Gujarat High Court

Diwaliben Babaldas Patel vs The State Of Gujarat on 11 August, 2025

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                        C/SCA/19133/2015                                      CAV JUDGMENT DATED: 11/08/2025

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                                                                            Reserved On   : 24/07/2025
                                                                            Pronounced On : 11/08/2025

                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    R/SPECIAL CIVIL APPLICATION NO. 19133 of 2015

                                                         With
                                     R/SPECIAL CIVIL APPLICATION NO. 19172 of 2015
                                                         With
                                     R/SPECIAL CIVIL APPLICATION NO. 19269 of 2015

                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT
                      ==========================================================

                                  Approved for Reporting                      Yes            No
                                                                               ✓

========================================================== DIWALIBEN BABALDAS PATEL Versus THE STATE OF GUJARAT & ORS.

========================================================== Appearance: in SCA/19133/2015 MR. N.V. SOLANKI FOR MR.RAJESH B SONI(2632) for the Petitioner(s) No.

MR. HENIL SHAH, AGP for the Respondent(s) No. 1,2 MR HAMESH C NAIDU(5335) for the Respondent(s) No. 3 - Trust ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

1. Rule returnable forthwith. Learned advocates for the

respective respondents waive service of notice of rule on

behalf of respective respondents.

2. Since the prayers and facts involved in the present

petitions are having almost identical facts, and the issues

involved in the present petitions are almost identical in

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nature, hence, with the consent of the parties, the

matters are heard together and decided together and

Special Civil Application No.19133 of 2016 is considered

as lead matter.

3. The present lead petition i.e. Special Civil

Application No.19133 of 2016 is filed by the petitioners

for seeking the following reliefs:

                              "(A)     admit this petition.
                                                                       And
                              (B)    to    issue    an   appropriate         writ    of    mandamus         and/or

certiorari or in the nature of mandamus or certiorari or any other such order and directions declaring the impugned action and decision of the respondents no.1 and 2 Governemnt dated 15.12.2014 as illegal, arbitrary, discriminatory, unjust and unconstitutional being violative of Articles 14 and 16 of the Constitution of India.

And (C) an appropriate order and/or directions against the respondents for parting with the monthly salary of the petitioners on the existing pay scale of Rs.5200-20200 under the ICDS Scheme which is being presently granted by them to rest of the Supervisors (Female) employed by them under such scheme, be passed and such payment be continued to her on the basis of such pay scale only that may be revised from time to time by the respondents herein.

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(D) an appropriate order or direction to make payment of the entire differential amount of salary to the petitioners herein which is legally liable to be paid to her on the basis of existing pay scale and earlier prevailing pay scale since the date of her appointment and in commensurate with the revision of such pay scale made from time to time and as per the recommendations of 5th and 6th pay commission be passed in favour of the petitioner and against the respondents herein and they be directed to make payment thereof in the stipulated time that may be fixed by this Honourable Court and to facilitate the compliance of such direction that may be issued by this Honourable Court in this petition, the respondent no.1 and 2 Government be directed to release the necessary financial grant in favour of the repsondent no.3 trust, if such financial grant has not been paid or parted with to the respondent trust so far by the Government in that regard.

(E) Any other order deemed fit and proper in the facts and circumstances of this case be passed.

(F) cost of this petition be awarded from the respondents."

4. Brief facts as stated in the memo of lead petition

are as under:

4.1 It is the case of the petitioners in this lead petition

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that the petitioner is appointed as Supervisor (Female)

i.e. MukhyaSevika on 1.07.1986 under the Integrated

Child Development Services (ICDS) scheme launched and

introduced by the Govt. of India in coordination with the

State Govt. The respondent No.3 Trust is an

intermediary Implementing Agency who is implementing

such scheme under the direct control and supervision of

the respondent Govt. No.1 & 2. The State Government is

receiving 100% financial grant from the Govt. of India

for defraying the expenses to be incurred for the scheme

which includes the salary etc. of all the employees

appointed by the trust under the such scheme. The

petitioner has thus served with the respondents on the

post of such supervisor (female) continuously since 01.07.1986 and is presently discharging her duties

without any stigma on her part. It is the case of the

petitioner in this petition that the petitioner was at the

time of her appointment paid her monthly salary on the

pay scale of Rs.950-1500 while other such Mukhya

sevikas who were though subsequently appointed & who

used to discharge similar service in all respects were

being paid their monthly salary in the pay scale of Rs.

