Mahavirsinh Narapatsinh Jadeja vs Saurashtra University Through Its ... on 11 January, 2022

[Cites 9, Cited by 2]

Gujarat High Court

Mahavirsinh Narapatsinh Jadeja vs Saurashtra University Through Its ... on 11 January, 2022

Bench: Bhargav D. Karia

     C/SCA/11317/2021                                 JUDGMENT DATED: 11/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 11317 of 2021

FOR APPROVAL AND SIGNATURE:                 Sd./-

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
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 ?

==========================================================
                  MAHAVIRSINH NARAPATSINH JADEJA
                               Versus
            SAURASHTRA UNIVERSITY THROUGH ITS REGISTRAR
==========================================================
Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1
MR BB GOGIA(5851) for the Petitioner(s) No. 1
MS KAJAL L KALWANI(6623) for the Petitioner(s) No. 1
MR AR THACKER(888) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
==========================================================

CORAM:             HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 11/01/2022

                              ORAL JUDGMENT

1. Heard learned Advocate Ms. Kajal L. Kalwani for the petitioner and learned Advocate Mr. A.R. Thacker for Respondent No.1-Saurashtra University. Though served none appears for Respondent Nos. 2 and 3.

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2. Rule. Learned Advocate Mr. Thacker waives service of notice of rule for Respondent No.1- University.

3. Considering that the controversy arising in this petition runs in a narrow compass with the consent of the learned Advocates for the parties this matter is taken-up for hearing and final disposal today.

4. This case has a chequered history as Respondent No.1-University in spite of the passing of the orders by this Court in the year 2019 in Special Civil Application No. 20010 of 2018 has continued not to allow the petitioner to resume duties by taking him back in service.

5. By this petition the petitioner has prayed for following reliefs:

"27. ...

A. YOUR LORDSHIPS may be pleased to admit and allow this petition.

B. YOUR LORDSHIPS may be pleased to quash and set aside the order below dated 15.07.2021 application Exh. 22 in Application No. 65 of 2019 (U) passed by Ld. Gujarat Educational Institution Page 2 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 Services Tribunal, Ahmedabad.

C. YOUR LORDSHIPS may be pleased to hold, declare and direct that the Petitioner is entitled to the interim relief as prayed below Exh. 22 in Application No. 65 of 2019 (U), directing the Respondent University Authorities to reinstate the Petitioner from 02.11.2018 i.e. the date from which the Petitioner was not allowed to work and / or from any other date as Hon'ble Court deems just and proper with full wages, in the circumstances of the case.

D. Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the Respondent University Authorities to reinstate the Petitioner from 02.11.2018 i.e. the date from which the Petitioner was not allowed to work and / or from any other date as Hon'ble Court deems just and proper and in case of default, Respondent Authorities may continue paying the wages to the Petitioner regularly-every month till he is reinstated in service.

E. Pending admission, hearing & final disposal of this petition, YOUR LORDSHIPS Page 3 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 may be pleased to implementation, execution and enforcement of the order dated 15.07.2021 passed by Ld. Tribunal in Application No. 65/2019 (U) and stay further proceedings in the matter.

F. ..."

6. The present Petitioner along with similarly situated employees preferred Special Civil Application No. 10020 of 2018 with a prayer to grant regular pay-scale as prescribed and payable by Respondent No.1-University to its employees for the post which the petitioner was holding with deemed effect by considering the entire service as rendered by the petitioner as regular service for all the purposes including pension and all other consequential benefits.

6.1 The petitioner was a Class-III employee with Respondent No.1-University and was appointed as a Clerk on daily wage basis with effect from 10th May, 1988 and he continued to serve as a daily wager till 8th July, 1995. The petitioner was thereafter released with the written appointment order appointing him on the post of 'Assistant' on fixed pay of Rs.2,000/- per month by order dated 4th September, 1997. According to the petitioner in absence of any recruitment Page 4 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 rules at the relevant point of time the appointment was granted to him by following the procedure of holding personal interview and the petitioner was given the written appointment order on the vacant sanctioned post after being selected in the interview.

6.2 The petitioner along with other similarly situated employees approached this Court for regularization of his service after having served Respondent No.1-University for more than 22 years as he was paid only fixed salary since 1997.

6.3 This Court (Coram: Mr. N.V. Anjaria, J.) passed a common judgment and order dated 7th May, 2019 and disposed of all the petitions filed by the petitioner along with the other similarly situated employees with the following directions;

'11. In view of the foregoing reasons and discussion, all the petitions and the Civil Applications are disposed of in terms of the following observations and directions.

(i) The petitions under Article 226 of the Constitution are not entertained inasmuch as the Court is not persuaded to exercise the writ jurisdiction in wake of availability of alternative statutory remedy under Section 11 of the Gujarat Educational Institutions Services Act, 2006 available to the petitioners before Page 5 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 Gujarat Educational Institutions Services Tribunal;

(ii) The petitioners are relegated to the aforementioned alternative statutory remedy of preferring Applications/Appeals before the Gujarat Educational Institutions Services Tribunal to agitate and claim before the said forum the prayers for equal-pay for equal-work and regularization of the petitioners ;

(iii) The petitioners may file their Applications/ Appeals before the Tribunal within three months from today;

(iv) In the meantime, in view of what is observed and found hereinabove, all the petitioners shall be immediately taken back in service and shall be allowed to work by way of ad-interim relief which shall operate till the Applications/Appeals are placed for the first time before the Tribunal;

(v) At the same time, it would be open for the petitioners to seek the continuation of the interim relief which is granted herein to allow them to continue to work during the pendency of the Applications/Appeals before the Tribunal;

(vi) It would be further open for the petitioners to seek interim prayer before the Tribunal for grant of minimum of the regular pay-scale given to the employees on the similar post;

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(vii) The prayers for interim relief as above which may be made by the petitioners, shall be considered by the Tribunal on the first date when the Applications/Appeals are placed before it to be decided on merits and keeping in view the facts obtained on record;

(viii) The Tribunal shall endeavour to decide the Applications/Appeals of the petitioners within six months;

(ix) This Court has not expressed any opinion on the merits of the case of the petitioners either for the main relief or for interim relief. It is the Tribunal which shall be deciding in accordance with law and on merits;

(x) It is clarified that the above directions, observations and/or pendency of proceedings of Applications/Appeals of the petitioners before the Tribunal as may be preferred, shall not be a precluding aspect for the University to take back the petitioners in service and to address their grievance about the benefit of regularization etc. The present petitions and Civil Applications stand disposed of as above."

