Gujarat High Court
State Of Gujarat vs Gohel Vishal Chhaganbhai on 14 February, 2023
Bench: Nisha M. Thakore
C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1159 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 8154 of 2015
With
R/LETTERS PATENT APPEAL NO. 1305 of 2015
In
SPECIAL CIVIL APPLICATION NO. 6111 of 2014
With
R/LETTERS PATENT APPEAL NO. 1183 of 2017
In
SPECIAL CIVIL APPLICATION NO. 8154 of 2015
With
R/LETTERS PATENT APPEAL NO. 1355 of 2017
In
SPECIAL CIVIL APPLICATION NO. 3582 of 2016
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1355 of 2017
In
SPECIAL CIVIL APPLICATION NO. 3582 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE (DESIGNATE) MS. JUSTICE SONIA
GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
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 ?
==========================================================
STATE OF GUJARAT & 1 other(s)
Versus
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GOHEL VISHAL CHHAGANBHAI & 44 other(s)
==========================================================
Appearance:
MS SHRUTI PATHAK ADDL. GOVERNMENT PLEADER for the Appellant(s)
No. 1,2
MR KB PUJARA(680) for the Respondent(s) No.
1,10,11,12,13,15,16,17,18,19,2,20,22,23,24,25,26,28,29,3,31,34,37,39,4,41,4
2,43,45,5,6,7,8,9
MR NIKUL K SONI(5122) for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,5,6,7,8,9
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE (DESIGNATE) MS.
JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 14/02/2023
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. By way of this group of Letters Patent Appeals, original
respondents State challenged the CAV Common Judgment dated
07.09.2016 passed by the learned Single Judge (Coram: J.B.
Pardiwala, J.) in writ petition being Special Civil Application
No.8152 of 2015 and allied matters.
2. Brief facts as emerged from the record are summarized as
under:
2.1 The original writ applicants were employed by respondent
State on the post of Lecturers on ad hoc and/or contractual basis
in the Government Engineering Colleges and Government
Dilpoma Engineering Polytechnics. The aforesaid institutions are
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governed by All India Council for Technical Education Act, 1987
(hereinafter referred to as "AICTE Act"). Pursuant to the
instructions received by the AICTE, the posts of Lecturer in Degree
Engineering Colleges has been redesignated as Assistant
Professor.
2.2 Since there has been some delay in undertaking the
recruitment for the post of Assistant Professor, the State at the
relevant point of time decided to fill up by ad hoc appointment
against vacant sanctioned posts of Lecturers in the Government
Degree Engineering Colleges and Government Diploma
Engineering Polytechnics. Such appointments have continued for
a period of almost 20 years. It is the case of the writ applicants that
the ad hoc Lecturers appointed prior to May, 2008, were given
regular pay-scales and all the regular benefits of annual
increments, vacation, leave, LTC etc. Their earlier pay-scale
Rs.2200-4000, was revised to Rs.8000-275-13500, grade pay of
Rs.6000/5400 w.e.f. 01.01.2006. The writ applicants are appointed
on ad hoc basis between May, 2008 and February, 2009. It is their
case that the writ applicants are only paid basic pay of Rs.8000/- in
the pay-scale of Rs.8000-275-13500 and are not being paid other
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benefits like annual increment, vacations, leave, LTC etc. Thus, it
was alleged that the State Government had created classes within
the class of ad hoc Lecturers and the writ applicants are
discriminated against in spite of doing the same work as done by
the ad hoc lecturers and qualified for the posts, the writ applicants
were constrained to approach this Court.
2.3 In the case of some of the writ applicants, the State proceeded
to issue termination order which led them to file writ application
being Special Civil Application No.5797 of 2009, which ultimately
came to be decided by the Division Bench in Letters Patel Appeal
No.2986 of 2010 by order dated 24.03.2011. While disposing of
the aforesaid Letters Patent Appeal, the Division Bench of this
Court considering the fact that ad hoc Lecturers were continue
since last 10 to 20 years, protected their service by interim order
whereby State was directed to fill up all the posts by publishing
advertisement by regular appointment and till such posts are filled
up by regular appointment, the ad hoc Lecturers were continued to
be in service. The Division Bench further held that in case, if the
posts are filled up through regular appointment, then the Ad hoc
lecturers may be accommodated against some other vacant posts,
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for which no advertisement is issued. In the case of ad hoc
Lecturers whose service were terminated, the Division Bench
directed to accommodate them on ad hoc basis against the posts
which are not being filled up or advertised. If in case, no posts
were vacant to accommodate them, then their service was directed
to be terminated. While issuing such direction, Division Bench
further clarified that said ad hoc Lecturers shall have no right to
continue against any particular post and leave it to make room as
and when posts are filled up on regular basis. In view of the
directions, the writ applicants and similarly situated ad hoc
Lecturers were continued in service on the basis of order which
was passed by the Director of Technical Education.
2.4 At the stage of filing the writ petition, the writ applicant on the
basis of information derived under the Right to Information Act,
submitted before the Court that in all there are a total 2720
sanctioned posts in the Government Colleges as on 01.09.2014.
Out of which, 923 posts were filled up through regular
appointment, 158 posts were filled up by ad hoc appointees and
third category of Lecturers were appointed on fixed pay basis on
902 posts. Thus, against the sanctioned post of 2720, 1983 posts
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were filled up as on 01.09.2014 leading 737 posts being left
vacant. It is the case of the writ applicants that 525 new vacancies
of Assistant Professor have been sanctioned for 16 Government
Engineering Colleges and 347 vacancies of Lecturers have been
sanctioned for 26 Government Polytechnics as per Circular dated
12.12.2013. The writ applicants therefore, contended that large
numbers of vacancies of Lecturers have remained unfilled in the
past more than 20 years. Since the writ applicants were
apprehending termination and were at age of retirement as an ad
hoc employee without any retiral benefits, approached this Court
by filing aforesaid writ petitions.
2.5 The writ applicants being Ad hoc Lecturers in Government
Degree Engineering and Government Diploma Engineering
Colleges have approached this Court under Article 226 of the
Constitution of India and had prayed for following reliefs:
"16(a) to direct the respondents, their agents and servants
to treat the petitioners, who are appointed as ad-hoc
Lecturers in the Government Degree Engineering
Colleges and Government Diploma Engineering
Polytechnics after May-2008, at par with the ad-hoc
Lecturers appointed in the said colleges and polytechnics
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before May-2008, and to grant them the Pay and Pay-
scales and Annual increments and all other benefits at
part with them, with effect from the dates of their initial
appointments and to direct the respondents to give all the
consequential benefits to the petitioners, including the
monetary benefits and arrears together with interest at the
rate of eighteen percent per annum;
(b) to direct the respondents to regularise the petitioners'
services and to confer the benefit of permanency on them
on the posts of Lecturers held by them in the Government
Degree Engineering Colleges and Government Diploma
Engineering Polytechnics, and to give all the
consequential benefits with effect from the date of filing of
this petition;
(c) to direct the respondents to forthwith frame and
implement the scheme to relax the age and to select the
qualified and experienced ad hoc Lecturers through a
limited competitive examination, as suggested / directed
by the Hon'ble Division Court in its order dtd. 24.3.2011
passed in LPA No.2986/2010 (Coram : S.J.
