Gujarat High Court
State Of Gujarat vs Shah Samir Bharatbhai on 20 December, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1371 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 11567 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 1371 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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STATE OF GUJARAT
Versus
SHAH SAMIR BHARATBHAI
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Appearance:
MS MANISHA L. SHAH, ADDITIONAL ADVOCATE GENERAL, assisted
by MR SIDDHARTH RAMI, AGP the Appellant(s) No. 1,2
for the Respondent(s) No. 16
MS NAMRATA HARISHBHAI CHAUHAN(6534) for the Respondent(s)
No. 1,10,11,12,13,14,15,17,18,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY
Page 1 of 24
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Date : 20/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Additional Advocate General
Ms.Manisha Lavkumar assisted by learned Assistant
Government Pleader Mr.Siddharth Rami for the
appellant State and learned advocate Mr.Namrata
Chauhan for the respondent.
2. The present appeal under Clause 15 of the
Letters Patent preferred by the State is directed
against judgment and order dated 5.7.2023 read with
order upon the Note for Speaking-to-Minutes dated
19.7.2023 passed in Special Civil Application
thereby the appellant - original respondents came
to be directed to grant pay scale and other
benefits to the petitioners equivalent to minimum
of the pay scale of Assistant Professors appointed
on regular basis.
2.1 The directions given by learned Single Judge
are extracted from paragraph 6 of the judgment and
order,
"The respondents are directed to grant pay
scale and other benefits to the petitioners
equivalent to minimum of the pay scale of
Asst. Professor appointed on Regular basis
and to grant them the Pay and Pay-scales,
Annual increments and all other benefits at
part with them, with effect from the dates
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of their initial appointments and give all
the consequential benefits to the
petitioners, including the monetary
benefits, arrears etc. The respondents are
also directed to pay benefit of revised pay
scale to the petitioners from time to tile.
The respondents are directed to to give all
the benefits as per the Circulars dated
15/10/ 1992 and 20/7/1999 as are being
granted to the Ad Hoc Asst. Professor and
give uniform treatment to the petitioners at
par with the Ad Hoc Professor."
2.2 Thus, the directions include to grant to the
petitioners the pay-scale and other benefits
equivalent to the pay-scale granted to the
Assistant Professors appointed on regular basis. It
is further provided to extend the benefits of
annual increments and other benefits at par with
the regularly appointed Assistant Professors from
the date of initial appointments of the
petitioners.
2.2.1 Thirdly, the directions came to be issued
to pay benefit of revised pay-scale to the
petitioners time to time. Forthly, it was directed
to give all the benefits flowing from Circulars
dated 15.10.1992 and 28.07.1999 as granted to the
adhoc Assistant Professors. It was thus directed
to give uniform treatment to the petitioners at par
with the adhoc Professors.
3. In the writ petition filed by eighteen
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petitioners, it was prayed to grant to them the pay
and other benefits equivalent to the other
regularly appointed Assistant Professors. It was
further prayed to direct the respondent authorities
not to terminate the services of the petitioners
and not to alter their service conditions adverse
to them until the sanctioned post of Assistant
Professors were duly filled up by the candidate
selected by Gujarat Public Service Commission. The
petitioners prayed for extending the benefits as
per the Circulars dated 15.10.1992 and 28.07.1999,
as granted to the ad-hoc Assistant Professors. The
petitioners wanted to be treated at par with the
ad-hoc Professors in respect of the grant of
religious holidays, vacation leaves and permission
for higher studies etc.
3.1 The petitioners were appointed as Assistant
Professors in the different government engineering
colleges between the year 2011 to 2015, on
contractual basis. Their appointments were for a
period of eleven months with defeasance clause,
namely until the vacancies are filled up by Gujarat
Public Service Commission (GPSC). The petitioners
stated that they had been continued for more than
six years as GPSC was not able to make regular
appointments. It was stated that they were
qualified to be appointed on regular basis as
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Assistant Professors.
