Gujarat High Court
State Of Gujarat vs Nilesh Nathubhai Chaudhari on 22 March, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/MCA/719/2024 ORDER DATED: 22/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR REVIEW) NO. 719 of 2024
In R/LETTERS PATENT APPEAL NO. 1305 of 2015
With
R/MISC. CIVIL APPLICATION NO. 720 of 2024
In
R/LETTERS PATENT APPEAL NO. 1355 of 2017
With
R/MISC. CIVIL APPLICATION NO. 721 of 2024
In
R/LETTERS PATENT APPEAL NO. 1159 of 2017
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STATE OF GUJARAT & ORS.
Versus
NILESH NATHUBHAI CHAUDHARI & ORS.
==========================================================
Appearance:
MR. KANVA ANTANI, ASSISTANT GOVERNMENT PLEADER for the
Applicant(s) No. 1,2,3
for the Opponent(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
MR PA JADEJA(3726) for the Opponent(s) No. 10
PRERAK P OZA(8279) for the Opponent(s) No. 1,11,12,13,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 22/03/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 These review applications are filed by the State with a prayer to review / recall the judgement and order dated 14.02.2023 passed by the Division Bench of this Court in Letters Patent Appeal No. 1159 of 2017 and allied appeals.
Page 1 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined 2 Mr.Kanva Antani, learned Assistant Government Pleader, appearing for the State would submit that the respondents are contractual employees / appointees who were seeking minimum of pay-scale to the post of Lecturer with all other allowances. Their appointments stood on a different pedestal and therefore, the Division Bench failed to consider the fact that there was a functional difference in the work of contractual employees and ad-hoc lecturers and therefore the principle of "Equal Pay for Equal Work" would not apply.
The Division Bench erred in holding that the contractual lecturers are to be treated at par with the ad-hoc lecturers.
2.1 Mr.Antani, learned AGP, would submit that the letter of appointment itself would disqualify such appointees from a legitimate expectation of seeking similar pay to that of regular appointees. Having accepted appointments on a fixed pay, they could not be permitted to agitate the issue of pay. The contractual employees Page 2 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined were continued by virtue of interim orders and therefore such "litigious employment" could not render such employees benefit of absorption, permanency, pay-scale etc. 3 Learned counsels appearing for the respective respondents / lecturers would support the order / judgement of the Division Bench. They would also submit that looking at the nature of grounds agitated in the review applications, it is evident that no error apparent has been pointed out and grounds in the review which are grounds akin to re-hearing of the case merit are available only in an appeal and therefore, the State cannot seek a review of the judgement / order under the guise of arguing an appeal.
4 Having heard learned counsels for the respective parties, we are informed that while condoning the delay in these review applications, the then Government Pleader, made a statement that the review is confined to Page 3 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined grant of interest only. The order dated 08.12.2023, read as under:
" The State has filed the present applications seeking to condone the delay, which has taken palce in preferring the Review Applications.
2. In the present judgment, the court directed payment of arrears of wages to the respondent with interest @8%.
3. Learned advocate Mr.Ullas Gohil for the respondent seeks time to file reply to the delay condonation applications.
4. It was stated that proceedings of contempt are pending against judgment and order which is brought under review. The review is confined to the grant of interest, stated learned Government Pleader Ms.Manisha Lavkumar.
5. Since the contempt proceedings are pending and the present review application is also pending, learned advocate for the respondent makes a statement before this court that in the contempt proceedings, the respondent will not press for any interest part of the disputed amount in view of the pendency of this proceedings.
Adjourned."
4.1 However, since Shri K.M.Antani, learned AGP, has argued on merits, we would consider the same too.
5 The Division Bench, while deciding the issues before it found that while examining the issue, the learned Single Judge, following the settled position on concept of Page 4 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined equality before law and doctrine of "Equal Pay for Equal Work", took a pragmatic approach noting 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 a Government Resolution. It would be relevant for us to reproduce paragraph 4 of the order of the Division Bench, which reads as under:
"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 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 Page 5 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined 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 that 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 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 awariting appointment and similarly, in the branch of Electrical Engineering, 36 GPSC are awaiting their appointment."