Mukhopadhaya, CJ and J.B. Pardiwala, J);
(d) to direct the respondents, their agents and servants
not to terminate the services of the petitioners and not to
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alter their service conditions in any manner adverse to
them until all the sanctioned vacancies of Lecturers in the
Government Degree Engineering Colleges and
Government Diploma Engineering Polytechnics are duly
and fully filled up by the candidates selected and
recommended by GPSC in accordance with the norms of
Pupil-Teacher Ratio laid down by AICTE;
(e) to quash and set aside the term and condition no.2 of
the G.R. dtd. 10.8.2010 and G.R. dated 02.08.2011
whereby the benefits of revision of the pay-scales as per
the said G.R.s are denied to the teachers appointed on
fixed pay and contractual posts, and be further pleased to
direct the respondents to grant the said benefits to the
petitioners w.e.f. 01.01.2006 / w.e.f. From the date of the
petitioners initial appointment as has been granted to all
other Lecturers of Government Degree Engineering
Colleges and Diploma Engineering Polytechnics.
(f) to direct the respondents to give uniform treatment to
all the adhoc lecturers at par with the adhoc lecturers
appointed prior to May-2008 in the matter of issuance of
monthly salary-slips, religious holidays, quarters,
vacations, leaves, permission of higher studies of M.E.
and other courses and in all other matters;
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(g) to direct the respondents, their agents and servants to
give all the benefits as per the circulars dated 15.10.1992
and 20.07.1999 as are being granted to the adhoc
lecturers appointed prior to May-2008.
(h) Pending the hearing and final disposal of this petition,
be pleased to restrain the respondents from terminating /
discharging the petitioners and/or from altering their
service conditions in any manner adverse to them, until all
the sanctioned vacancies of Lecturers in the Government
Degree Engineering Colleges and Government Diploma
Engineering Polytechnics are duly and fully filled up by the
candidates selected and recommended by GPSC in
accordance with the norms of Pupil-teacher Ratio laid
down by AICTE;
(I) Pending the hearing and final disposal of this petition,
be pleased to direct the respondents to start paying the
salaries in the pay band of Rs.15600-39100, Grade Pay
Rs.6000/- 5400/- to the petitioners as is being paid to the
adhoc lecturers appointed prior to May 2008, subject to
further orders that may be passed in the present petition;
(j) pending the hearing and final disposal of this petition,
be pleased to direct the respondents, their agents and
servants to give all the benefits as per the circulars dated
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15.10.1992 and 20.07.1999 as are being granted to the
adhoc lecturers appointed prior to May-2008, subject to
further orders that may be passed in the present petition;
(k) to grant any other appropriate and just relief/s."
2.6 At the outset, it was submitted that there were three sets of Ad
hoc Lecturers rendering service in different Degree Engineering
Colleges and Diploma Engineering Colleges. In this set of ad hoc
appointees, there are three sets of ad hoc appointees : (i) prior to
March, 2008 (ii) second set includes in ad hoc Lecturers appointed
after May, 2008 and (iii) third set of Professor / Lecturers are
appointed between November, 2009 to March, 2010. It was
contended by the State before the learned Single Judge that there
were a total 16 Degree Engineering Colleges and Diploma
Engineering Colleges in the State of Gujarat. The sanctioned
strength for the post of Lecturer is concerned was 1724. Out of
which, 632 posts have been filled up by G.P.S.C. nd 92 posts were
adhoc appointees and 273 were contractual appointees. Thus, it
was contended before the Learned Single Judge at the stage of
final hearing that there existed 727 vacant sanctioned posts.
Similar appointments were made in polytechnic colleges,
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where total sanctioned posts of Lecturer were 2818 posts and out
of which , 1117 posts have been filled up through the G.P.S.C.,
137 were adhoc appointees and 707 posts were contractual
appointees. Thus, it was contended that 857 sanctioned posts
were vacant.
2.7 The learned Single Judge, considering the submissions made
by the learned advocates appearing for the respective parties and
averments made in the writ petitions, proceeded to consider mainly
three issues. First on the aspect as to whether the State
Government was justified in creating class within the class without
any rational basis by giving discriminatory treatment as regards
regular pay-scale, pay band, grade pay and all other benefits,
which were otherwise extended to one set of ad hoc Lecturers
appointed prior to May, 2008 as against another set of Lecturers
i.e. the writ applicants, who were appointed after May, 2008.
Secondly, the learned Single Judge took into consideration the
suggestions / directions issued by the Division Bench of this Court
by order dated 24.03.2011 passed in Letters Patent Appeal
No.2986 of 2010 as regards the fact that the State Government
was under obligation to frame the scheme to relax the age and to
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select the qualified and experienced ad hoc lecturers through a
limited competitive examination. Lastly, the learned Single Judge
proceeded to examine as to whether the writ applicants were
entitled to be regularized on the post held by them. While
examining the aforesaid question, the learned Single Judge
following settled position on the concept of equality before the law
and doctrine of "equal pay for equal work" took pragmatic
approach noticing the fact that the Government extracted work
from the writ applicants for years together after having found them
eligible and suitable in a selection process conducted by the
Selection Committee, which was constituted pursuant to the
Government Resolution. The learned Single Judge took notice of
the fact that the Division Bench of this Court while disposing of the
Letters Patent Appeal No.2986 of 2010 by order dated 24.03.2011,
had suggested the State Government to frame in scheme to relax
the age and to select the qualified and experienced ad hoc
Lecturers through any limited ad hoc competitive examination,
which the State Government has thought it fit not to implement. In
such circumstances, the learned Single Judge noticing the
decision of the Bombay High Court, which came to be affirmed by
the Hon'ble Supreme Court as regards regularization in service is
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concerned, refusing to issue any mandamus in that regard. At the
same time, the learned Single Judge considering the fact that the
ad hoc Lecturers appointed after May, 2008 should have been
treated at par with the ad hoc Lecturers held that the ad hoc
Lecturers appointed after May 2008 shall be paid the salary and
other allowances at par with the same received by the ad hoc
Lecturers appointed prior to May 2008. At the same time, in the
case of contractual Lecturers, the Court directed to make payment
of minimum pay-scale of as post of regular appointees Lecturers is
concerned with all other allowances attached to the same with
effect from January 2015. The learned Single Judge further
directed the State Government to give serious thought to the
suggestions made by this Court as reflected in the order dated
24.03.2011 passed in Letters Patent Appeal No.2986 of 2010.
Considering the fact that most of the writ applicants have crossed
almost 35 years of service, being at the verge of retirement, would
be left without any retirement benefits. In such circumstances, the
State was called upon to submit the report regarding the same.
Hence, three appeals viz. Letters Patent Appeal No. 1159
/2017 in Special Civil Application No. 8154/2015, Letters Patent
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Appeal No. 1305/2015 in Special Civil Application No. 6111/2015,
Letters Patent Appeal No. 1355/2017 in Special Civil Application
No. 3582/2016 are filed by the State challenging the common
judgment against the State and Letters Patent Appeal No.
1183/2017 in Special Civil Application No. 8154/2015 filed by the
writ applicant challenging the refusal to grant regularization.