3.2 The contractual appointee petitioners invoking
the doctrine of 'equal pay for equal work' put
forth their case for treating them equally with ad-
hoc Assistant Professors / regularly selected
Assistant Professors seeking the equivalent pay
scale and other benefits. It was contended that the
scope of work and the services rendered by the
petitioners were similar and same to that of the
regular employees. It was stated that the regular
Lecturers are paid higher amount of Rs.54,236/-
including the dearness allowance, travel allowance,
house rent allowance, medical allowance and
conveyance allowance and the ad-hoc were also paid
Rs.44,540/- per month. According to the
contention of the petitioners, they are
subjected to discriminatory treatment. The
petitioners relied on the decision of the Supreme
Court in State of Punjab Vs. Jagjit Singh [(2017)
15 SCC 148].
3.3 The petition was contested by the respondents
by filing a reply. The respondent No.2 contended
that the petitioners were the appointees of the
year 2012-13 and the petition was filed in the year
2018, therefore there is delay. It was highlighted
that the appointment of the petitioners were
contractual and in the nature of interim
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arrangement pending the regular selection by the
GPSC. It was contended that when the categories of
the Assistant Professors were made on the basis of
the qualification and experience, the principle of
'equal pay for equal work' would not apply. It was
submitted that since the petitioners were appointed
contractually, the revision of pay would not be
available to them. The Gujarat Public Service
Commission (Exemption from Consultation)
Regulations were relied on to contend that in view
of the said regulations the interim arrangement in
the nature of contractual appointment were to be
made.
3.4 Learned single Judge referred to certain
judgments of the Supreme Court to take a view that
continuance of employment on temporary, casual and
on ad-hoc basis amounts to be an act of
arbitrariness violative of Articles 14 and 16 of
the Constitution.
4. Learned Additional Advocate General called in
question the sustainability in law of the impugned
judgment and order of learned Single Judge. She
also assailed the directions issued in the order
requiring the respondent authorities to grant pay-
scale and other benefits to the petitioners-
contractual lecturers putting them at par with the
adhoc and regular professors as also the directions
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to pay them the revised pay-scale.
4.1 Learned Additional Advocate General pressed
into service the decision of this Court, which was
by learned Single Judge, in Acharya Madhavi Bhavin
Vs. State of Gujarat, which was Special Civil
Application No.8152 of 2015 and other allied
petitions decided on 07.09.2016 and confirmed in
the Letters Patent Appeal No. 1184 of 2017 as per
judgment dated 24.01.2018. It was submitted that
in Acharya Madhavi Bhavin (supra), this Court
examined the case of adhoc lecturers as well as
contractual lecturers.
4.1.1 Yet another decision in State of
Gujarat vs. Gohel Vishal Chhaganbhai, which was
Letters Patent Appeal No. 1559 of 2019 and allied
appeals, decided on 14.02.2023 was pressed into
service. The said Letters Patent Appeal also arise
from the decision in Acharya Madhavi Bhavin
(supra). The relief was granted in the said cases,
submitted learned Additional Advocate General, to
certain extent, to the contractual lecturers. It
was submitted that beyond the relief granted by the
Division Bench in Acharya Madhavi Bhavin (supra)
and Gohel Vishal Chhaganbhai (supra), further and
additional relief could not have been granted by
learned Single Judge for the present petitioners
who belong to the same category. It was submitted
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that learned Single Judge has committed an error in
granting relief equating the contractual lecturers
with adhoc and regular lecturers, giving them the
equal treatment and giving beyond the directions by
the Division Bench.
4.1.2 In support of the submission that
what was directed by Division Bench in Acharya
Madhavi Bhavin (supra) and Gohel Vishal
Chhaganbhai (supra) was binding to learned Single
Judge, learned Additional Advocate General relied
on decision of the Supreme Court in Tribhuvandas
Purshottamdas Thakur Vs. Ratilal Motilal Patel [AIR
1968 SC 372], to submit that the system of
administration of justice aims at certainty of law
and that the decision of the Division Bench was
binding to learned Single Judge. It was sought to
be highlighted that class of contractual lecturers
and the category of adhoc lecturers or regular
lecturers, on the other hand, were not
homogeneous.
4.2 On the other hand, learned advocate for the
respondent - original petitioners harped for
application of principle 'equal pay for equal work'
by relying on more than one decisions of the
Supreme Court. The decision in the State of Punjab
Vs. Jagjit Singh [(2017) 1 SCC 148] was relied on
to highlight the principles laid down therein to
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further submit that the duties and responsibilities
of contractual Lecturers were same as that of ad-
hoc regular Lecturers. Another decision in Uttar
Pradesh Land Development Corporation Vs. Mohd.
Kursheed Anwar [(2010) 7 SCC 739] was also relied
on to submit that the factors were indicated in the
said decision for applying the regular pay scale
even to the persons employed on contractual basis
and that even though such persons may not be
entitled to regular pay scales, they would be
considered for minimum of the pay scale. The post
in that case was that of Assistant Engineer.