6.4 It appears that being aggrieved and dissatisfied with the aforesaid directions the petitioner as well as Respondent No.1-University preferred appeal where Letters Patent Appeal No. 1254 of 2019 filed by Respondent No.1-University Page 7 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 was dismissed by the Division Bench while observing as under:

"1. The appellant-Saurashtra University has filed this appeal only against a portion of the order passed by learned Single Judge by which, the petitioner has been relegated to the alternative remedy of approaching the Gujarat Education Tribunal.

2. Apparently, the appeal has been filed with a view to hound the employee which is evident from the findings of learned Single Judge in paragraph Nos.10.2 to 10.4 of the order which are reproduced hereunder:

"10.2 It could be thus prima facie submitted by learned advocate for the petitioners that dispensing with the services of the petitioners was not only arbitrary but actuated with extraneous considerations and mala fide approach. The University directly or indirectly coerced the petitioners to withdraw the proceedings. The contention of the petitioners that they have been singled out and victimised only because they have approached this Court by filing the present petition, while all other were retained in service, have to be appreciated in light of the above facts and pleadings and the conduct shown from the above dialog in the chamber of the office of the Vice Page 8 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 Chancellor.

10.3 The dialog and the conversation took place on 12th November, 2018. Notice in the petition was issued on 10th July, 2018 and the Civil Applications were filed on 15th November, 2018. Order in Civil Application was passed on 04th December, 2018. Other material developments of syndicate meeting and the rejection of the case of the petitioners took place subsequently. From the chain of time-wise events, the petitioners could create a strong argument that the University has been acting with a malice against the petitioners. The plea of arbitrariness against and victimisation of the petitioners could not be brushed aside lightly in wake of the above facts, events and developments. The petitioners were in service when the petitions were filed and the notice was issued. Thereafter the aforesaid developments took place and the petitioners were disallowed to work by dispensing with their services.

10.4 The total operation of the above facts and circumstances go to show that the petitioners were treated with an eye of victimisation by the University after they filed the petitions. Whatever was the status of their work and in whatever capacity they were working, they could not have been driven away from service. It Page 9 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 clearly appeared that engaging the petitioners in service and driving the petitioners out of service and the incidental and attendant things were all controlled, monitored and actuated by the University. The arbitrariness in dispensing with the services of the petitioners after filing of petitions is manifested from the above circumstances."

3. It is a classic case in which the employee, who though has been relegated has been victimized and as reproduced by learned Single Judge, the transcript of conversation with the Vice Chancellar and the concerned employee of the University showed that he had been victimized and his services were terminated merely because he has approached this Court. In the background of the facts, learned Single Judge while relegating the employee to the Tribunal has directed that the University should reinstate the employee.

4. We are informed by learned advocate for the appellant that employee has not been reinstated. Not complying with the said order and challenging the order suggests the vindictive stand of the University and hence, learned Single Judge has rightly reinstated him and relegated him to the Tribunal.

5. In view of the above, this Letters Patent Appeal is dismissed. The appellant being the center of education and learning is unnecessarily spending the amount of Page 10 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 public exchequer by indulging into litigious perseverance and hence, we are imposing cost of Rs.5,000/- on the appellant. Consequently, Civil Application No.1 of 2019 also stands disposed of."

6.5 Letters Patent Appeal No. 1341 of 2019 and other allied appeals filed by the petitioner and other similarly situated persons were also dismissed by order dated 4th July, 2019 by the Division Bench by holding that no interference is required to be made in exercise of powers under Article 15 of the Letters Patent Act, 1865 in view of the directions given by the learned Single Judge in Special Civil Application No. 10020 of 2018.

6.6 The petitioner thereafter preferred Application No. 65 of 2019 before the Gujarat Educational Institutions Services Tribunal (in short, 'the Tribunal') in view of the order passed by this Court in Special Civil Application No. 10020 of 2018 and the interim relief which was granted by this Court while disposing of Special Civil Application No. 10020 of 2018 was extended by the Tribunal.

6.7 Thereafter the Tribunal vide judgment dated 27th September, 2019 declined to entertain the proceedings initiated by the Page 11 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 petitioner on the ground of non-compliance of the provisions of Section 11 and Section 11-A of the Gujarat Educational Institutions Services Tribunal Act, 2006 (hereinafter, 'Act of 2006') which provides for preferring an application by an employee aggrieved by the order or decision of an educational institution in relation to the services of such an employee. As per Sections 11 of the Act of 2006 Section 11-A prohibits the Tribunal from entertaining any application unless the application referred to in Section 11 is preferred by the concerned employee of an educational institution.

6.8 In the meantime the petitioner also preferred Special Civil Application No. 21449 of 2019 as the petitioner was terminated from service by the outsourcing agency though the protection was granted by this Court by way of ad-interim-relief where this Court (Coram: Mr. G.R. Udhwani, J.) by order dated 29th June, 2019 again relegated the petitioner to the Tribunal in view of the order passed by this Court in Special Civil Application No. 10020 of 2018.