3. This Court by order dated 16.01.2018 has admitted this group of
appeals filed by the State. Pending these appeals, the stay was
granted against further operation and implementation of the
judgment passed by the learned Single Judge. Learned AGP had
invited attention of this Court to the order passed by the Hon'ble
Apex Court in group of the petitions relating to the ad hoc
Lecturers, who have been engaged prior to 28.05.2008 and after
28.05.2008. The Special Leave Petition No. 39726 of 2018 was
filed by the State challenging the final judgment and order dated
24.01.2018 passed by the Coordinate Bench in a group of appeals
being Letters Patent Appeal No.1184 of 2017 and allied matters.
The Hon'ble Apex Court in Special leave petitions filed by the
State being Special Leave Petition ( CIVIL) Diary No. 39726/2018,
by order dated 14.12.2018 finding no good ground to interfere, had
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dismissed the aforesaid Special Leave Petition and had thereby
confirmed the order passed by the learned Single Judge as
confirmed by the Division Bench. While dismissing the appeal the
Hon'ble Supreme Court observed as under:
"UPON hearing the counsel the Court made the following
ORDER
Delay condoned.
We do not find any good ground to interfere with the
impugned order passed by the High Court.
The Special Leave Petition is, accordingly, dismissed.
Pending applications, if any, stand disposed of."
4. We could notice that identical issues were raised in the
aforesaid cases of ad hoc Professor, Assistant Professor /
Lecturers of the Government Engineering Colleges and
Polytechnics, which were disposed by common judgment by the
learned single judge and the only difference in the present group of
appeals as pointed out by the respondents is that they are
appointed on contractual basis otherwise their status as ad hoc
employees would be governed by the decision of the Hon'ble Apex
Court which has confirmed the order of the Division Bench of this
Court in the case of Acharya Madhavi Bhavin & Ors. Vs. State
of Gujarat & Ors. delivered in Letters Patent Appeal No. 1184 of
2017 and allied matters. Responding to the aforesaid submissions
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of the respondents, the appellant - State had placed on record
additional affidavit, whereby the State had invited attention of this
Court to the status of the original writ applicants, who appeared in
the examination held by the GPSC during the interregnum period
in the year 2010, 2013 and 2015 for the various branches of
Engineering. It was contended by the State that by way of interim
protection granted by this Court vide order dated 10.10.2019 in
Special Civil Application No.17521 of 2019, the State Government
is precluded from discontinuing their service. Thus, the petitioners
being continued as on contractual basis, and having chosen to
appear in the examination conducted by the GPSC, it was
contended that their status be governed as per the results in
exams conducted by GPSC. It was further submitted that few of
the writ applicants who have failed to clear such examination but
have still continued by virtue of interim protection are required to
be discontinued as candidates other than the writ applicants
having cleared the examination, are awaiting their appointment.
On account of stay granted by this Court, the State Authorities are
compelled to continue with these contractual appointees who are
seeking enhanced benefits. Reliance was placed on the
proposition of law that as against the ad hoc and contractual
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appointees due weightage is to be given to regularly selected
candidates. It was further contended that in the branch of
Mechanical Engineering, 24 GPSC selected candidates are
awaiting appointment and similarly, in the branch of Electrical
Engineering, 36 GPSC are awaiting their appointment.
5. The matter was substantially heard by this Bench and
arguments were concluded on 10.10.2022. Learned advocates
appearing for both sides were directed to tender their written
submissions. The appellants have placed on record written
submission along with order relied upon during the course of
arguments. On the other hand, Mr. K.B. Pujara, learned advocate
for the respondents in Letters Patent Appeal No.1183 of 2017 has
tendered written submission on behalf of the respondents.
SUBMISSIONS:
6. We have heard Ms. Shruti Pathak, learned AGP for the
appellant and learned advocates Mr. K.B. Pujara, Mr. Nikul Soni,
Mr. P.A. Jadeja, Mr. Ekram Qureshi who have appeared for the
respective respondents.
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7. Ms. Pathak, learned AGP for the respondent State has invited
attention of this Court to the impugned judgment and order passed
by the learned Single Judge, whereby directions were issued to
treat the ad hoc Lecturers appointed after May, 2008 to those
appointed prior to May, 2008. At the outset, she has invited
attention of this Court to the operation part of the order and
submitted that the controversy in present appeals is in narrow
compass and it is restricted to the directions issued by the learned
Single Judge to give minimum pay-scale so far as Lecturers
appointed on contractual basis with all allowances attached to the
same is concerned. She submitted that there were broadly 2 sets
of petitioners before the learned Single Judge. First in the case of
ad hoc lecturers appointed after May, 2008 and the contractual
Lecturers. She invited attention of this Court to the judgment and
order as submitted on earlier occasion passed in Letters Patent
Appeal No.1184 of 2017, whereby in similar set of appointees, the
directions were issued by the learned Single Judge holding that
the Lecturers appointed post May, 2008, shall be entitled to the
salary and other benefits at par with those ad hoc Lecturers
appointed prior to May, 2008. She has further submitted that in the
said judgment and order, the direction issued by this Court in
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Letters Patent Appeal No.1184 of 2017 was challenged by the
State Government before the Hon'ble Apex Court by Special
Leave Petition (Diary) No.39726 of 2018. The Hon'ble Apex Court
vide order dated 14.12.2018 dismissed the said Special Leave
Petition preferred by the State. She therefore, submitted that the
issues of ad hoc Lecturers post May, 2008 is concerned, has
attained finality in terms of the order dated 24.01.2018 passed in
Letters Patent Appeal No.1484 of 2017.
8. Ms. Pathak, learned AGP has made an attempt to distinguish
the case of contractual appointees as compared to the ad hoc
Lecturers. She has referred to and relied upon the affidavit in reply
filed by the Deputy Director of Technical education to highlight
G.R. dated 12.09.2008 whereby decision was taken to make
contractual appointment. She has relied upon the service
jurisprudence as regards different categories of the appointment.
She invited attention of this Court to the orders of appointment
issued in the case of the present petitioners and has submitted
that indisputedly, the appointment in the case of present
petitioners was made on contractual basis initially for a period of
11 months, which was renewed from time to time. The terms and
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conditions attached to their service is reflected in their appointment
order. She therefore, submitted that no vested legal right is created
in favour of the petitioners and the same cannot confer and bestow
any legitimate expectations of seeking similar pay to that of regular
appointees. She further submitted that at the stage of appointment
on contractual basis, it was clearly stipulated that they would be
paid fixed pay of Rs.20,000/- per month. She has fairly submitted
that such amount of fixed pay was modified pursuant to the
instructions issued by the State Government from time to time.