4.2.1 Yet another decision in Har Gur
Pratapsingh Vs. State of Punjab [(2007) 13 SCC 292]
was pressed into service. On the basis of
Bhagwandas Vs. State of Haryana [(1987) 4 SCC 634],
it was submitted by learned advocate for the
respondent that the nomenclature of the post would
not matter if even otherwise the employee are
entitled to receive the same treatment with the
equivalent class of employees.
4.2.2 Learned advocate for the respondent
next submitted that all the petitioners though were
contractual based were continued for long six
years, it was submitted that the length of service
may be the factor to be counted for granting them
the benefit along with the lines of regular
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Lecturers.
5. Now the orders of appointment of the
petitioners are on record which manifests that the
appointment to the petitioners were given on
contractual basis for a period of 11 months or
until the post were filled up by the GPSC through
regular selection, whichever is earlier. The
appointees were provided to be paid monthly fixed
pay of Rs.30,000/-. The other conditions as
mentioned in the appointment letter included that
the either party may give a month's notice or pay
one month's fixed salary to put an end to the
services. Except the fixed pay the appointees were
not to be entitled to any other allowances or
increment and even medical reimbursement. It was
provided that the period of contractual employment
would not be counted for grant of benefits such as
pension, bonus, travel concession. In other words,
the appointment was purely temporary to last for
eleven months or until availability of the regular
GPSC selectees.
5.1 It could not be disputed that similar class of
contractual Lecturers were aggrieved and sought
relief in Acharya Madhavi Bhavin (supra) and Gohel
Vishal Chhaganbhai (supra).
5.2 Proceeding to consider the play and
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applicability of the decision of the Division Bench
of this Court in Acharya Madhavi (supra) and Gohel
Vishal (supra) while holding that the adhoc
lecturers appointed after May 2008 shall be treated
at par with those appointed prior to May 2008
relating to the contractual appointees-lecturers,
learned Single Judge held that the contractual
lecturers should be paid the minimum of the pay-
scale of the lecturer with other allowances. The
group of petitions in Acharya Madhavi Bhavin
(supra) comprised of two set of petitioners, one
adhoc lecturers and other contractual/adhoc
lecturers, who preferred appeals, which were
Letters Patent Appeal No. 1184 of 2017 and allied
appeals, in which the order of learned Single Judge
was confirmed, but it was held that the benefits
directed shall be payable from three years
preceding the filing of the petition, that is, from
2012 onward. Those petitioners, in the group of
Acharya Madhavi Bhavin (supra) who were
contractual, also preferred appeal.
5.2.1 The directions regarding the
contractual lecturers were taken in appeal by the
State Government, which ended up with the decision
in Gohel Vishal Chhaganbhai (supra). The judgment
and order passed by learned Single Judge was
confirmed, however, 8% interest was awarded. In
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other words, when Acharya Madhavi Bhavin (supra)
culminated into decisions in the Letters Patent
Appeals as above, the direction about payment of
benefit and the extent thereof to the contractual
lecturers were not interfered with. The payment of
minimum pay-scale directed by learned Single Judge
was confirmed. The present petitioners-appellants
are the contractual employees forming the same
class of contractual lecturers who litigated in
Acharya Madhavi Bhavin (supra).
5.2.2 It is noticeble that in the impugned
judgment and order, learned Single Judge has
extensively referred to the decision of the
Division Bench in Gohel Vishal Chhaganbhai (supra).
However, while granting the relief, the benefits of
regularization including the payment of pay-scale
made available to the regularly GPSC selected
lecturers including the revised pay-scale came to
be accorded to the contractual appointees also.
5.2.3 What learned Single Judge really did was
to grant relief to the petitioners stepping beyond
the directions and the relief granted by the
Division Bench in Acharya Madhavi Bhavin (supra)
and in Gohel Vishal Chhaganbhai (supra). The law
precedent is well settled that decision of coequal
bench is binding in a subsequent case and the
course, which could be adopted to depart therefrom
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is to refer the issue to the larger bench. As far
as question of binding nature of the decision of
the Division Bench to the Bench of Single Judge or,
in other words, binding nature of the judgment of
the Bench of the larger strength is concerned, the
Bench of the Single Judge or Bench of lesser
strength has to follow the same. It is not open to
the Bench of the lesser strength to cross the ratio
descidendi or travel beyond what he held and
observed by the Bench of the larger strength.