6.9 It appears that the petitioner had also preferred Misc. Civil Application No. 1 of 2019 under the provisions of the Contempt of Courts Act, 1971 for non-compliance of the Page 12 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 directions issued by this Court in Special Civil Application No. 10020 of 2018.

6.10 After the order was passed by the Division Bench of this Court the Tribunal decided Application Nos. 63 to 67 of 2019 including Application No. 65 of 2019 filed by the petitioner vide order dated 27th September, 2019 rejecting the said Applications in view of the provisions of Sections 11 and 11-A of the Act of 2006 and permitted the applicants to approach the Tribunal again after making a representation before Respondent No.1-University. The Tribunal also disposed of the interim applications filed by the petitioner.

6.11 Being aggrieved by the order dated 29th June, 2019 passed in Special Civil Application No. 21449 of 2019 the petitioner preferred Letters Patent Appeal No. 337 of 2020 where the Division Bench of this Court (Mr. Vikram Nath, C.J. as his Lordship then was, Mr. J.B. Pardiwala, J.) by order dated 28th July, 2020, after considering the order passed in Special Civil Application No. 10020 of 2018 and Letters Patent Appeal Nos. 1254 of 2019 and 1343 of 2019 as well as the order dated 18 th June, 2019 passed in Misc. Civil Application (Contempt) No. 534 of 2019 and also considering the submissions Page 13 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 made by the learned Advocates on both the sides, observed as under:

"34. If the learned Single Judge declined to entertain the writ application on the ground of alternative efficacious remedy of appeal being available to the writ applicant, then, in such circumstances, it cannot be said that the learned Single Judge committed a jurisdictional error resulting into a serious miscarriage of justice, warranting interference at the end of the appeal Court. In other words, the judgment and order of the learned Single Judge does not suffer from any such palpable infirmity of reasoning or perversity which would warrant interference in an intra-Court Appeal.

35. While dealing with the present appeal, one has to bear in mind that a intra-Court appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one coordinate Bench to another Coordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, a intra Court appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined afresh by Page 14 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 the appellate Court, what is really examined, in a intra-Court appeal, is the legality and validity of the Judgment and/ or order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the single Judge, which should, normally, be allowed to prevail. Hence, the impugned judgment of the learned Single Judge should not be completely ignored and this Court has to consider the judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail.

36. In the overall view of the matter, we are convinced that the learned Single Judge committed no error much less an error of law in passing the impugned order.

37. In our opinion, this appeal deserves to be dismissed, and is, accordingly, dismissed."

6.12 The petitioner being aggrieved by the Page 15 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 aforesaid order passed in Letters Patent Appeal No. 337 of 2020 preferred Special Leave Petition before the Supreme Court which was thereafter admitted as Civil Appeal No. 91 of 2021.

6.13 The Apex Court by order dated 12th January, 2021 disposed of the Appeals by observing as under:

"Leave granted.

We have heard learned counsel for parties. Learned counsel for the respondent(s) has drawn our attention to page 133 where a copy of the representation made by the appellant has been annexed as Annexure D. It is her submission that in view of this representation, the mandate of making representation before approaching the Tribunal has been complied with.

We also find from the orders recorded from time to time that the case of the appellant has been on in one forum or the other for the last two years and was finally relegated to filing of an appeal under Section 11 of the Gujarat Educational Institutions Services Tribunal Act, 2006. We are thus, of the view that it is in the fitness of things where the Tribunal examines the case on merits rather than directing the appellant to make representation and thereafter again approach the Tribunal.

We thus, set aside the operative para of Page 16 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 the impugned order as well the order dated 27th September, 2019 passed by Tribunal with a direction to the Tribunal to examine the case of the appellant on merits and considering the time period which has already gone by, the matter may be taken up as expeditiously as possible. This would as a sequitur also give option to move for any interim relief in those proceedings which may be examined by the Tribunal.

The appeal stands disposed of."

6.14 Pursuant to the aforesaid order as Application No. 65 of 2019 was revived the petitioner preferred an application below Exhibit-22 in the said application with the prayer to grant interim relief during the pendency of Application No. 65 of 2019.

6.15 The Tribunal after considering the submissions made on behalf of the applicant as well as Respondent No.1-University passed the impugned order dated 15th July, 2021 and rejected the application for stay filed below Exhibit-22 in Application No. 65 of 2019 filed by the petitioner and further directed to hear the Application No. 65 of 2019 at least thrice a week so as to enable its speedy hearing and disposal.

6.16 Being aggrieved by the order dated 15 th Page 17 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 July, 2021 passed below Exhibit-22 in Application No. 65 of 2019 the petitioner has filed the present petition with the prayers as referred to herein above.

6.17 This Court (Coram: Mr. N.V. Anjaria, J.) passed following order on 9th August, 2021:

"The cause-title of this writ petition mentions thus, "(i) Under Article 226 - 227 read with Article 14 , 16 and 21 of the Constitution of India

(ii) In the matter challenging the legality and validity of the order dated 15.07.2021 below Exh.22 in Application No.65 of 2019 (U) for the interim relief passed by Gujarat Educational Institutions Services Tribunal, Ahmedabad"

2. The prayers read as under.

(i) set aside the order below dated 15.07.2021 application Exh.22 in Application No.65 of 2019 (U) passed by Ld. Gujarat Educational Institutions Services Tribunal, Ahmedabad;

(ii) hold, declare and direct that the Petitioner is entitled to the interim relief as prayed below Exh. 22 Application in Application No.65 of 2019 (U), directing the Respondent Page 18 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 University Authorities to reinstate the Petitioner from the 02.11.2018 i.e. the date from which the Petitioner was not allowed to work and/or from any other date.