4500-7000. For reasons best known to the respondents,

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not only that since 01.04.2005, the respondents started

work as part time with her monthly salary on fixed

basis i.e. @ Rs.6000 p.m. on fixed basis only instead of

the prevailing pay scale of Rs. 5200-20200, whereby the

others such Mukya sevikas are receiving their monthly

salary on such pay scale & thus, are getting

approximately Rs.39,000 to Rs.40,000 p.m. It is the case

of the petitioner in this petition that all the respondents

have adopted such discriminatory and arbitrary approach,

attitude and action towards the petitioner in an illegal

manner & contrary to the spirit & object of the ICDS

scheme in the matter of her monthly salary which has

resulted into great economic loss and patent injustice to

the petitioner so far. Hence, the respondent no.3 trust & the petitioner had made various representation in writing

to the respondent respondent Nos. 1 & 2 inter alia

requesting them to eliminate such discrimination &

unjust approach qua the petitioner and the said matter

was under contemplation & consideration of the Govt.

too. However, they were not taking any decision thereon

for a quite a long time stood lapsed.

4.2 It is the case of the petitioner in this petition that

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hence, the petitioner & such others had approached this

Hon'ble Court by way of filing Special Civil Applicaiton

No.6644 of 2014 and had sought directions of this Court

for the same. This Hon'ble Court vide its order dated

05.05.2014 had also directed the Govt. to take the

decision at an earliest but the Government had failed to

do so. However, in such situation, the petitioner along

with others had been constrained to file contempt

petition & thereafter only the Govt. did take a decision

vide its order dated 15.12.2014 whereby instead of

considering such issue in its proper perspective & in a

lawful manner, the govt had on the contrary refrained

from treating the petitioner & such others their

employees even & had thrown the entire burden on the respondent no.3 trust. It is the case of the petitioner in

this petition that in such situation, the petitioner had

again made joint representation dated 30.12.2014 but is

remained of no consequence & hence the present petition

has been preferred.

5. Heard Mr. N.V. Solanki, learned advocate appearing

on behalf of Mr. Rajesh Soni, learned advocate for the

petitioners in the respective petitions, Mr. Himesh Naidu,

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learned advocate for the respondent No.3 - Trust and

Mr. Henil Shah, learned Assistant Government Pleader

for the respondent-State.

6.1 Mr. N.V. Solanki, learned advocate appearing on

behalf of Mr. Rajesh Soni, learned advocate for the

petitioners in the respective petitions has by drawing the

attention of this Court towards the facts of the present

case that during the year 1986-88, the petitioners were

appointed as Mukhya Sevika (supervisor) in ICDS

Scheme on temporary basis. He has submitted that the

programme, which is going on under the ICDS scheme is

of Union Government, who has provided funds to the

State Government to implement the programme and in turn, the State Government has provided necessary grant

to the concerned Authority. In the present case, it is

respondent No.3 - trust to meet with the necessary

expenses to implement the scheme. Accordingly, the State

Government has approved the necessary expenses and

passed appropriate order regarding the mandatory

benefits to the present petitioner till the year 2002. He

has further submitted that from 01.04.2005, the

petitioners are getting fixed pay of Rs.6000/- p.m. and

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some of the petitioners are getting Rs.9000/- per month

as fixed pay. Furthermore, he has submitted that

petitioners have approached this Court by way of Special

Civil Application No.6644 of 2014, whereby this Court

has passed the order directing the State Government to

take final decision on the issue of regularization and

regular pay of these petitioners. Thereafter, on

14.12.2014, the State Government passed order by

directing that these petitioners were appointed on

temporary basis due to scarcity of graduate candidates at

the relevant point of time and petitioners having been

non-graduate candidates, were appointed at the relevant

point of time, but while approving the appointment of

the petitioners, the State Government has passed the order by directing the respondent No.3 to replace them

as soon as they get qualified candidates. Thereafter, the

State Government has extended the contracts of the

petitioners periodically and from 01.04.2002, the

Government has decided to stop grant to seven Mukhya

Sevikas, who are petitioners before this Court. By way of

this order, the Government has clarified that these

Mukhya Sevikas are the employees of trust and not the

government employees and, therefore, the present

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petitions are filed by praying to give existing regular pay

of 5200-20200 to the petitioners and give difference

amount of salary also.