5.3 In Tribhuvandas Purshottamdas Thakur Vs.
Ratilal Motilal Patel [AIR 1968 SC 372], similar
issue was attracted for consideration. Learned
Single Judge viewed the decision of the Full Bench
in Pinjare Karimbhai Vs. Shukla Hariprasad [3 Guj.
L.R. 529]. Learned Single Judge had taken a view
that such judgment would "not be a judgment at all"
and "has no existence in law". It was considered by
the Supreme Court whether a judgment of the Full
Bench of the Court may be ignored by the Single
Judge, if the Full Bench judgment is given on a
reference made on a question of law arising in a
matter before learned Single Judge or Division
Bench.
5.3.1 The Apex Court proceeded to disccuss,
"The effect of a precedent of the Gujarat
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High Court fell to be considered indirectly
in this case. Before Raju, J., it was urged
-for the first time in the course of this
litigation that in the absence .of the
sanction of the Charity Commissioner the
Court sale was invalid. Counsel for the
auction purchaser contended that this
question was not raised before the District
Court and that Court ,cannot be said to have
acted illegally or with material
irregularity in not deciding the question.
Counsel for the auction purchaser relied
upon two decisions in support of that
proposition: Pinjare Karimbhai v. Shukla
Hariprasad and Haridas v. Rataney. He urged
that under the Bombay Reorganization Act,
1960, the jurisdiction of the Bombay High
Court which originally extended over the
territory now forming part of the State of
Gujarat, ceased when a new High Court was
set up in the State of Gujarat, but it was
held by a Full Bench of the High Court of
Gujarat in State of Gujarat v. Gordhandas(1)
that the decision of the Bombay High Court
will be regarded as binding since the
Gujarat High Court had inherited the
jurisdiction. power and authority in respect
of the territory of Gujarat. When pressed
with the observations made in the two cases
cited at the Bar, Raju. J.. found an easy
way out. He observed that the judgment of
the Full Bench of the Gujarat High Court had
"no existence in law". for in the absence of
a provision in' the Constitution and the
Character Act of 1861, a Judge of a High
Court had no Power to refer a case to a Full
Bench for determination of a question of law
arising before him. and a decision given on
a reference "had no existence in law".
(para 10)
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5.3.2 The court proceeded to observe,
The learned Judge also though that if a
Judge or a Division Bench of a Court makes a
reference on a question of law to a Full
Bench for decision. it Would in effect be
assuming the jurisdiction which is vested by
the Charter of the Court in the Chief
justice of the High Court. In so observing
the learned Judge completely misconceived
the nature of a reference made by a Judge or
a Bench of Judges to a larger Bench. when it
appears to a Single Judge or a Division
Bench that there are conflicting decisions
of the same Court. or there are decisions of
other High Courts in India which are
strongly persuasive and take a view
different from the view which prevails in
his or their High Court.. or that a question
of law of importance arises in the trial of
a case, the Judge or the Bench passes an
order that the papers be placed before the
Chief Justice of the High Court with a
request to form a special or Full Bench to
hear and dispose of the case or the
questions raised in the case."
(para 10)
5.3.3 It was held that if the learned Single
Judge of the High Court was of the view that Full
Bench decision in Pinjare Karimbhai (supra) did not
lay down the correct law, it was open to him to
recommend the Chief Justice that the question be
considered by Larger Bench. It was observed that
"Judicial decorum, propriety and discipline
required that lie should not ignore it". It was
succinctly observed "Our system of administration
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of justice aims at certainty in the law and that
can be achieved only if, Judges do not ignore
decisions by Courts of coordinate authority or of
superior authority".
5.4 In Lala Shri Bhagwan v. Shri Ram Chand,
[(1965) 3 S.C.R. 218], the Supreme Court observed,
"It is hardly necessary to emphasise that
consideration of judicial propriety and
decorum require that if a learned single
Judge hearing a matter is inclined to take
the view that the earlier decisions of the
High Court, whether of a Division Bench or
of a single Judge, need ,to be re-
considered, he should not embark upon that
enquiry sitting as a single Judge, but
should refer the matter 'to a Division
Bench. or, in a proper case, place the
relevant papers before the Chief Justice
to enable him to -constitute a larger
Bench to examine the question. That is the
proper and traditional way to deal with
such matters and it is founded on healthy
principles of judicial decorum and
propriety."