3. From the above, the petition evidently appears to be in the realm of service law. The orders passed by the Gujarat Educational Institutions Services Tribunal, Ahmedabad are under challenge. Registry shall place the petition before the appropriate Court as per the roaster. Registry shall be careful in the future as apparently the services matters are classified in a different way."

6.18 Thereafter, following order was passed on 26th August, 2021:

"Heard learned advocate Ms.Muskan Gogia with learned advocate Mr.Anand Gogia for the petitioner and learned Assistant Government Pleader Mr.Kurven Desai for the respondent-State.

Issue Notice, returnable on 27th September, 2021. By way of ad-interim- relief, further proceedings of Application No.65 of 2019 is stayed till further orders."

7. Learned Advocate Ms. Kalwani appearing for the petitioner submitted that the Supreme Court by order dated 12th January, 2021 passed in Civil Appeal No. 91 of 2021 was pleased to set aside Page 19 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 the operative portion of the order of the Division Bench of this Court as well as the order dated 27th September, 2019 passed by the Tribunal and the Tribunal was directed to examine the case of the petitioner on merits. It was further submitted that the Tribunal was required to consider the case of the petitioner on merits without insisting for compliance of Sections 11 and 11-A of the Act of 2006.

7.1 It was also pointed out that the directions given by this Court while relegating the petitioner to the Tribunal in Special Civil Application No. 10020 of 2018 to continue the petitioner in service as affirmed by the Division Bench in Letters Patent Appeal No. 1254 of 2019 which has attained the finality and therefore the Tribunal ought to have allowed the application for stay during the pendency of Application No. 65 of 2019.

7.2 It was submitted by learned Advocate Ms. Kalwani that the Tribunal has misdirected itself by not considering the orders passed by this Court so far as the interim relief is concerned and thereby has committed an error by not following the order of the superior Courts.

7.3 It was pointed out from the impugned Page 20 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 order passed by the Tribunal that the Tribunal has also committed an error by observing that the order dated 27th September, 2019 was not challenged before any superior Court in spite of the fact that the Supreme Court has set aside the aforesaid order of the Tribunal and has restored the matter back to the Tribunal while disposing of Civil Appeal No. 91 of 2021.

7.4 It was further submitted that while relegating the petitioner to the Tribunal by order dated 7th May, 2019, the learned Single Judge of this Court after considering the facts as well as the submissions advanced by both the sides observed that the petitioner shall be immediately taken back in service and would be allowed to work by way of ad-interim-relief. Meaning thereby the Tribunal ought to have considered the case of the petitioner in the light of the observations made by this Court in the order dated Misc. Civil Application No. 1 of 2019 under the provisions of the Contempt of Courts order by considering the application for stay filed by the petitioner.

7.5 It was also pointed out by the learned Advocate Ms. Kalwani that this Court has not expressed any opinion on merits of the case as well as for interim relief and therefore the Page 21 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 Tribunal ought to have considered the observations made in the order dated 7th May, 2019 so as to consider the case of the petitioner to grant interim stay which was continued by the Tribunal till the order dated 27th September, 2019 was passed. Therefore when the Supreme Court restored the matter back to the Tribunal by setting aside the order dated 27th September, 2019 the interim order which was in operation till 27th September, 2019 ought to have been continued by the Tribunal and the Tribunal could not have substituted its own reasoning as given in the impugned order.

7.6 It was further submitted that the petitioner is out of service since 2018 when he was illegally terminated by the outsourcing agency as the petitioner had preferred Special Civil Application No. 10020 of 2018 which was considered by this Court while relegating the petitioner to the Tribunal vide order dated 7th May, 2019.

7.7 It was pointed out that in Paragraph- 16 of the impugned order that the Tribunal has referred to the decision of this Court in Special Civil Application No. 10020 of 2018 and has an audacity to observe that as the petitioner was never reinstated in service pursuant to the order Page 22 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 passed by this Court right upto the Apex Court and no Court has directed Respondent No.1- University to reinstate the petitioner in the post 27th September, 2019 period and therefore the petitioner cannot be granted interim relief during the pendency of Application No. 65 of 2019 before the Tribunal. It was therefore submitted that as the petitioner has approached the Tribunal as directed by the Supreme Court by preferring the application for interim relief the Tribunal ought to have considered the case of the petitioner as it was existing on 27th September, 2019 and the subsequent events could not have been taken into consideration for rejection of the application for stay preferred by the petitioner. It was submitted that the Tribunal has therefore committed a grave error by not granting interim relief in favour of the petitioner in utter disregard of the observations made by this Court in the judgment and order dated 7th May, 2019.

8. On the other hand learned Advocate Mr. Thacker appearing for Respondent No.1-University submitted that the Tribunal has considered the interregnum period spent by the petitioner consumed in the litigation and therefore it has rightly not granted interim stay in favour of the petitioner and instead has issued directions to Page 23 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 hear the main matter expeditiously.

8.1 It was further submitted that the Tribunal has considered in detail the aspect of granting interim relief as the petitioner could not have challenged the order dated 27th September, 2019 before any superior Court and therefore there is no question of continuing which was in operation till 27th September, 2019. It was pointed out that the petitioner was never taken-up in service as the services of the petitioner were terminated by the outsourcing agency which is not a party in any of the proceedings and therefore Respondent No.1- University cannot take-back the petitioner in service.

8.2 It was submitted that when this petition is filed under Article 227 of the Constitution of India against an interim order and therefore the same is not required to be entertained.

8.3 It was submitted that the petitioner has not been able to point out any jurisdictional error committed by the Tribunal in exercise of its powers and decided the claim application and the Tribunal has considered in detail the submissions made by both the sides.

