Machhi Mukeshbhai Somabhai vs Chairman, Gujarat Secondary And Higher ...
2025 Latest Caselaw 6447 Guj

Gujarat High Court

Machhi Mukeshbhai Somabhai vs Chairman, Gujarat Secondary And Higher ... on 10 September, 2025

Author: A. S. Supehia

Bench: A.S. Supehia

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                            C/SCA/20213/2018                                           ORDER DATED: 10/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 20213 of 2018
                      ==========================================================
                                    MACHHI MUKESHBHAI SOMABHAI & ORS.
                                                  Versus
                            CHAIRMAN, GUJARAT SECONDARY AND HIGHER SECONDARY
                                          EDUCATION BOARD & ORS.
                      ==========================================================
                      Appearance:
                      MR DILIP L KANOJIYA(3691) for the Petitioner(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,
                      33,34,35,36,37,38,4,5,6,7,8,9
                      MR MEET SHAH FOR MR AD OZA(515) for the Respondent(s) No. 1,2
                      RULE SERVED for the Respondent(s) No. 3
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                                            Date : 10/09/2025
                                                             ORAL ORDER

1. When the matter is called out, learned advocate Mr.Shah at the outset, has pointed out the order dated 12.10.2021 passed by the learned Single Judge in Special Civil Application No.10056 of 2021, wherein similarly situated employee had challenged the very same impugned order dated 26.05.2016 passed by the respondent No.1-Board and has submitted that the Coordinate Bench of this Court has dismissed the said writ petition. It is submitted that no Letters Patent Appeal is filed against the said order and such order has become final.

2. In the present writ petition, the petitioner has prayed for the following relief:

"25B) Your Lordships may be pleased to quash and set aside the order passed by the Gujarat Secondary Education (Respondent No.1) board dated 26.5.2016 and be further please to direct the respondents to comply

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with the judgment and order dated 5.11.2015 passed by this Hon'ble Court in SCA No.11016/1998."

3. In the order dated 12.10.2021 passed in Special Civil Application No.10056 of 2021, while examining the aforementioned prayer clause, and the order dated 05.11.2015 passed in Special Civil Application No.11016 of 1998, the Coordinate Bench has held thus:

"6.1 Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, the Tribunal has taken into consideration the totality of the circumstances and has found that though the concerned workmen were doing the work of the regular employees, they were illegally discriminated in the payment of wages. It is to be noted that, the activity of the petitioner Board is to conduct the examination of 10th standard and 12th standard. The said exam was conducted at least twice in a year. Now it is even more. These workmen have been doing this work for more than three decades. By this time, it has come on record that, the said activity is conducted only with the hands of these workmen and there is no other supporting staff at the Baroda office of the Board. It is in this back ground that this matter is examined by this Court. Even otherwise, this Court does not find any infirmity either in the reasoning or in the final order recorded by the Tribunal.

6.2 So far the contention of the petitioner that similarly situated persons had approached this Court for regularisation and have effectively not got any relief from this Court is concerned, the same would not take the case of the Board any further for the reason that, the present one is the case where parties have led evidence before the Tribunal and the Tribunal has, on the basis of such material, arrived at a finding in favour of the workmen. Such was not the case which is relied on by the petitioner Board.

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6.3 So far the contention of the petitioner that at the time of initial appointment, due procedure was not followed is concerned, the same needs to be rejected for more than one reasons. Firstly, it is factually incorrect since, there is categorical finding of the Tribunal that the names of the workmen were called for from the Employment Exchange, interview was held and thereafter on being selected the concerned workman was appointed. Thus, this is not the case of back door entry. In this factual back ground, reliance on the decision of Honourable the Supreme Court of India on the decision of Nand Kumar (supra) by the petitioner is of no help to him. Even otherwise, the petitioner employer can not be permitted to advance this argument that it is he who had to something, which he had not and therefore the other side is not entitled to get relief. Reference in this regard can be made to the decision of Honourable the Supreme Court of India in the case of Bhartiya Seva Samaj Trust (supra). This contention therefore is rejected.

6.4 In above back ground, this Court finds that any interference by this Court would only result in miscarriage of justice. For this reason, no interference is required in the award of the Tribunal. However, so far the financial liability of the Board is concerned, the same also needs to be taken care of.

6.5 The contention of the petitioner authority about the huge financial liability needs to be addressed by this Court. True it is that, as the consequence of the impugned award of the Tribunal, arrears is required to be paid to each workman on completion of his 240 days of service, the details of which are mentioned in the table quoted above. This would lead to huge financial liability at this stage. The same needs to be moulded appropriately. Considering the totality, this Court finds that, the impugned award needs to be confirmed on merits but also needs to be modified so far the effective date is concerned. The Reference was made in March, 1989. Therefore, 01.04.1989 can be accepted as the effective date for grant of relief. So far the arrears is concerned, the same can still be weighed in favour of the petitioner authorities so as to make the award affordable to

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them. While doing so, the concession given by the workmen can also be kept in view. In the view of this Court, the Chairman of the petitioner Board may decide the issue of payment of arrears of pay to the workmen flowing from the impugned award and an appropriate order be passed by him within stipulated time in that regard. In the event that dispute is not resolved by the parties amicably, liberty be reserved to revive this petition to that extent.

7. For the reasons recorded above, the following order is passed.

7.1 This petition is partly allowed.

7.2 The impugned award passed by the Tribunal is confirmed to the extent it orders regularisation of service of the workmen, the details of which are given in the table quoted above.

7.3 The impugned award of the Tribunal is modified to the following extent.

7.4 The date of regularisation of service of these workmen shall not be on completion of 240 days of service from their initial date of engagement, as directed by the Tribunal, however it would be from the date of Reference. The Reference is of March, 1989 therefore 01.04.1989 is accepted to be the effective date of regularisation of service qua each workman.

7.5 So far consequential benefits to be granted to the workmen is concerned, the Tribunal has directed it to be with effect from the date of completion of 240 days of service from their initial date of engagement. However this is modified to the following extent.

7.6 From 01.04.1989 to 30.09.1998 (the date of award) it would be notional (i.e. the pay fixation would be notional with effect from 01.04.1989 and no arrears shall be paid till the date of award). The consequential pay fixation shall be made by the petitioner authorities within a period of three months from today.

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7.7 The above pay fixation shall be actually given effect to from the month of December, 2015.

7.8 After the date of award i.e. from 01.10.1998 the workmen are entitled to arrears of pay. The Chairman of the petitioner Board shall decide as to, to what extent the said arrears needs to be reduced. An appropriate order be passed by him, keeping in view all the relevant factors. Such an order be passed within a period of six months from today. It would be open to the workmen to move this Court, even for revival of this petition to that extent, in the event the issue of payment of arrears is not appropriately redressed by the Chairman, as ordered above. It is clarified that, this issue is left at the discretion of the Chairman considering the totality and also after taking into consideration the concession given on behalf of the workmen as recorded in para:4 above and therefore it is further clarified that, in the event the workmen are dragged into further litigation, not only the said concession would not bind them, but the Board shall be under legal obligation to pay arrears from 01.10.1998 as ordered above.

7.9 Rule made absolute to the aforesaid extent. No order as to costs."

4. Thus, against the very same prayer, the Coordinate Bench has already dismissed the writ petition. Hence, the present writ petition is dismissed in view of the order dated 12.10.2021 passed in Special Civil Application No.10056 of 2021. Rule discharged.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA/1