6.2 He has further submitted that thereafter by way of

Misc. Civil Application, the Court has directed the

respondent-trust to give transfer to the petitioners but

the petitioners were not permitted to resume the duties

as respondent has submitted that respondent authority

has to take proper legal advice from the Advocate. He

has further submitted that such action of the respondent

No.3 Authority, who entered into contract with the State

Government, where the petitioners were not party on

that basis the service of the petitioners are terminated

after so many years where the petitioners have worked as Mukhya Sevika and even after non-receipt of grant in

the year 2002, the petitioners have worked in fixed

salary of Rs.6000/- and Rs.9,000/- with the respondent

No.3 trust by discharging their moral duty and,

therefore, he has submitted that by applying to the

principle where other Mukhya Sevikas are getting pay

scale of 5200-20200, there is no reason not to grant the

same pay scale to the petitioners, who are similarly

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situated by applying the principle of "equal pay for equal

work" and, therefore, he has submitted that impugned

action of the respondents are arbitrary and improper and

required to be interfered with by granting the prayers

prayed in the present petitions in view of several

judgments of the Hon'ble Apex Court as well as the

judgment of this Court, however, he has not cited

specific judgment at the time of making his arguments

and, therefore, he has prayed to allow the present

petition.

7.1 Per contra, Mr. Himesh Naidu, learned advocate for the respondent No.3 - trust in Special Civil Application

Nos.19133 of 2015 and 19172 of 2015 has submitted that

the respondent No.3 is an autonomous body executive welfare activities. He has further submitted that the

trust is running independently and its work is based on

donations and on money of the trustees to meet the

financial expenses and normally the respondent No.3

trust does not get any fund from the Government. He

has further submitted that there is no direct control of

Government and, therefore, his objection about the

maintainability of petition as looking to the prayers of

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the present petition, the respondent No.3 cannot be

considered as 'State' under Article 12 of the Constitution

of India. He has further submitted that the present

petitioners are also regulated by the Rules of the trust.

He has submitted that initially, the trust was getting

fund from the State Government to pay salary to the

petitioners till the year 2002 but after the year 2002, it

was stopped as these petitioners are not having

necessary education qualifications as required for the said

post. He has also submitted that as directed by this

Court in Civil Application, the trust has given transfer

but the petitioners do not resume their job. He has

further submitted that there is no case of oral

termination.

7.2 In support of his submissions, he has relied on the

judgment dated 03.02.2006 passed by the Division Bench

of this Court in Letters Patent Appeal No.1524 of 2004

in Special Civil Application No.3931 of 2004, more

particularly, paragraphs 19 and 20 of that judgment is

relevant and has that the present petition is required to

be dismissed.

8.1 Mr. Henil Shah, learned Assistant Government

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Pleader for the respondent-State has submitted that the

present petition is misconceived as there is no dispute

that initially, the State Authority is implementing

authority of the ICDS scheme for the funds received

from the Central Government. Accordingly, when the

petitioners were appointed by the respondent No. 3 in

the year 1986-88, such permission is granted initially for

five years on condition that whenever respondent No. 3

trust will find the qualified candidate as per

requirement, the services of the petitioners will be

discontinued by the trust, however, till the year 2002,

the respondent trust could not find suitable candidate

and by considering various aspects including the financial

burden, the State has decided not to grant any amount further towards the payment of salary of the petitioners

as they are not having necessary requisite qualification

and such appointments are made for the limited period

on the temporary basis. Considering the other relevant

aspects, the funding to the respondent No. 3 trust is

stopped for the payment of salary of the petitioners, who

are Mukhya Sevikas. Thereafter, the respondent trust

has continued their services by paying some fixed

amount from their own fund and, therefore, in any case

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from the factual scenario also, the liability of the

respondent State came to be ceased from the year 2002.

Moreover, there is contract between the trust and the

State Government that the trust will look after all the

expenses of such petitioners and State is not responsible

after the year 2002 for such payments. Learned AGP has

further submitted that requirement of these petitioners

are on temporary basis as they were not qualified as per

requirement of scheme and their services cannot be

regularized. He has further submitted that equal pay for

equal work is not applicable to the temporary basis

employees.