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C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 8.4 It was submitted that this Court while issuing the directions in Special Civil Application No. 10020 of 2018 it is made clear in Paragraph-18(ix) that this Court has not given any opinion on the merits of the case either for granting the main relief or the interim relief and therefore the Tribunal has considered the case of the Petitioner independently as it existed on the date of the decision in the month of July, 2021.

8.5 He also referred to the observations made by the Tribunal to point out that the petitioner has failed to make out any case for interim relief after being out of service for more than three years and therefore the Tribunal instead of directing Respondent No.1-University to take-back the petitioner in service during the pendency of the application which was restored by the Apex Court, has rightly not granted any interim relief and has directed to hear the main application on merits expeditiously.

8.6 It was further submitted that Respondent No.1-University is also ready and willing to proceed with the hearing of the main application on merits on day-to-day basis and therefore this Court may issue necessary Page 25 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 directions to the Tribunal in this regard instead of interfering at this stage by directing Respondent No.1-University to take-back the petitioner in service during the pendency of Application No. 65 of 2019 before the Tribunal.

8.7 In support of his submissions learned Advocate Mr. Thacker has relied on the following averments made in the affidavit in reply filed on behalf of Respondent No.1-University;

"21. I submit that in the year 1997 petitioner has submitted undertaking before the University. The said undertaking is binding upon the petitioner. Petitioner has not annexed the said undertaking to the petition. I submit that on behalf of University the undertaking was placed on record of the Tribunal. Petitioner has not disclosed regarding above undertaking. Therefore petitioner has suppressed material facts before Hon'ble Tribunal and therefore, the application filed by the applicant was required to be rejected. I submit that the Said fact was also not disclosed before the Hon'ble High Court and University pointed out said fact in the affidavit in reply before the Hon'ble High Court in- spite thereof the petitioner has suppressed the said fact again and did not disclose it before the Hon'ble Tribunal, annexed hereto and marked as "Annex re-R2"

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C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 is the copy of the undertaking filed by the petitioner.

22. I say that the undertaking the petitioner herein has given specific undertaking that he will not file any claim against the University on the basis of the said ad-hoc appointment. University submits that in the said undertaking the applicant herein has specifically said that if he does not get selected in the subsequent recruitment process then also he will not claim any regularization on the said ad-hoc appointment. University submits that by virtue of the undertaking it is clear that the applicant is appointed as ad-hoc basis 'without any selection Procedure. University submits that as per the averment in para-3.5 the main application at page 68 herein in year 2011 appeared in the Selection process. University submits that the result of selection Process of the year 2011 is already declared and the applicant is not Selected which applicant Is very well aware and therefore, the §pplicant has no right to claim any benefit. University submits that by Virtue of the undertaking the applicant is estoppel from filing the main application and the present petition is required to be dismissed.

23. I submit that in the undertaking the petitioner herein has given Specific undertaking that he will not file any claim against the University on the basis of the said ad-hoc appointment. I submit Page 27 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 that that in the said undertaking the petitioner herein has specifically said that if he does not get selected in the subsequent recruitment process then also he will not claim any regularization on the said ad-hoc appointment. I submit that by virtue of the undertaking it is clear that the petitioner is appointed as ad-hoc basis without any selection procedure. I submit that the petitioner herein in the year 2011 appeared in the selection process. I submit that the result of selection process of the year 2011 is already declared and the petitioner is no selected which the petitioner is very well aware and therefore, the petitioner has no right to claim any benefit. I submit that by virtue of the undertaking the petitioner is estopped from filing the application for stay.

24. I submit that the petitioner was given work on daily wager contractual employee without following the procedure of regular appointment on the basis of petitioner's application and from time to time his remuneration was increased. I submit that the petitioner has never worked on the sanctioned post of the University and from 16.5.2018 as manpower of the Outscoring agency, which is admitted by the petitioner in his representation dated 21.5.2018 which is subject matter of the main application therefore, petitioner has no right to claim any regularization of service in University. I submit that the petitioner was illegally appointed (back door entry) in the University and not on Sanctioned post of University. I say that Page 28 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 petitioner herein in the year 2011 applied and appeared for the interview pursuant to the advertisement and was not selected. I submit that till year 2011 the Petitioner was very well aware that he is not permanent employee of the University and therefore he applied and now is claiming to be regular employee who is not permissible. I submit that the petitioner has not worked with University since May 2018 and therefore, petitioner is not entitled for any relief.

25. Referring to para-15 wherein the petitioner has highlighted the grounds regarding the conduct of authorities of Respondent University. I say that the petitioner has to succeed on his case and not on the regarding the conduct of authorities of Respondent University, conduct of the University. The petitioner has no case for any reliefs and therefore the Hon'ble High Court and Hon'ble Supreme Court have not granted any reliefs and Hon'ble Tribunal has considered the case on merits and is willingly to dispose the main matter itself as per the directions of the Hon'ble Supreme Court but the petitioner herein himself has obtained stay of proceeding which show his conduct and is Not entitled for any reliefs. Regarding the contentions raised in the Petition regarding appointment of Mr. Jayesh Khakhar by the Sutsourcing agency, the Hon'ble Tribunal at the time of hearing of the application asked the petitioner Page 29 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 advocate to make application to the Cutsourcing agency but the petitioner is not willing to do so was informed to the Hon'ble Tribunal. I say that when Mr. Jayesh Khakhar made application to the outsourcing agency at page 342 the University has not restrained the outsourcing agency from taking him back.

26. I say and submit that petitioner has in the Memo of Petition not Stated as to how the order passed by the Hon'ble Tribunal is dehorse the jurisdiction or there is any error committed by the Hon'ble Tribunal. The Petitioner has in the grounds not stated anything as to how and Why the order passed by the Hon'ble Tribunal requires to be set aside/interference by this Hon'ble Court.