She further submitted that having accepted such an appointment
order on such terms and conditions, they are aware about the
nature of their appointment and have worked for these many
years. She also submitted that having accepted the fixed pay, they
may not be permitted to make grievances with regard to the same
on the principle of equal work, equal pay. She further tried to
distinguish the case of the petitioners as against earlier ad hoc
Lecturers post and after May, 2008, by submitting that in legal
parlance, the term "temporary" or "contractual" cannot be
construed to mean permanent i.e. lasting for a definite time, which
is governed by the terms and conditions of the contract. She
therefore submitted that merely possessing qualification of
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permanent post cannot be sole criteria to automatically confirm the
status of being permanent or equal pay. She submitted that there
is huge difference as far as Lecturers appointed ad hoc basis and
contractual basis are concerned, she tried to submit that the
contractual or temporary appointment cannot be used in
correlation to ad hoc appointments as the nature of appointments
is distinct and different. She further submitted that source of
selection in case of contractual appointees is different as
compared to ad hoc appointees. She submitted that in the case of
petitioners, the Selection Committee appointed pursuant to the
Resolution had undertaken a process whereby the petitioners were
selected on merits based on marks obtained in degree certificate.
She further submitted that so far as ad hoc Lecturers are
concerned, different procedures with regard to the selection were
followed, which includes holding of written examination, followed
by interview and putting them in merit list. She further submitted
that in case of contractual appointees, the term period of 11
months was prescribed and fixed pay salary was given. While in
the case of ad hoc Lecturers, apart from the pay-scale, other
allowances like increment, vacation, earned leave, allowances,
HRA, TA, DA etc. were extended. Based on such factors, learned
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AGP has submitted that merely assertions of "equal pay for equal
work" is not sufficient. She further submitted that the petitioners
were continued in service pursuant to the orders passed by this
Court. In such circumstances as held by the Hon'ble Apex Court,
the petitioners may be deed to be litigious employment and merely
because an employee had continued to work under the cover of
orders of the Court, the same may not entitle any right with respect
to absorption, permanency pay scale etc. She referred to and
relied upon additional affidavit placed on record by the appellant
and submitted that the respondents, who have appeared and
cleared the examination during the interregnum period have been
absorbed as regular employee, however, left out respondents have
not chosen not to appear or clear the examination held by the
GPSC during the interregnum period. She invited the attention of
this Court to the details of the advertisement issued by the GPSC
examination in the case of different branches of Engineering. She
further invited attention of this Court to the fact that in the year
2008, the State Government through Education Department had
issued Government Resolution No. 20.05.2008 whereby the policy
decision was taken by the State for appointing Lecturer on ad hoc
basis pending recommendation issued from GPSC. As per the
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Resolution, the appointment to the post of Lecturers was to be
made in the pay-scale of Rs.800-275-13000. She had referred to
the aforesaid Resolution and submitted that as per the said
Resolution, appointments were made on ad hoc basis through
Committee under the Chairmanship of the Director of Technical
Education. Therefore, as far as the ad hoc Lecturers are
concerned, their appointments are to be made following the
procedure prescribed under the GR. She further made an earnest
attempt for not extending the service of the respondents
contractual appointees by submitting that during the interregnum
period, thrice examinations were held by GPSC for all the
branches of engineering, whereby new selected candidates who
have cleared examinations are available for regular appointment.
She has placed a copy of the chart whereby it was submitted that
approximately 313 respondents are involved in the present
litigation. Out of which 126 candidates have given their
resignations and joined other departments, 54 candidates have
cleared GPSC examination and got their regular appointment as
Lecturers / Assistant Professor, 86 respondents' service have
been terminated due to coming of regular appointees and now at
present, the issue only relates to only 47 left out respondents.
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9. Ms. Pathak, learned AGP has further submitted that in case of
one set similarly situated contractual Lecturers, the petition was
preferred before this Court being Special Civil Application
No.12355 of 2012, whereby prayer was sought for to extend the
benefit at par available to the Lecturers and to grant pay-scale
admissible for ad hoc Lecturers Class III. The learned Single
Judge after hearing the learned counsels appearing for the
respective parties in the aforesaid petition vide judgment and order
dated 01.10.2012, had dismissed the petition observing that the
petitioners have failed to establish their case to the extent that they
are entitled to all the benefits to the Lecturers. She relied upon the
decision of the Hon'ble Apex Court in the case of Surendra Nath
Pande and Ors. Vs. Uttar Pradesh Cooperative Bank reported
in (2010) 12 SCC 400, more particularly, para 9 is relied by the
learned Single Judge in the aforesaid petition and submitted that
the burden lies upon the petitioners to establish that they were
entitled to such benefits of pay-scale with increments during their
service under same Rule or settled principles of service
jurisprudence. It seems that the said order of learned Single Judge
was confirmed by the Division Bench of this Court in Letters Patent
Appeal No.1363 of 2013. Said appeal is pending at the stage of
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condonation of delay.
10. She has further invited attention of this Court to the affidavit
filed in Letters Patent Appeal No. 1355 of 2017, wherein the
petitioners made grievance for the first time with regard to the
appointment of ad hoc Lecturers by the Director of Technical
Education, who had published advertisement dated 10.12.2008.
The petitioners therein had contended that though the recruitment
was on ad hoc basis, the interviews were held merit-less, was
prepared based on qualifying marks and viva-voce and
subsequently, based on such merit-list, the appointments were
given either on ad hoc or contractual basis. Responding to such
contentions being raised by the petitioners of the aforesaid Letters
Patent Appeal, Ms. Pathak, learned AGP submitted that such
appointments were given on ad hoc basis in consonance with the
G.R. dated 18.07.2008 which stipulated that in case the
candidates recommended by the GPSC are not available then
appointment can be made on ad hoc basis on such vacant posts.
By relying upon affidavit, she submitted that the approval was
sought for additional seats for the year 2008-09 to conduct the
classes in the second shift. She further submitted that in absence
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of any challenge to the GR by the petitioners, no fault can be found
with the State Government, who has otherwise acted in
accordance with instructions issued in the form of Resolution. She
further submitted that in all 156 posts were approved for the year
2008 and according to the requirement because of an increase in
intake of students, a waiting list of ad hoc Lecturers was operated.
She therefore, denied that it may not lead to the presumption that
the State Government has adopted procedure of its convenience.
11. The contentions of Review Petition preferred by some of the
respondents with regard to the prayer of regularization is
concerned, she submitted that till date, no order has been passed
in pending Review Application. She, therefore, submitted that the
present appeals be allowed and the impugned common judgment
passed in writ petitions be dismissed in case of contractual
Lecturers.
12. On the other side, learned advocates appearing for the
respondents - original writ applicants have vehemently objected to
the aforesaid submissions being made on behalf of the appellants.
Mr. K.B. Pujara, learned advocate along with learned Advocates
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Mr. Prithvirajsinh Jadeja , Mr. Ekram Qureshi, appearing on behalf
of the respondents, has submitted that the writ applicants
appointed as contractual lecturers by the State, are at par with ad
hoc Lecturers, as they are appointed by following selection
process adopted by the State in terms of the Government
resolution and are assigned same duties as that of adhoc
lecturers. Thus, it is contended that the respondents are at par in
all aspects including qualifications, nature of post, nature of duties
assigned.