5.5 The observations in Jaisri Sahu v. Rajdewan
Dubey, [(1962) 2 S.C.R. 558], are also beckoning.
It was observed that if decisions of the same or
superior court are ignored, even though directly
applicable by judge in deciding a case arising
before him, on the view that every judge is
entitled to take such view as he chooses, to the
question of law arising before him then, "law will
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be bereft of all its utility if it should be thrown
into a state of uncertainty by reason of
conflicting decisions". From Mansukh vs. State of
Gujarat [(2021) SCC Online Guj 1002], the
proposition emanated that where a decision is not
in conformity with the previous decision, it cannot
be sustained. It is true with an added emphasis
when the previous decision is by the bench of
larger strength and the same issue is to be dealt
with by the Bench of lesser strength.
5.6 The proposition of law of precedent and
binding nature thereof was highlighted by the
Supreme Court in Union of India vs. Raghubir Singh
[(1989) 2 SCC 754],
"What then should be the position in regard
to the effect of the law pronounced by a
Division Bench in relation to a case raising
the same point subsequently before a
Division Bench of a smaller number of
Judges? There is no constitutional or
statutory prescription in the matter, and
the point is governed entirely by the
practice in India of the courts sanctified
by repeated affirmation over a century of
time. It cannot be doubted that in order to
promote consistency and certainty in the law
laid down by a superior Court, the ideal
condition would be that the entire Court
should sit in all cases to decide questions
of law, and for that reason the Supreme
Court of the United States does so. But
having regard to the volume of work
demanding the attention of the Court, it has
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been found necessary in India as a general
rule of practice and convenience that the
Court should sit in Divisions, each Division
being constituted of Judges whose number may
be determined by the exigencies of judicial
need, by the nature of the case including
any statutory mandate relative thereto, and
by such other considerations which the Chief
Justice, in whom such authority devolves by
convention, may find most appropriate. It is
in order to guard against the possibility of
inconsistent decisions on points of law by
different Division Benches that the Rule has
been evolved, in order to promote
consistency and certainty in the development
of the law and its contemporary status, that
the statement of the law by a Division Bench
is considered binding on a Division Bench of
the same or lesser number of Judges. This
principle has been followed in India by
several generations of Judges."
(para 27)
5.7 In RSPL Limited v. Mukesh Sharma & Anr., [2016
SCC OnLine Del 4285], the Delhi High Court, after
considering the decision on the point, observed in
paragraph 30 as under,
"Judicial discipline and propriety requires
that a Single Bench should follow the
decision of a Division Bench without demur
as the Single Bench is bound by it. It is
all the more so when the Division Bench
decision is of an appellate court and the
Single Bench happens to be the trial court.
It is a matter of judicial propriety that
the hierarchical system is followed. A
decision of an appellate court may in the
view of the trial court be right or wrong,
but the trial court has no option but to
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follow it. In fact, a Single Judge cannot
even refer a matter for decision by a Bench
comprising of more than two judges.
Furthermore, the Single Judge can only refer
a matter to be placed before a Division
Bench of two judges if the Single Judge
finds that there is a conflict of decisions
of Single Benches. If there are conflicting
decisions of Division Benches of co-equal
strength, it is, of course, open to the
Single Judge to follow the later decision.
But, in such a situation, the learned Single
Judge cannot seek a reference to a Full
Bench of three or more Judges."
5.8 In the present case, learned Single Judge had
before it, the judgments of the Division Bench
dealing with the same relief claimed before him by
same class of government servants, namely, the
contractual lecturers. The relief that they had
claimed before learned Single Judge was the very
relief considered by the Division Bench, but either
not granted or granted to the limited extent. The
relief of granting pay-scales, increments and other
benefits made available to the adhoc or regular
lecturers, treating the contractual at par was a
relief standing in direct conflict with and beyond
the relief granted by the Division Bench. Such
relief could not have been granted, on the face of
it, by learned Single Judge.
5.9 The breach of discipline of judicial
precedents works as interception in smooth flowing
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of law and already settled legal propositions to be
applied to govern the rights of the parties. In
granting relief to the contractual lecturers,
learned Single Judge ignored the very structure of
stare decisis required to be preserved, followed
and adhered to.
6. Even examined on the footing of independent
principles, it is held in State of Rajasthan vs.