27. I say and submit that petitioner has only relied upon order passed in the earlier round of litigation wherein it is specifically provided that the Hon'ble Tribunal will decide the matter on merits independently without considering the said observations. The petitioner has claimed the mandatory injunction before the Hon'ble Tribunal at an interim stage and that too retrospectively as observed by the Hon'ble Tribunal which is legal and proper. The petitioner herein has never challenged the order dated 27.9.2019 of the Hon'ble Tribunal and now is seeking restoration of the same which is not Permissible. It is submitted that in the second round of litigation, after the Page 30 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 order of the Hon'ble Tribunal dated 27.9.2019, Learned Single Judge, Division Bench of the Hon'ble High Court and Hon'ble Suprema Court had directed the petitioner to move the application for interim relief but did not grant any interim relief. It is submitted that when the Hon'ble Apex Court has not granted any interim relief and the Tribunal by reasoned order has rejected the application for interim relief and Hon'ble Apex Court has not granted any interim relief and the Tribunal . by reasoned order has rejected the application for interim relief and expedited the matter considering the directions of the Hon'ble Apex Court, the petitioner has after the Hon'ble Tribunal rejected the application for stay, after 15.7.2021 on more than 5 occasions sought time and did not want to proceed with the main matter. If the petitioner has any case then he would be desirous and eager to proceed with the main matter immediately and not seek adjournment before the Hon'ble Tribunal. | say that petitioner has no prima facie case for grant of interim relief and therefore the Hon'ble Tribunal has rightly rejected his application.

28. I say and submit that the petitioner has relied upon and produced at Annexure-K resolutions of the Syndicate which were never sot before the Hon'ble Tribunal and not part of the record of the Tribunal and therefore the same cannot be looked into Page 31 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 and cannot be relied upon by the petitioner in this petition.

29. I submit that grant of interim relief when the matter is at large before the Hon'ble Tribunal would amount to allowing the main application pending before the Hon'ble Tribunal considering the said facts and Judgments relied upon by the Advocate for the respondent before the Tribunal, the Hon'ble Tribunal has rightly not granted interim relief to the petitioner and the petition therefore deserves to be dismissed."

8.8 Referring to the above averments it was submitted that the Tribunal has rightly rejected the application for stay preferred by the petitioner considering the fact that instead of allowing the petitioner to resume duty with Respondent No.1-University, it would be better to hear the petitioner on merits as granting of such a relief during the pendency of the main application would amount to granting the reliefs sought in this petition at the interim stage.

9. Having heard the learned Advocates for the parties and having perused the material on record as well as the orders passed by the Hon'ble Apex Court as well as in this Court, it is apparent that this Court while relegating the petitioner to the Tribunal instead of exercising powers Page 32 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 under Article 226 of the Constitution of India as granted ad-interim-relief by directing Respondent No.1-University to take back the petitioner in service after considering the facts emerging from the record as and recorded in the order dated 7 th May, 2019 in Special Civil Application No. 10020 of 2018 and the cognate matters as under:

"7. Noticeably, following further allegations and revelations were made in the Civil Applications.

"... because the petitioner has filed SCA for the relief(s) as claimed therein in the petition, she / he is not allowed to enter in the office and is not allowed to work by the University Authority(ies) and is being harassed and is mentally pressurized to withdraw the petition. By this Respondent(s) Authority(ies) are giving message to its all employees to refrain from approaching Hon'ble High Court in relation to their any grievances. The Applicant(s) here with annexes the script of recording by the News Reporter Shri Kevalbhai Dave of Nav Gujarat on 12.11.2018...."

7.1 It was further stated, "... in the said script there is voice of Vice Chancellor and of Shri Bhavin Kothari syndicate member on Page 33 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 behalf of the University. From the said script, it shall appear that the Respondent(s) University Authority(ies) have taken coercive steps of not allowing the Applicant9s) to enter into office and to do his regular work. The Applicant(s) has obtained CD of the above said recording from the said News Reporter and shall produce before this Hon'ble Court as and when directed...."

7.2 The script in conversation in Gujarati language stated to have taken place between high office bearers of the University and a press reporter in which the issue of termination of the petitioners was talked about, which is made part of the pleadings in the rejoinder affidavit at Annexure-L. The same is reproduced verbatim in the same language hereinbelow.

S]],5lTzLGL VMlO;DF\ YI[, ;\JFNGL RRF" GJ U]HZFT ;DI gI]h lZ5M8"Z S[J,EF. NJ[P !Zv!!vZ_!( !Zo## 5LPV[DP ZL5M8"Z o CF.SM8" DF\ UIF K[ V[8,[ VF56[ ZLD]J SIF"