13. At the outset, Mr. Pujara has invited attention of this Court to
para 64 and 65 of the impugned judgment and has submitted that
though the writ applicants were appointed as adhoc basis
ultimately they are Lecturers Class III rendering their service in the
Government Polytechnic Colleges on vacant sanctioned post. He
further invited the attention of this Court to the terms and
conditions of the appointment letter of Year 1992 to 2008. He
placed reliance upon GR dated 20.05.2008 and submitted that the
Selection Committee was constituted. He submitted that only
nomenclature may not define the entitlement arising out of their
service. He relied upon the doctrine of "equal pay for equal work",
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which is one of facet of Article 14 of the Constitution of India and
submitted that action of the State is in gross violation of legal and
fundamental rights of the respondents and the respondents are
entitled to minimum pay-scale with all allowances as rightly
directed by the learned Single Judge. He further tried to put the
case of contractual Lecturers on the same footing as that of ad hoc
Lecturers and submitted that the direction given by the learned
Single Judge in case of ad hoc Lecturers being confirmed by the
Hon'ble Apex Court, the present petitioners, who are contractual
appointees may not be deprived of the minimum scale benefits.
Responding to the arguments of State with regard to the order of
the learned Single Judge passed in Special Civil Application No.
1355 of 2012, he submitted that the Division Bench under the
impression that the petitioners therein are paid regular pay-scale
for regular posts had proceeded to pass erroneous order. In these
peculiar facts, the Review Application was preferred by certain
petitioners and the said Review Application is pending
consideration before the Bench. He has relied upon the decision of
Sanjay Singh Chauhan Vs. State of Uttarakhand passed in Writ
Petition No.484 of 2014, wherein the State Authorities were
directed to pay and release the salary to the petitioners at par with
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Allopathic Medical Officers and Dental Medical Officers from the
date when the same was paid to the Allopathic and Dental Medical
Officers. He, therefore, submitted that the practice adopted by the
mighty State is without any justification in giving different treatment
in pay as well as in extending benefits by treating them as two
different sets of Lecturers, who otherwise are part of the same
class and post. He therefore urged to dismiss the appeals filed by
the State and to allow appeal being LPA no. 1183/2017 preferred
by the writ applicants by considering their case for regularization.
Analysis :
14. There were broadly two sets of petitioners before the learned
Single Judge, one set of petitioners who were appointed as ad-hoc
lecturer and the other set of petitioners who were appointed on
contractual basis. The order of learned Single Judge allowing
prayer of ad hoc lecturer to treat them at par with ad-hoc lecturer
appointed prior to May-2008 w.e.f. January-2015 by extending
some benefit in terms of salary and other allowances was subject
matter of challenge in Letters Patent Appeal No.1184 of 2017. The
Hon'ble Division Bench of this Court vide judgment and order
dated 24.01.2018 observed as under:
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"[8.0] Heard learned Counsel appearing on behalf of the
respective parties at length. At the outset it is required to be
noted that by impugned common judgment and order the
learned Single Judge has partly allowed the said writ
petitions and has directed to put the adhoc lecturers
appointed after May 2008 at par with the adhoc lecturers
appointed prior to May 2008. The learned Single Judge also
directed that such adhoc lecturers appointed after May 2008
shall be paid the salary and other allowances at par with the
same received by the adhoc lecturers appointed prior to May
2008 and such benefits shall be granted to them with effect
from January 2015 onwards. Therefore, the short question
which is posed for consideration of this Court is whether the
learned Single Judge is justified in issuing such directions.
[8.1] Having heard learned Counsel appearing on behalf of
the respective parties and considering the material on record,
there does not appear to be any difference and/or distinction
between the adhoc lecturers appointed after May 2008 and
appointed prior to May 2008. All such adhoc lecturers are
similarly situated. All are appointed by similar procedure. All
are having the requisite qualifications. There is no difference
at all between the adhoc lecturers appointed after May 2008
and those appointed prior to May 2008. It is not in dispute
that as such the State Government itself pursuant to the
earlier order passed by this Court in Letters Patent Appeal
No.2986/2010 by which the Division Bench specifically
observed that it will be in the fitness of things that the State
Government once again gives a serious thought to the
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suggestion made by the Court as contained in the order
dated 24.03.2011 passed in Letters Patent Appeal
No.2986/2010 and directed that all the adhoc lecturers
appointed after May 2008 shall be paid the salary and other
allowances at par with the same received by the adhoc
lecturers appointed prior to May 2008. As observed herein
above there is no distinction and/or difference between the
adhoc lecturers appointed after May 2008 at par with the
adhoc lecturers appointed prior to May 2008. Therefore, as
such the learned Single Judge has rightly observed and held
that all those adhoc lecturers appointed after May 2008 shall
be entitled to the salary / wages at par with those adhoc
lecturers appointed prior to May 2008. At this stage it is
required to be noted that the duties and functions of adhoc
Professors / adhoc lecturers appointed prior to May 2008 and
appointed post May 2008 are similar and as observed herein
above there is no difference at all and therefore, as rightly
held by the learned Single Judge, the action of the original
respondents - State Authorities in treating all those adhoc
lecturers / Professors appointed post May 2008 differently
from the adhoc lecturers / Assistant Professors appointed pre
May 2008 is discriminatory and violative of Article 14 of the
Constitution of India.
[8.2] Learned Counsel appearing on behalf of the appellants
- State Authorities is not in a position to dispute that all the
adhoc lecturers appointed preMay 2008 and appointed post
May 2008 are performing the similar duties, appointed by the
same selection procedure. Under the circumstances and in
the facts and circumstances of the case, narrated herein
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above, we are of the opinion that the learned Single Judge
has not committed any error in directing the State to put the
adhoc lecturers appointed after May 2008 at par with the
adhoc lecturers appointed prior to May 2008 and further
directing that all those adhoc lecturers appointed after May
2008 shall be paid the salary and other allowances at par
with the same received by the adhoc lecturers appointed
prior to May 2008. We are in complete agreement with the
view taken by the learned Single Judge insofar as issuing the
aforesaid directions is concerned. Therefore, the respective
Letters Patent Appeals preferred by the appellant - State of
Gujarat being Letters Patent Appeal Nos.1354/2017,
1359/2017 and 2148/2017 deserve to be dismissed.
[8.3] Now, so far as Letters Patent Appeal No.1184/2017
preferred by the original petitioners of Special Civil
Application No.8152/2015 challenging the impugned
common judgment and order passed by the learned Single
Judge insofar as granting the reliefs fully with effect from
January 2015 onwards only and not granting the reliefs from
their initial appointment is concerned, at the outset it is
required to be noted that as such the learned Advocate
appearing on behalf of the original petitioners before the
learned Single Judge heavily relied upon the decision of the
Bombay High Court in the case of Sachin Ambadas Dawale
(Supra) in Writ Petition No.2046/2010 in support of their
submission that their services must be regularized from the
date of their initial appointment. However, the learned Single
Judge though observed that he could have followed the
decision of the Bombay High Court, which came to be
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affirmed by the Hon'ble Supreme Court, and could have
issued the directions in tune with the one issued by the
Bombay High Court as regards regularization of service,
however, he was not inclined to issue any mandamus in that
regard. The learned Single Judge in para 64 has observed
as under:
"64. I am of the view that the aforenoted Notification is in
no manner helpful to the writ applicants and could hardly
be said to be in line with the suggestion of this Court
referred to above. I could have followed the Division
Bench decision of the Bombay High Court referred to
above, which came to be affirmed by the Supreme Court,
and could have issued directions in tune with one issued
by the Division Bench of the Bombay High Court as
regards regularisation in service. However, for the
present, I am not inclined to issue any mandamus in this
regard. At the same time, I am of the firm view that the ad
hoc Lecturers appointed after May 2008 should be put on
par with the ad hoc Lecturers appointed prior to May
2008 and should be paid the pay scale and other benefits
accordingly. In the same way, I am of the view that the
contractual Lecturers should be paid the minimum of the
pay scale so far as the post of Lecturer is concerned with
all other allowances attached to the same."
