels
involuntary subjugation.
57. Having traversed the legal parameters with reference
to the application of the principle of 'equal pay for equal
work', in relation to temporary employees (daily-wage
employees, ad-hoc appointees, employees appointed on
casual basis, contractual employees and the like), the sole
factor that requires our determination is, whether the
concerned employees (before this Court), were rendering
similar duties and responsibilities, as were being
discharged by regular employees, holding the
same/corresponding posts. This exercise would require the
application of the parameters of the principle of 'equal pay
for equal work' summarized by us in paragraph 42 above.
However, insofar as the instant aspect of the matter is
concerned, it is not difficult for us to record the factual
position. We say so, because it was fairly acknowledged by
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
the learned counsel representing the State of Punjab, that all
the temporary employees in the present bunch of appeals,
were appointed against posts which were also available in
the regular cadre/establishment. It was also accepted, that
during the course of their employment, the concerned
temporary employees were being randomly deputed to
discharge duties and responsibilities, which at some point in
time, were assigned to regular employees. Likewise, regular
employees holding substantive posts, were also posted to
discharge the same work, which was assigned to temporary
employees, from time to time. There is, therefore, no room for
any doubt, that the duties and responsibilities discharged
by the temporary employees in the present set of appeals,
were the same as were being discharged by regular
employees. It is not the case of the appellants, that the
respondent-employees did not possess the qualifications
prescribed for appointment on regular basis. Furthermore, it
is not the case of the State, that any of the temporary
employees would not be entitled to pay parity, on any of the
principles summarized by us in paragraph 42 herein above.
There can be no doubt, that the principle of 'equal pay for
equal work' would be applicable to all the concerned
temporary employees, so as to vest in them the right to claim
wages, at par with the minimum of the pay-scale of
regularly engaged Government employees, holding the same
post.
58. In view of the position expressed by us in the foregoing
paragraph, we have no hesitation in holding, that all the
concerned temporary employees, in the present bunch of
cases, would be entitled to draw wages at the minimum of
the pay-scale (at the lowest grade, in the regular pay- scale),
extended to regular employees, holding the same post."
10. The Division Bench of this Court in the case of Mahuva
Municipality (supra) has observed in paragraphs nos. 11, 12 and
13 as under :
"11. Considering this, the Hon'ble Supreme Court observed
that in the judgment of Umadevi, the Court had made very
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
important distinction between pay parity and regularization.
It was held that the concept of equality would not be
applicable to issues of absorption/regularization but the
concept was held as applicable and was indeed applied to
the issue of pay parity. After considering various judgments
of the Hon'ble Supreme Court on this issue, the Hon'ble
Supreme Court held as under:
"49 We have given our thoughtful consideration to
the observations recorded by this Court, as were relied
upon by the full bench (- as also, by the learned
counsel representing the State of Punjab). It is not
possible for us to concur with the inference drawn by
the full bench, for the reasons recorded hereunder:-
49.1 We are of the considered view ,that in paragraph
44 extracted above, the Constitution Bench clearly
distinguished the issues of pay parity, and
regularization in service. It was held, that on the issue
of pay parity, the concept of 'equality' would be
applicable (as had indeed been applied by the Court,
in various decisions), but the principle of 'equality'
could not be invoked for absorbing temporary
employees in Government service, or for making
temporary employees regular/permanent. All the
observations made in the above extracted paragraphs,
relate to the subject of regularization/permanence,
and not, to the principle of 'equal pay for equal work'.
As we have already noticed above, the Constitution
Bench unambiguously held, that on the issue of pay
parity, the High Court ought to have directed, that the
daily-wage workers be paid wages equal to the
salary, at the lowest grade of their cadre. This
deficiency was made good, by making such a
direction.
49.2 Insofar as paragraph 48 extracted above is
concerned, all that needs to be stated is, that they
were merely submissions of learned counsel, and not
conclusions drawn by this Court. Therefore, nothing
further needs to be stated, with reference to
paragraph 48.
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
49.3 We are therefore of the view, that the High Court
seriously erred in interpreting the judgment rendered
by this Court in the Secretary, State of Karnataka
case, by placing reliance on paragraphs 44 and 48
extracted above, for drawing its inferences with
reference to the subject of pay parity. On the above
subject/issue, this Court's conclusions were recorded
in paragraph 55 (extracted in paragraph 36, herein
above), which have already been dealt with by us in
an earlier part of this judgment."
11.1 The Hon'ble Supreme Court, therefore for the reasons
stated in the aforesaid judgment in the case of Jagjitsingh &
Ors., (supra) was of the view that the claim of the temporary
employees for minimum wages on par with regularly
engaged government employees cannot be declined. Final
directions were issued by the Hon'ble Supreme Court in
paragraph 61 of the judgment holding that they had no
hesitation that all temporary employees concerned would be
entitled to draw wages minimum to the pay-scale at the
lowest in the regular pay-scale extended to regular
employees holding the same post.