K[P JLP;LPsS],5lTf o V[8,F DF8[H SIF" K[P EFJLG SM9FZL o SFIDL Y. HFI TM T[ A[S 0MZ V[g8=L Y. HFI VDFZL l5|SMXG ,[JF 50[ G[P ZL5M8"Z o T[ CF.SM8"DF\ UIF K[4 CH] T[DG]\ S\. VFjI]\ GYLP EFJLG SM9FZL o V[8,F DF8[ H SIF" VG[ VD[ ZFC G HM.V[P S],5lT o VDG[ BAZ GYL V[RPVMP0LPG[ BAZ GYLP Page 34 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 EFJLG SM9FZL o VDFZ[ XF;S TZLS[ SZJ]\ H 50[P ZL5M8"Z o DCFJLZl;\C AMIh CM:8[,DF\ OLS; 5[ DF\ ¸ ZZ JQF"YL K[P EFJLG SM9FZL o SFIDL HJF DF8[ CF.SM8"DF\ HFI TM VDFZ[ l5| SMXGZL 5U,F ,[JF TM 50[ G[ ZL5M8"Z o H[ SD"RFZL CF.SM8"DF\ HFI T[G[ ZLD]J SZX[P EFJLG SM9FZL o VF TM DFJFvD,FI K[ ;ZSFZLDF\ ZL5M8"Z o V[Hg;L C[9/G]\ 0L;LhG YI]\ m EFJLG SM9FZL o V[ CH] l;g0LS[8DF\ 5[g0L\U K[P ZL5M8"Z o V[Hg;L C[9/ D]SJF T[ G SZJ]\ HM.V[ EFJLG SM9FZL o V[DF\ S. OS" 50TM GYL HM C]\ TDG[ S. Np lG6"I 5[g0L\U K[ SFIDL G YFI4 VF A[ H6F SIFZ[I4 ALHF Z_ H6 G SZ[ m VNF6L4 ZL,FIg; S[ SM. SM5MZ[8 CF.SM8"DF\ HJFGM 5| ItG SZ[ K[ T[GL ;FD[ S\5GL ,F, VF\B SZ[ H K[P D[C], ~5F6L o ;\:YFGL ;FD[ SM8"DF\ YJ]\ V[8,[ ;\:YF SF\.S EFJLG SM9FZL o V[ V[DGL DM8L E], K[P D[C], ~5F6L o SM8" lG6"I SZ[ SFIDL SZM4 T[ VFN[X SZ[ T[ l;:8D GF SZ[ l;:8D ;FD[ 50M TM V[DG[ ZF.8; H GYLP ZL5M8"Z o VF DF\ S. Z:TM SZFI EFJLG SM9FZL o CF.SM8"DF\ 5FKM B[R[ lJGF XZTL EFJLG SM9FZL o !_! @ VDFZM jIlSTUT lG6"I K[ S],5lT o OZL SM8"DF\ HFIP 8[,LOMGLS JFTlRT K]8F SZJF AFAT !&v!!vZ_!( C[0zL lDlCZ ZFJ, OFD";L EJG _5o!$ 5LPV[DP lDlCZ o DG[ CD6F B[Z ;FC[AGM OMG VFjIM CTMP B[Z ;FC[A V[8,[ ZHL:8=FZ S[ JLP;LP CMI T[G ;]RGF D/[, K[ S[ VD[ VDFZF TZOYL HF6 SZ[, K[ S[ TD[ V[DG[ I]lGJl;"8LDF\YL K]8F SZ[, K[P CJ[ T[DG[ Sg8LgI] ZFBM KM TM ElJQIDF\ TDFZ[ HJFA N[JF 50X[P VtIFZ[ H[ 0L;LhG VFJ[ TM 5KL HM.g8 YFI 56 T[G[ VtIFZ[ TFtSFl,S V;ZYL K]8F SZJF V[DG[ VtIFZ[ DG[ ;]RGF VF5L S[ K]8F SZL N[JF DG[ VM0"Z VF5JM S[ ZHL:8=FZ DFZF ;FC[A K[ TM DFZ[ SZJ]\ 50[ ;]RGF VF5[, S[ 5KL HJFANFZL TDFZL ZC[X[P Page 35 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 7.3 The petitioners have annexed copy of Minutes of Syndicate Meeting held on 25th June, 2018 along with rejoinder affidavit. Out of the total vacancies, at the best, only 30 vacancies are filled up by outsourcing. 412 employees are placed to work on contract basis. It is averred that no Resolutions were passed to give contract or to enter into agreement in relation to the recruitment by outsourcing agency. It was thus, stated by the petitioners that the University has been conducting its affairs in most arbitrary manner in picking, choosing and driving away the petitioners at its sweet will.

8. The above facts, circumstances and events project the total scenario in the controversy.

9. Now, at this stage, going back to the core controversy in the main petition. Therein the petitioners' claim is for equal-pay for equal-work and for regularization of their services. On the other hand, a defence is sought to be raised by the University that the petitioners were engaged through a method of outsourcing and that they were not the employees of the University. The petitioners' claim that they have been performing similar nature of duties as attached to the regular post, therefore according to their case, they are entitled to the same pay-scale. The above and the other questions arising in the compass of the controversy are essentially the Page 36 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 question of fact. Whether an employee is entitled to equal pay on the ground that his working is equal in kind and nature to other employee, is always a factual aspect to be established by leading evidence. It would require comparison of nature of duties of both the posts, degree of responsibility attached to the post, the qualification to man the post, the powers of working connected with the post etc would be amongst the relevant consideration to decide whether an employee is entitled to equal pay.

9.1 All the above issues would need leading of evidence. It is only by means of adducing evidence that the question of above nature could be adjudicated. It is true that the Supreme Court has in its above-referred decisions directed that if the temporary employees are found to have been discharging similar nature of duties as compared to the employees working on the regular post, such employees would be entitled to be paid the minimum of the pay-scale of the regular employee.

9.2 While this court is not inclined to entertain the writ jurisdiction in view of the above aspects and considerations, there is further reason that the present petition is not being entertained. The petitioners have got alternative statutory remedy of approaching the Gujarat Educational Institutions Service Tribunal under the Gujarat Educational Institutions Services Act, 2006. Section 11 of the said Act provides that an employee aggrieved by Page 37 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 an original order or appellate order or the decision of the educational institution which is connected with the conditions of service of such employee or the educational institution, may, within the specified time, prefer appeal before the Tribunal. The Tribunal would be the forum where the petitioners would be able to lead evidence and thereby their case. Thus, when the statutory alternative efficacious remedy is available to the petitioners and the nature of the claim of the petitioners is such that it would require leading of evidence, the petitioners' case could not be considered for final relief of granting them the equal-pay for equal-work or the benefit of regularization by exercising the writ powers.

9.3 Pausing at this stage, it may be mentioned that the following observations of the Supreme Court in Sabha Shanker Dube (supra) could be noticed.