There is no further justification at all by the learned Single
Judge to grant the benefits after putting them at par with
those appointed prior to May 2008 from January 2015
onwards only. However, at the same time considering the
decision of the Hon'ble Supreme Court in the case of Shiv
Dass (Supra), the original petitioners shall be entitled to the
benefits at par with those adhoc lecturers appointed prior to
May 2008 from the last 3 years preceding filing of the
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petition. There is no justification at all in granting such
benefits with effect from January 2015 onwards only. Once it
is held that all those adhoc lecturers / Assistant Professors
appointed after May 2008 shall be put at par with the adhoc
lecturers appointed prior to May 2008, they are entitled to
such benefits for the period even prior to filing of the
petitions. However, they can be granted the benefits of last 3
years from the date of filing of the petition only. Therefore, to
the aforesaid extent the impugned common judgment and
order passed by the learned Single Judge is required to be
modified and Letters Patent Appeal No.1184/2017 is required
to be partly allowed to the aforesaid extent. Considering
various decisions of the Hon'ble Supreme Court as well as
this Court, the original petitioners who as such are appointed
as adhoc lecturers and till the regular selected GPSC
candidates are available, the learned Single Judge has right
not granted the relief of regularization, however at the same
time has rightly put them at par with other similarly situated
employees insofar as the salary and other benefits are
concerned. The impugned judgment and order passed by the
learned Single Judge is absolutely in consonance with the
decision of the Hon'ble Supreme Court in the case of Jagjit
Singh (Supra). In the aforesaid decision the Hon'ble
Supreme Court in para 42.2, 42.3, 42.6 and 42.7 has
observed and held as under:
"42.2 The mere fact that the subject post occupied by the
claimant, is in a "different department" visavis the
reference post, does not have any bearing on the
determination of a claim, under the principle of 'equal pay
for equal work'. Persons discharging identical duties,
cannot be treated differently, in the matter of their pay,
merely because they belong to different departments of
Government (see Randhir Singh case7 and D.S. Nakara
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case8 ).
42.3 The principle of 'equal pay for equal work', applies to
cases of unequal scales of pay, based on no classification
or irrational classification (see Randhir Singh case7 ). For
equal pay, the concerned employees with whom equation
is sought, should be performing work, which besides
being functionally equal, should be of the same quality
and sensitivity (see Federation of All India Customs and
Central Excise Stenographers case9, Mewa Ram Kanojia
case11, Grih Kalyan Kendra Workers' Union case6 and
S.C. Chandra case19).
42.6 For placement in a regular payscale, the claimant
has to be a regular appointee. The claimant should have
been selected, on the basis of a regular process of
recruitment. An employee appointed on a temporary
basis, cannot claim to be placed in the regular payscale
(see Orissa University of Agriculture & Technology
case16).
42.7 Persons performing the same or similar functions,
duties and responsibilities, can also be placed in different
payscales. Such as 'selection grade', in the same post.
But this difference must emerge out of a legitimate
foundation, such as - merit, or seniority, or some other
relevant criteria (see State of U.P. v. J.P. Chaurasia10)"
Thus, the co-ordinate Bench noticed no distinction or any
difference between the appointment of ad-hoc lecturer appointed
after May-2008 and prior to May-2008 and found similarly situated.
The Division Bench therefore upheld the direction of Learned
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Single Judge of writ applicants being entitled to salary wages at
par with the ad hoc lecturer appointed prior to May,2008. The
Division Bench found such action of State to be violative of Article
14 of the Constitution of India while considering the judgment of
the Bombay High Court in the case of Sachin Ambalal (supra) in
Writ Petition No.2046 of 2010 and the Hon'ble Supreme Court in
the case of Shiv Dass (supra). The Hon'ble Bench modified the
direction of the learned Single Judge of granting benefit w.e.f.
January 2015 onward and granted such benefits for the last three
years from the date of filing of petition. At the same time, the
Hon'ble Division Bench has confirmed the view of the learned
Single Judge with regard to regularization. In light of the aforesaid
judgment of the Coordinate Bench confirmed by the Hon'ble
Supreme Court in Special Leave Petition (CIVIL) diary No.
39726/2018 , the present group of appeals arising out of the same
CAV judgment is left out in narrow compass. The only question
which falls for consideration for this Court is as to whether the
respondent contractual lecturers are required to be treated at par
as that of ad hoc lecturers appointed after May 2008 and whether
learned single judge has rightly conferred benefit of minimum of
the pay scale so far as post of lecturer is concerned with all other
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allowances available to it.
15. We would like to refer to a comparative table referring to details
of pay / pay scale/ first salary/ other allowances vis-a-vis regular
appointed lecturers/ ad hoc lecturers before / after May 2008 and
contractual lecturers.
Ad hoc before
2003 GPSC Contract
28.05.2008
8000-275-135400 8000-275-
+DA 13500
+HRA +DA
+TA +HRA
+MA +TA No
+CLA +MA Contract
+PF +CLA
Vacation Vacation
LTC +Increment
Increment NO PF
Ad hoc
Ad hoc after
2008 GPSC before Contract
28.05.2008
28.05.2008
8000-275- 8000-275- 8000-275- Rs.25000/-
135400 135400 135400 for diploma
+DA +DA +DA Rs.30,000/-
+HRA +HRA +HRA or Degree
+TA +TA +TA
+MA +MA +MA
+CLA +CLA +CLA
+PF Vacation No
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Increment
Vacation
+Increment No Vacation
LTC
NO PF No LTC
+Increment
+No 6th Pay No PF
+6th Pay
Commission +6th Pay
Commission on
on benefit Commission
benefits
on benefits
16. The learned Assistant Government Pleader has provided
details of the overall number of contractual lecturers in service of
Government Engineering College and Polytechnic. The same are
as under:
Details regarding Contractual Lecturer / Assistant Professor
of Department
Details in Details
numbers in %
Total number of Contractual appointees /
candidates appointed with Technical 2218 100%
education department after 2008 to till date.
Number of appointees / candidates who were
appointed on contractual basis who have
1324 60%
resigned and joined service with other
department
Number of candidates, who cleared GPSC
Examination during 2010 to 2015 and joined
with Technical education department as 259 12%
Lecturer / Assistant Professor as Regular
employees.
Number of candidates Terminated due to 402 18%
coming of regular appointees having cleared
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GPSC Examination
Number of contractual appointee in service
188 8%
present
NOTE: The GPSC has held the Examination for Lecturer /
Assistant Professor for Regular appointment in year 2010, 2013
and 2015. The examination details are annexured herewith.
17. She has also placed on record the details of original petitioners
who were appointed on contractual basis and pending petition has
participated in GPSC examination held in the year 2010, 2013 and
2015.