Daya Lal [(2011) 2 SCC 429], that the part-time
employees cannot be equated for the purpose of
their claim of salary, etc., with regular
employees. The principle applies when the
contractual lecturers seek themselves to be at same
level or adhoc lecturers seeking similar benefits.
In State of Rajasthan (supra), while discussing the
principles regarding entitlement to regularization
and parity in pay, it was held,
"We may at the outset refer to the following
well settled principles relating to
regularization and parity in pay, relevant
in the context of these appeals:
(v) Part time temporary employees in
government run institutions cannot claim
parity in salary with regular employees of
the government on the principle of equal pay
for equal work. Nor can employees in private
employment, even if serving full time, seek
parity in salary with government employees.
The right to claim a particular salary
against the State must arise under a
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contract or under a statute."
[para 12(v)]
6.1 For applying the principle for 'equal pay for
equal work', strict principles apply. In Union of
India, through Secretary, Department Of Personnel,
Public Grievances & Pension & Anr. [(2015) 3 SCC
653], the Supreme Court highlighted that
classification of posts and determination of pay
structure exclusively falls within the domain of
Executive. The Courts and Tribunal, it was stated,
cannot sit in appeal over the wisdom of the
Executive in prescribing certain pay structure and
grade in particular service. The doctrine of equal
pay for equal work was viewed not to be an abstract
doctrine to be capable of being enforced in Court
of law. In the State of Punjab and Others Vs.
Charanjit Singh [(2006) 9 SCC 321], the Supreme
Court observed that the principle of equal pay for
equal work has no mechanical application. If the
educational qualification are different, then also
the doctrine may have no application. It was stated
that even though the persons may be in the same
work, their quality of work may differ. It was
reiterated that classification based on different
in educational qualifications justify difference in
pay-scales.
6.2 In State of Madhya Pradesh Vs. Rameshchandra
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Bajpayee [(2009) 13 SCC 635], the respondent who
was physical training instructor in Government
Ayurvedic College had been claiming the UGC pay
scale. The court held that it was well settled that
the doctrine for 'equal pay for equal work' could
only be invoked when the employees were similarly
circumstanced in every way. Mere similarity of
designation or similarity in quantum of work was
not determinative of equality in the matter of pay
scales, the court has to consider the host of the
relevant factors. After extensive survey of the
decisions on the applicability of 'equal pay for
equal work' the criteria for classification
becoming reasonable for the purpose of extending
the equal pay, the Supreme Court in State of Punjab
Vs. Jagjit Singh [(2017)1 SCC 148], summarized the
principles on this score.
6.3 There is no gainsaying that there is a
differences in the manner of appointment as well as
the salary and perks paid to the contractual
Lecturers on one hand and ad-hoc Lecturers on the
other. The contractual Lecturers are selected merit
based and degree marks are counted. For the purpose
of recruitment of ad-hoc Lecturers, selection
procedure followed which includes written
examination, interview leading to merit selection.
The pay scale of the contractual employees is a
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fixed amount with no other additional service
benefits given. Ad-hoc Lecturers are given pay
scales with other allowances like increment and
earned leaves as also house-rent allowance and
dearness allowance. It is well settled that even
the slightest difference may have material bearing
in justifying the different pay and pay scales to
the employees, so as not to justify the invocation
of doctrine of 'equal pay for equal work'.
6.4 The equation of post and determination of pay
scales is the function primarily of the Executive,
the courts will not ordinarily enter into the task
to evaluate job profile of two categories of
employees and would not go into the aspect of
determination of pay scales to them. The
differences in the pay scale would become
justifiable for host of the factors, of which even
one could be applied to distinguish and to make the
class heterogeneous. The considerations may be the
manner and process of recruitment, conditions
attached to the appointment, the educational
qualification required for the two posts, the
nature of duties and like. Mere similarity of
nomenclature of the post may not draw the principle
of 'equal pay for equal work'.
6.5 For all the forgoing reasons and discussion,
the judgment and order of learned single Judge
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could hardly sustain. It is liable to be set aside.
Accordingly, the judgment and order dated 5.7.2023
read with Speaking-to-Minutes dated 19.7.2023 of
learned single Judge is set aside.
7. The Letters Patent Appeal is allowed.
Civil Application will not survive in view of
the disposal of the Letters Patent Appeal.
(N.V.ANJARIA, J)
(CHEEKATI MANAVENDRANATH ROY, J)
MANSI AMIN / BIJOY PILLAI