8.2 In support of his submissions, he has relied on the

following judgment, which reads as follows:

(i) Harbans Las vs. State of H.P. reported in (1989) 4 SCC 459,

(ii) Grih Kalyan Kendra Workers' Union vs. Unior of India reported in (1991) 1 SCC 619,

(iii) State of Haryana vs. Tilak Raj reported in (2003) 6 SCC 123,

(iv) State of Punjab vs. Surjit Singh reported in (2009) 9 SCC 514.

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8.3 He has submitted that in view of the above, the

present petitioners could not establish their case that

they were rendering similar duties and responsibilities as

were being discharged by regular employees holding

corresponding post and having similar qualification of the

regular employees. He has also relied on one more

judgment of the Hon'ble Apex Court in the case of State

of Madhya Pradesh Vs. R.D. Sharma and Another

reported in 2022 LiveLaw (SC) 97, and has submitted

that the Court has held in this judgment that it has

always been held to be more prudent to leave such task

of equation of post and determination of pay scales to be

left to an expert body. Unless there is cogent material

on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given

post, and that the court's interference was absolutely

necessary to undo the injustice, the courts would not

interfere with such complex issues and, therefore, learned

AGP has submitted that there is no reason to grant any

relief in the present positions as the Authorities have

acted in just and reasonable manner and in accordance

with law and, therefore, the present petitions are

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required to be dismissed.

9.1 I have considered the rival submissions made at the

bar by the respective parties. I have also considered the

necessary requirement pursuant to the notification of

Government dated 03.06.1989 for the post of supervisor

(female) in Integrated Child Development Service

Programme Class-III, who are considered as Mukhya

Sevikas. The requirement as per Rules 2 and 3 of

Notification dated 03.06.1989 of the Gujarat Government

Gazette, 6.7.1989, Health & Family Welfare Department

reads as under:

"2. Appointment to the Post of the Supervisor (Female) in Integrated Child Development Services Programme Class III, in Gujarat Public Health Services shall be made by direct selection.

3. To be eligible for appointment by direct selection to the Post mentioned in rule 2 a candidate shall-

(a) not be more than 28 years of age

(b) (i) possession of a degree of Home Science or Child Development or Nutrition of a recognized University or

(ii) have passed secondary school certificate examination

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with 11 months training of Balsevika and 8 years experience as either Balsevika or Anganwadi Worker or both under Integrated Child Development Services Scheme or Nutrition Programme, under Public Health Services or.

(iii) have passed secondary school certificate examination and have 10 years experience as an Anganwadi Worker Under Integrated Child Development Services Programme under Public Health Services.

Provided that the upper age limit may be relaxed in favour of a candidate mentioned in sub clauses (ii) and (ill) of clause (b) of rule 3 to the extent of the period served as Balsevika or as the case may be. Angawadi worker, subject to a maximum relaxation of 15 years and upto the age of 45 years.

Provided further that the upper age limit may be relaxed in favour a candidate possessing exceptionally good qualifications.

Provided also that the upper age limit may be relaxed in favour of a candidate belonging to scheduled castes, scheduled tribes or socially and economically backward class in accordance with the provisions of the Gujarat Civil Services. Classification and Recruitment (General) Rules, 1967 as amended from time to time."

9.2 Considering this with the factual background, there

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is no quarrel about the fact that in the year 1986-88,

the petitioners were appointed as Mukhya Sevikas by the

respondent No. 3. It is also not in dispute that the

programme for ICDS scheme is carried out by the State

Government through executing bodies like respondent No.

3 trust, and the funds are being given by the Central

Government to the State Government for implementation

of such scheme and State Government is taking help of

such local bodies/authorities like the present respondent

No. 3 trust for implementing of that scheme in some of

the cases. In the present case, the respondent No. 3 has

appointed the present petitioners, who are not holding

the requisite qualifications and at the time of giving

approval, the State Government has given approval initially for five years on condition that as soon as the

candidates, who are having requisite qualification, are

found by the respondent-trust then the services of the

petitioners, who are not having requisite qualifications,

will be put to an end and this situation was continued

and thereafter, some repeated extensions by the State

Government is given to the respondent No. 3-trust till

the year 2022, and in the year 2002, the State

Authorities have found that the petitioners are not

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qualified and not possessing requisite qualification, the