Details of Original Petitioners (Approximate Data)
Details in Details
numbers in %
Total number of Contractual appointees /
candidates appointed with Technical 313 100%
education department after 2008 to till date.
Number of appointee / candidates who were
appointed on contractual basis who have
126 40%
resigned and joined service with other
department
Number of candidates, who cleared GPSC
Examination during 2010 to 2015 and joined
with Technical education department as 54 17%
Lecturer / Assistant Professor as Regular
employees.
Number of candidates Terminated due to
coming of regular appointees having cleared 86 27%
GPSC Examination
Number of contractual appointee in service 47 15%
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present (Original Petitioner)
NOTE: The GPSC has held the Examination for Lecturer /
Assistant Professor for Regular appointment in year 2010, 2013
and 2015. The examination details are annexured herewith.
18. On comparison of the aforesaid details, it transpires that as
against 313 contractual appointees who were appointed after 2008
till date, 126 such appointees have resigned. Around 54
contractual ad hoc lecturers who have participated in GPSC
examination for 2010-2015 and have cleared GPSC examination
and have joined as lecturer employees. In the case of 86
contractual employees, their services were terminated on
availability of regular appointees. Thus, the present appeals
survive only qua 47 employees, who have been continued in
service. May that be the case, but looking at the prayer sought for
the relief granted by this Court, we are of the view that irrespective
of being continued or terminated from services, their entitlement of
minimum of pay scale and allowances at par with the other lecturer
needs to be adjudicated.
19. The appellant State has tried to dispute applicability of the
doctrine of equal pay for equal work by contending that the
contractual employee cannot be treated at par with ad hoc lecturer
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appointed before / after May 2008. Attention of this Court was
invited to the reasons recorded by the Learned Single Judge more
particularly para 64 and 65 and it was submitted that no reasons
have been assigned by the learned single judge to treat them in
similar manner as that of ad hoc lecturers. It was therefore
submitted that no directions of grant of minimal of pay scale of
regular lectures could have been granted in case of contractual
employees. The learned Assistant Government pleader has placed
heavy reliance on G.R. and has submitted that appointment of
contractual employee was made pursuant to the Government
Resolution dated 20.05.2008 issued by the Education Department
whereby a policy decision was taken to meet with the
administrative exigencies. It is further contended that the original
petitioners were not appointed through G.P.S.C. and hence their
source of appointment being different, the doctrine of equal pay
and equal work cannot be applied in case of petitioners.
20. If one looks at the legal position evolved in this regard, the
constitutional principle of 'equal pay for equal work' has been
upheld by the Hon'ble Supreme Court of India with respect to
temporary employees' vis-à-vis permanent employees in the
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government sector. In the case of the State of Punjab and Ors. v.
Jagjit Singh and ors., reported in (2016) SCC, the Hon'ble
Supreme Court has ruled that temporary employees performing
similar duties and functions as discharged by permanent
employees are entitled to draw wages at par with similarly placed
permanent employees. The principle must be applied in situations
where the same work is being performed, irrespective of the class
of employees.
21. In the case of Jagjit Singh( supra), the Hon'ble Supreme Court
was examining the conflicting decisions arising from the Punjab
Haryana High Court. The High Court had decided on the question
as to whether temporary employees (daily-wage employees, ad-
hoc appointees, employees appointed on casual basis, contractual
employees and the like) are entitled to the same wages as that of
permanent employees, if they discharge similar duties and
responsibilities as that of permanent employees. In the case of the
State of Punjab & Ors. v. Rajinder Singh & Ors., ( LPA No. 337
of 2003, decided on 7.1.2009) took the view that temporary
employees would not be entitled to the minimum of the pay-scale
as was being paid to similarly placed permanent employees.
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However, the Court in the case of the State of Punjab & Ors. v.
Rajinder Kumar (LPA No. 1024 of 2009, decided on 30.8.2010)
took a contrary view and held that temporary employees would be
entitled to minimum of the pay-scale, alongwith permissible
allowances (as revised from time to time), which were being given
to similarly placed permanent employees. The matter was referred
to a full bench of the Punjab & Haryana High Court in the case of
Avtar Singh v. State of Punjab & Ors. The full judge bench while
adjudicating upon the issue, concluded that temporary employees
are not entitled to the minimum of the regular pay-scale, merely on
account of the reason that the activities carried out by daily wagers
and permanent employees are similar. However, this rule was
subjected to two exceptions, wherein temporary employees would
be entitled to wages at par with permanent employees:
1. If the temporary employee has been appointed in a regular
sanctioned post after undergoing a selection process based
on fairness and equality of opportunity to all other eligible
candidates
2. If the temporary employee has been appointed in a post
which is not a regular sanctioned post, however, their
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services have been availed continuously, with notional
breaks, for a sufficiently long period.
22. The matter traveled up to Hon'ble Supreme Court where
challenge was raised against all the three aforementioned
judgments. Analyzing in length the principles laid down by various
courts, the Supreme Court observed that the issue at hand
necessitated a bird's eye view on the underlying ingredients which
govern the principle of 'equal pay for equal work'. The principle
has been extensively deliberated in a catena of decisions. In
order to make the determination, the hon'ble Supreme Court
examined (i) the situations where the principle was extended to
employees engaged on a permanent basis and thereafter (ii) the
situations in which the principle was extended/declined to
different categories of temporary employees. Accordingly, various
principles have been discerned and distinguished by the Hon'ble
Supreme Court. Analyzing claims by temporary employees under
the principle, the Hon'ble Supreme Court observed:
1. Not paying the same wages, despite the work being the
same, is violative of Article 14 of the Constitution of India
and amounts to exploitation in a welfare state committed to
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a socialist pattern of society.
2. The right of equal wages claimed by temporary employees
emerges, inter alia, from Article 39 of the Constitution.
3. The claim for equal wages would be sustainable where an
employee is required to discharge similar duties and
responsibilities as permanent employees and the concerned
employee possesses the qualifications prescribed for the
particular post.
4. In a claim for equal wages, the duration for which an
employee remains or has remained engaged, the manner of
selection/appointment etc. would be inconsequential, insofar
as the applicability of the principle is concerned.
5. Based on the principle flowing from Article 38(2) of the
Constitution, the Government cannot 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 other benefits which are being extended to casual
workers.
6. The classification of workers (as unskilled, semi-skilled and
skilled), doing the same work, into different categories, for
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payment of wages at different rates is not tenable. Such an
act of the employer would amount to exploitation and shall
be arbitrary and discriminatory, and therefore, violative of
Articles 14 and 16 of the Constitution.
7. If daily-wage employees can establish that they are
performing equal work of equal quality, and that all the other
relevant factors are fulfilled, a direction by a court to pay
such employees equal wages (from the date of filing the writ
petition), would be justified.
Thus, the Hon'ble Supreme Court observed that an
employee engaged for the same work cannot be paid less than
another who performs the same duties and responsibilities and
certainly not in a welfare state. Such an action besides being
demeaning, strikes at the very foundation of human dignity. The
Hon'ble Supreme Court observed that anyone who is compelled
to work at a lesser wage does not do so voluntarily - he/she does
so to provide food and shelter to his/her family, at the cost of
his/her self-respect and dignity, at the cost of his/her self-worth,
and at the cost of his/her integrity. Any act of paying less wages
as compared to others similarly situated, constitutes an act of
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exploitative enslavement, emerging out of a domineering position.
