Gujarat High Court
State Of Gujarat vs Gohel Vishal Chhaganbhai on 14 February, 2023
Author: Sonia Gokani
Bench: Sonia Gokani
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
Page 1 of 54
Downloaded on : Mon Feb 20 20:37:03 IST 2023
C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023
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 Page 2 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 3 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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, Page 4 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 5 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 6 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 7 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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;Page 8 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023
C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023
(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 Page 9 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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, Page 10 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 11 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 12 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 13 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 14 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 15 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 16 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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.
Page 17 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023
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 Page 18 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 19 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 20 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 21 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 22 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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. Page 23 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023
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 Page 24 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 25 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 26 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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", Page 27 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 28 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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:
Page 29 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023
C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 "[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 Page 30 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 31 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 32 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 33 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 34 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 35 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 36 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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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C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023
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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C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023
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% Page 39 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 40 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 41 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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. Page 42 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 43 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 44 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 45 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 46 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 47 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 48 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 49 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 50 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 51 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 52 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 53 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023 C/LPA/1159/2017 CAV JUDGMENT DATED: 14/02/2023 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 Page 54 of 54 Downloaded on : Mon Feb 20 20:37:03 IST 2023