12. In view of the above, the direction given by the
Industrial Tribunal with respect to the respondents to be
given the benefit of regularisation and permanency under
the Municipality and so confirmed by the learned Single
Judge is hereby quashed and set aside. However, in
accordance with the law laid down in the case of Jagjitsingh
& Ors., (supra), we are of the opinion and so hold that the
respondents herein who are working as Clerks/Class-IV
employees are entitled to the minimum pay-scale (along with
Dearness Allowance as revised from time to time) as is
available to the regular employees holding the same post. In
other words, those respondents herein who are discharging
their duties in the cadre of Clerks shall be entitled to draw
wages at par with the minimum of the regular pay-scale of
Rs.3,050-4,590/- from the date of the award i.e.
04.07.2015. Those respondents who are engaged on the
posts of Class-IV shall also be extended such benefit of
wages at par with minimum of the regular pay-scale revised
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
from time to time on the same lines as being given to a
regular Class-IV employees from the date of award i.e.
04.07.2015. The appellant Municipality is directed to extend
the benefit of the granting wages at par with the minimum
of the pay-scale revised from time to time to the respondents
herein together with arrears from the date of award.
13. Taking into consideration the fact that it has come on
record that the respondents are working with the
Municipality for more than two decades and that the
establishment containing various clerical posts and other
cadres was sanctioned as early as in the year 1973 and in
view of divergent activities in the field of public services and
considering the administrative set up as on date it will be
open for the municipality to forward a proposal to the
competent authority by providing details about requirement
of personnel in various departments of the municipality. As
and when such set up is approved by the competent
authority, claim of respondents - employees based on their
experience and qualification together can be considered for
their claim towards permanency in regular set up of
municipality keeping in mind the seniority of other
employees also. The order impugned passed by the learned
Single Judge is modified accordingly. The appeals are partly
allowed with the aforesaid directions."
11. Keeping in view the aforesaid decisions rendered by the
Hon'ble Supreme Court as well as the Division Bench of this
Court, if the facts of the present case are carefully examined, we
are of the view that the learned Single Judge has rightly applied
the principle of 'equal pay for equal work', thereby issuing
direction to the present appellant to pay to the respondent no.1 -
original petitioner the salary in the minimum of the pay scale as
paid to the regularly appointed employees on the post of Kitchen
Worker/ Kitchen Aaya. Learned Single Judge, while issuing the
said direction, has specifically clarified that for the period
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
between the date of termination of the petitioner, i.e. 24.2.2003,
till the date of reinstatement, i.e. 13.12.2013, the petitioner will
not be entitled for the difference of salary actually paid and the
salary payable as per the minimum of pay scale.
12. With regard to the next contention raised by the learned
advocate Mr.Oza appearing for the appellant, it is pertinent to
note that after the Act of 2020 came to be enacted in September
2020, the concerned Superintendent (In-charge) working under
the appellant has filed an affidavit before this Court on
11.12.2020, a copy of which is placed at page 88 of the
compilation. In the said affidavit, the deponent has not pointed
out the aspect that the services of the original petitioner are
transferred to the ITRA. Even during the course of hearing of the
captioned petition before the learned Single Judge, the said
contention was not taken by the appellant before the learned
Single Judge. During the course of argument of the present
appeal, learned advocate Mr.Oza has fairly submitted that the
present appellant had filed a review application before the
learned Single Judge, however, the said review application has
been withdrawn. Thus, we are of the view that the aforesaid
contention is also misconceived and it was, in fact, the duty of
the present appellant to point out the relevant aspect to the
learned Single Judge. We are not impressed by the said
contention. It is relevant to note that when the responsible
officer like the Superintendent (In-charge) of the appellant has
filed the affidavit, it was incumbent upon the officer to point out
the correct aspect before the Court, however, now at this belated
stage, such type of contention is taken. It is further relevant to
C/LPA/461/2023 JUDGMENT DATED: 17/04/2023
note that when the petitioner had filed the petition, the aforesaid
ITRA Act was not enacted by the Parliament, however, when the
affidavit came to be filed by the Superintendent (In-charge) of the
appellant on 11.12.2020, the said Act was enacted. Inspite of
that, he has not pointed out this aspect before the learned Single
Judge and now at this belated stage when the learned Single
Judge issued a direction, such type of contention is taken.
Therefore, we are not impressed by the said contention.
13. We have also gone through the reasoning recorded by the
learned Single Judge while giving the impugned direction and we
are of the view that the learned Single Judge has not committed
any error while issuing the said direction and, therefore, no
interference is required in the present appeal. Therefore, the
appeal is dismissed in limine.
(VIPUL M. PANCHOLI, J.)
(HASMUKH D. SUTHAR, J.)
/MOINUDDIN