5.1 Submissions made on the same lines before the Division Bench have been made before us which is evident from reading paragraphs 6 to 10 of the judgement. Analysing the submissions and while reproducing the observations of the order dated 24.01.2018 passed in Letters Patent Appeal No. 1184 of Page 6 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined 2017, the Bench observed that there was no distinctiion between the appointment of an ad-hoc lecturer after May 2008 and prior to May-2008. Based on a factual detailed scenario, the Division Bench in paras 15 to 20, observed as under:
" 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.
2003 GPSC Ad hoc Contract
before
28.05.2008
8000-275- 8000-275- No Contract
135400 +DA 13500 +DA
+HRA +TA +HRA +TA
+MA +CLA +MA +CLA
+PF Vacation
Vacation LTC +Increment
Increment NO PF
2008 GPSC Ad hoc Ad hoc Contract
before after
28.05.200 28.05.200
8 8
8000-275- 8000-275- 8000-275- Rs.25000/-
135400 135400 135400 for
+DA +DA +DA diploma
+HRA +HRA +HRA Rs.30,000/
+TA +MA +TA +MA +TA +MA - or
+CLA +CLA +CLA No Degree
+PF Vacation Increment
Page 7 of 16
Downloaded on : Fri Apr 05 21:27:19 IST 2024
NEUTRAL CITATION
C/MCA/719/2024 ORDER DATED: 22/03/2024
undefined
Vacation +Increme No
LTC nt NO PF Vacation
+Increme +No 6th No LTC
nt +6th Pay No PF
Pay Commissi +6th Pay
Commissi on on Commissi
on on benefit on on
benefits 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 Details in in number numbers s Details Details in % in % Total number of Contractual 2218 100% appointees / candidates appointed with Technical education department after 2008 to till date.
Number of appointees / candidates 1324 60% who were appointed on contractual basis who have resigned and joined service with other department Number of candidates, who cleared 259 12% GPSC Examination during 2010 to 2015 and joined with Technical education department as Lecturer / Assistant Professor as Regular employees.
Number of candidates Terminated 402 18% Page 8 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined due to coming of regular appointees having cleared GPSC Examination Number of contractual appointee in 188 8% service 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 regarding Contractual Lecturer / Assistant Professor of DepartmentDetails of Original Petitioners (Approximate Data) Details Details in in number numbers s Details Details in % in % Total number of Contractual 313 100% appointees / candidates appointed with Technical education department after 2008 to till date.
Number of appointee / candidates 126 40% who were appointed on contractual basis who have resigned and joined service with other department Number of candidates, who cleared 54 17% GPSC Examination during 2010 to 2015 and joined with Technical education department as Lecturer / Assistant Professor as Regular employees.
Page 9 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined Number of candidates Terminated 86 27% due to coming of regular appointees having cleared GPSC Examination Number of contractual appointee in 47 15% service 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 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 Page 10 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined 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 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."
5.2 Based on this, the Court in para 24 observed thus:
"24. The sole factor that requires our determination is, whether the 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 Page 11 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined 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 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 Page 12 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined as it is subjected to the provisions of the constitution and statutes enacted 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 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."
5.3 Reading the final directions at para 26, we find no error to recall the order. Paragraph 26 reads as under:
Page 13 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined "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 state authorities are directed to make such payment preferably within 3 months from the date of receipt of this order."
6 Conscious we are of the limited scope of the review jurisdiction and scope of review. The Hon'ble Supreme Court in the case of Sanjay Kumar Agarwal Vs. State Tax Officer, reported in (2024) 2 SCC 362., has held that the powers of review are extremely limited and under the guise of review the Court cannot be expected to reassess the order.
7 The Apex Court in the case of Sanjay Kumar Agarwal (supra), has considered the scope of review and in para 16 set out the parameters under which a review can or cannot be entertained. Para 16 of the judgment reads as under:
Page 14 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined "16. The gist of the aforestated decision is that:
16.1 A judgement is open to review inter alia if there is a mistake or an error apparent on the face of the record.
16.2 A judgement pronounced by the court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
16.3 An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.
16.4 In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected".
16.5 A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
16.6 Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
16.7 An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
16.8 Even the change in law or subsequent decision / judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review."
8 We, therefore, under the guise of review cannot sit Page 15 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024 NEUTRAL CITATION C/MCA/719/2024 ORDER DATED: 22/03/2024 undefined in appeal over the order / judgement. The review applications are accordingly dismissed.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) BIMAL Page 16 of 16 Downloaded on : Fri Apr 05 21:27:19 IST 2024