Undoubtedly, the action is oppressive, suppressive and coercive,
as it compels involuntary subjugation. The Hon'ble Supreme
Court further observed that India being a signatory to the
International Covenant on Economic, Social and Cultural Rights,
1966, there is no escape from the obligations thereunder in view
of the different provisions of the Constitution. Thus, the principle
of 'equal pay for equal work' constitutes a clear and unambiguous
right and is vested in every employee, whether engaged on a
permanent or temporary basis.
23. Accordingly, the Hon'ble Supreme Court set aside the
decisions rendered by the full bench of the Punjab & Haryana High
Court in Avtar Singh v. State of Punjab & Ors. and the division
bench in State of Punjab & Ors. V. Rajinder Singh while the
decision of the division bench in State of Punjab & Ors. v. Rajinder
Kumar was upheld, subject to the modification that the concerned
employees would be entitled to the minimum of the pay-scale of
the category to which they belong.
24. The sole factor that requires our determination is, whether the
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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' as summarized earlier by the Hon'ble
Supreme Court. In fact, in our opinion the core factor which
governs the entitlement of pay at minimum of pay scale of the
regular lectures is concerned, guided by the Article 38(2) of the
Constitution of India. The learned Single in para 40 to 43, has
extensively referred to relevant observations of the Division Bench
of the Bombay High Court in the case of Sachin Ambadas Dawale
(supra) while examining the aspect of regularization . We notice
that the present respondents though contractual appointees are
equally eligible and qualified to be appointed on the post of
lecturers. Their appointment was made through a open selection
process as adopted by the State department by forming a
selection committee constituted in terms of the Government
resolution dated 20.05.2008 issued by the Education department.
The selection committee consisted of the Director of technical
education (chairman), Principal of Engineering/ polytechnic/
pharmacy college (member), Expert of the subject (member) and
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Joint Director technical education. In fact, advertisements were
published calling for applications on sanctioned vacant posts,
applications of eligible candidates were accepted, written exams
were held, qualified candidates were called for interview and a
meritorious candidates list was notified and appointment orders
were issued. Thus, there cannot be dispute about writ applicants
possessing the requisite qualifications as per the statutory
recruitment rules prevalent at the relevant time. As rightly pointed
out by Mr. Pujara, they are discharging the same responsibilities,
teaching to the same students, in the same Government
Engineering Colleges and Polytechnics. There is no functional
difference pointed out by the State in their work. Hence, in our
opinion no discriminatory treatment ought to have been given by
State vis-a-vis adhoc letcurers appointed prior to them. The
principle of 'equal pay for equal work' will be applicable in such
circumstances.
Undoubtedly, Article 309 of the Constitution of India enables
the executive to regulate the recruitment and to make recruitment
to the government service. But this power is not absolute as it is
subjected to the provisions of the constitution and statutes enacted
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by the appropriate legislature. The executive has the power to
create and abolish any post under government, however, such
powers are not unfettered and subject to provisions of the
Constitution, especially articles 14 and 16 and provisions of
relevant statutes and statutory rules control this power of the
executive. The appointments to government services are made
through the prescribed agency. But, exigencies of administration
may sometimes call for the making of ad hoc or temporary
appointments. The object behind the exercise of this power is
ultimately to run smooth administration. In such circumstances, the
State having availed their services cannot argue that their
appointment is different as compared to ad hoc lecturers. As per
Black's Law Dictionary, the term "ad hoc" means "something which
is formed for a particular purpose". It is in terms recorded in the
G.R. dated 20.05.2008 that appointment was made to meet the
contingency arising on an account of delay in completing the
process of regular recruitment to the post through GPSC and it
was not possible to leave the post vacant till then, and to meet that
contingency an appointment was made, in such circumstances, it
could appropriately be identified as a "stop gap arrangement"
and appointing in the post as "ad hoc". The G.R. of the Education
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department itself refer such appointments as ad hoc in nature.
Thus, we do not find any substance in the ground raised by the
State that their source of appointment being different would have
effect on their entitlement of benefits as compared to adhoc
lecturers appointed before / after May 2008.
25. Now, the relief sought for by writ applicants as regards
regularization is concerned, we are bound by the ratio of the
Hon'ble Supreme Court in the case of the State of Karnataka vs.
Umadevi, reported in (2006) 4 SCC 1, the Hon'ble Supreme Court
held that the Courts are not expected to issue any direction for
absorption/regularization or permanent continuance of temporary,
contractual, casual, daily-wage or ad hoc employees. The Court
held that such directions issued could not be said to be
inconsistent with the constitutional scheme of public employment.
The Court held that merely because a temporary employee or a
casual wage worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such
continuance, if the original appointment was not made by following
a due process of selection as envisaged in relevant rules. In view
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of the law laid down by this Court, the directions sought for by the
appellants cannot be granted. But at the same time we deem it fit
to reiterate that if the employees who were entitled to be
considered in terms of Para-53 of the decision in case of Umadevi
(supra), will not lose their right to be considered for regulairstion.
The Hon'ble Supreme Court has in the case of State of
Karnataka v. M.L. Kesari , reported in (2010) 9 SCC 247, while
clarifying the illegal appointment as against irregular appointments
has held that considering the exceptions carved out in case of
Umadevi (supra), as a one time measure State can consider for
regularisation of services in case of irregular appointments.
26. For the reasons recorded, we dismissed all the letter's patent
appeals preferred by the State as well as the writ applicants and
hereby confirmed the Judgment and order passed by the Learned
Single Judge. We further clarify that the writ applicants shall be
entitled to arrears of difference of wages 3 years preceding the
filing of writ petitions before this Court which shall carry simple
interest at the rate of 8% from the date when the applicant became
entitled till the realization of the actual amount. The respondent
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state authorities are directed to make such payment preferably
within 3 months from the date of receipt of this order.
27. We choose not to entertain the relief sought for by the writ
applicants seeking regularization. We could notice that the writ
applicants were appointed against vacant sanctioned posts. The
selection committee constituted by the state has followed
procedure prescribed under resolution and therefore the
appointments of contractual lecturers can at the most be treated as
irregular appointments. The Learned Single Judge has relied
upon the earlier order dated 24th march, 2011 passed by the
Division Bench of this Court in Letters Patent Appeal no. 2986 of
2010, and directed the State to look into the cases of
respondents as a one time measure for absorption
/regularization. The fact that there exist vacant sanctioned posts
and the state has availed their services since long, we would like
to remind the State, once again about the directions issued by the
learned Single Judge and as well of the Division Bench of this
Court. It is needless to state that such exercise may be undertaken
by the State in terms of para 53 of the judgment of Hon'ble
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Supreme Court in the case of Umadevi (supra) and in the case of
M.L. Kesari (supra). The civil application seeking vacating of
interim relief filed by the writ applicants stands disposed of. No
cost.
(SONIA GOKANI,CJ(DESIG.))
(NISHA M. THAKORE,J)
Y.N. VYAS