payment of such salary which is given to the respondent

No.3 trust is stopped and accordingly contract is also

made by the trust with the respondent-State Government

and thereafter, the respondent No. 3 trust paid the

amount of salary to the petitioners by way of fixed

salary of Rs.6000/- and Rs.9,000/-. The respondent No. 3

trust is not getting any further assistance from the State

Government after the year 2002, respondent No. 3 trust

is managed by the funds of donation or the funds given

by the trustees and, therefore, there is some substance

in the contention raised by the respondent No. 3 that

respondent No. 3 is not State considering the judgment

dated 03.02.2006 passed by the Division Bench of this Court in Letters Patent Appeal No.1524 of 2004 in

Special Civil Application No.3931 of 2004, more

particularly, paragraphs 19 and 20 of that judgment, as

under:

"19. It is pertinent to note that the employer Trust cannot be said to be a "State" within the meaning of Art. 12 of the Constitution of India. If one looks at the observations made by the Hon'ble Supreme Court in the case of Chander Mohan Khanna (supra), it is very clear that the Trust can never be treated as a State. The Hon'ble

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Supreme Court has considered several factors which should be considered before considering a particular institution as a 'State' within the meaning of Art. 12 of the Constitution. Looking to the observations of the Hon'ble Supreme Court, which have been reproduced hereinabove, we are of the view that the learned single judge has rightly come to the conclusion that the Trust is not a 'State'.

20. In the instant case, it is an admitted fact that the Trust is not getting any financial aid from the State of Gujarat. On the Board, which manages the Trust, there is only one member who is a government officer and other members of the Board are respected citizens or residents of a particular area. Simply because one of the members of the Board is the Collector of the District, it cannot be said that the said Trust is a "State", especially when no financial assistance is given to the Board for managing the Trust and no function of the State is performed by the Trust. We, therefore, agree with the findings arrived at by the learned single Judge that respondent No.2-Trust is not a "State".

9.3 In view of that, I am of the opinion that when the

present petitions are also having other disputed question

of fact involved in the present petition, it is always

better for the litigant to exhaust equally efficacious

statutory remedy at the first instance as observed by the

Hon'ble Apex Court in the cases of (i) U.P. Jal Nigam

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and Another vs. Nareshwar Sahi Mathur And Another

reported in (1995) 1 SCC 21 and (ii) M/S. Scooters India

Ltd vs M. Mohammad Yaqub & Another reported in

(1998) 6 SCC 549.

9.4 I have also considered the judgment of the Hon'ble

Apex Court for considering the contention of the

respondent No.3 in the case of Dr. C.A. Shah vs.

Gujarat Cancer & Research Institute, Ahmedabad

reported in (1992) 1 GLR 687, in that case, it was held

that the question was whether Gujarat Cancer &

Research Institute, Ahmadabad can be said to be a

'State" within the meaning of Article 12 of the

Constitution of India. In the instant case also, the trust is not performing any public duty or any function of the

State.

9.5 Moreover, considering the fact that the petitioners

are not holding requisite qualification for the post of

Mukhya Sevika and the State Government has already

decided in the year 2002 not to give any fund to the

respondent No. 3, no prayer can be entertained against

the respondent Nos. 1 and 2 as being a State, they are

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not having any liability in the facts and circumstances of

the present case to pay any wages to the present

petitioners after the year 2002.

9.6 It is fruitful to refer the judgment of the Hon'ble

Apex Court in the case of State of Madhya Pradesh Vs.

R.D. Sharma and Anrther reported in 2022 LiveLaw (SC)

97, more particularly, paragraph 14 is relevant, as under:

"14. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of "equal pay for equal work" placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of

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pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the court's interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 "equal pay for equal work" is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government."

9.7 In view of the aforesaid facts, this Court is of the

view that principle of "equal pay for equal work" is not

applicable to the facts of the present case. Though the

post of Mukhya Sevikas are under National Food

Security Act and Right to Education Act, however, since

the petitioners are not holding requisite qualification, the

principle of "equal pay for equal work" does not apply in

the facts and circumstances of the present case more

particularly when the State has stopped to give

grants/funds after the year 2002 to respondent No. 3

trust and considering various judgments of the Hon'ble

Apex Court which are relied by learned AGP and