"9. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, this Court in Jagjit Singh (supra) held as follows:

"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, Page 38 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self- respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position.

                     Undoubtedly,      the    action      is
                     oppressive,       suppressive       and

coercive, as it compels involuntary subjugation."

10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the Page 39 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 regular employees holding the same post.

11. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay sales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service."

10. Even though for the aforesaid reason of availability of alternative statutory remedy, the petitioners are not entitled to relief as finally claimed in the petition, the startling revelations in the pleadings of Civil Application became suggestive of the fact that the petitioners were victimised so as to drive them away from services. The conversation in Gujarati as above, recorded between the press reporter and the functionaries of the University including the Vice Chancellor of the University, had, at least, prima facie given out and establish the approach and treatment which the University meted out to the petitioners.

Page 40 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022

C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 10.1 It could be readily gathered from the text of the conversation above that answering the questions of reporter, the Vice Chancellor audaciously says that the petitioners are removed because they had gone to the Court. The answers by the Vice Chancellor and the University authorities in conversation amongst other facts, mentioned that some way would be found if the matters are withdrawn from the High Court. In the above conversation, the arbitrary approach on part of the University authorities is clearly discernible. What is manifested is that, the person like Vice Chancellor of the University holding such high office, is shown to be treating the courts, the proceedings before the court and the court's order in a very low esteem to develop the attitude of no care to the court and the proceedings of the court. Such stance is highly deprecable.

10.2 It could be thus prima facie submitted by learned advocate for the petitioners that dispensing with the services of the petitioners was not only arbitrary but actuated with extraneous considerations and mala fide approach. The University directly or indirectly coerced the petitioners to withdraw the proceedings. The contention of the petitioners that they have been singled out and victimised only because they have approached this Court by filing the present petition, while all other were retained in service, have to be Page 41 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 appreciated in light of the above facts and pleadings and the conduct shown from the above dialog in the chamber of the office of the Vice Chancellor.

10.3 The dialog and the conversation took place on 12th November, 2018. Notice in the petition was issued on 10th July, 2018 and the Civil Applications were filed on 15th November, 2018. Order in Civil Application was passed on 04th December, 2018. Other material developments of syndicate meeting and the rejection of the case of the petitioners took place subsequently. From the chain of time-wise events, the petitioners could create a strong argument that the University has been acting with a malice against the petitioners. The plea of arbitrariness against and victimisation of the petitioners could not be brushed aside lightly in wake of the above facts, events and developments. The petitioners were in service when the petitions were filed and the notice was issued.

Thereafter the aforesaid developments took place and the petitioners were disallowed to work by dispensing with their services.

10.4 The total operation of the above facts and circumstances go to show that the petitioners were treated with an eye of victimisation by the University after they filed the petitions. Whatever was the status of their work and in whatever capacity they were working, they could not have been driven away from service.

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C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 It clearly appeared that engaging the petitioners in service and driving the petitioners out of service and the incidental and attendant things were all controlled, monitored and actuated by the University. The arbitrariness in dispensing with the services of the petitioners after filing of petitions is manifested from the above circumstances.

11. In view of the foregoing reasons and discussion, all the petitions and the Civil Applications are disposed of in terms of the following observations and directions.

(i) The petitions under Article 226 of the Constitution are not entertained inasmuch as the Court is not persuaded to exercise the writ jurisdiction in wake of availability of alternative statutory remedy under Section 11 of the Gujarat Educational Institutions Services Act, 2006 available to the petitioners before Gujarat Educational Institutions Services Tribunal;

(ii) The petitioners are relegated to the aforementioned alternative statutory remedy of preferring Applications/Appeals before the Gujarat Educational Institutions Services Tribunal to agitate and claim before the said forum the prayers for equal-pay for equal-work and regularization of the Page 43 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 petitioners ;

(iii) The petitioners may file their Applications/ Appeals before the Tribunal within three months from today;

(iv) In the meantime, in view of what is observed and found hereinabove, all the petitioners shall be immediately taken back in service and shall be allowed to work by way of ad-interim relief which shall operate till the Applications/ Appeals are placed for the first time before the Tribunal;

(v) At the same time, it would be open for the petitioners to seek the continuation of the interim relief which is granted herein to allow them to continue to work during the pendency of the Applications/Appeals before the Tribunal;

(vi) It would be further open for the petitioners to seek interim prayer before the Tribunal for grant of minimum of the regular pay-scale given to the employees on the similar post;

(viii) The Tribunal shall endeavour to decide the Applications/Appeals of the petitioners within six months;

10. The aforesaid observations made and the findings arrived by this Court while relegating the petitioner to the Tribunal are never controverted or disputed before any forum. The Page 45 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 Division Bench of this Court while disposing of Letters Patent Appeal No. 1254 of 2019 has also levied the costs of Rs.5,000/- on Respondent No.1-University and has observed that by not complying with the order of this Court and challenging the same suggests vindictive stand on the part of Respondent No.1-University.

11. The Tribunal ignoring the above observations as well as the facts which are not in dispute with regard to the vindictive stand of Respondent No.1-University has passed the impugned order only by relying on the subsequent events after the order dated 27th September, 2019 passed by it which is set aside by the Supreme Court vide order dated 12th January, 2021 in Civil Appeal No. 91 of 2021.

12. It is a trite law that once the Supreme Court has set aside the order passed by a forum then the proceedings would start as if no such order ever existed. Considering the observations made by the Tribunal that its order dated 27th September, 2019 was never challenged by the petitioner before any superior Court is contrary to the order of the Supreme Court.

13. The Supreme Court while setting aside the order dated 27th September, 2019 has also Page 46 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 permitted the petitioner to move for interim relief as sequitur and therefore the Tribunal ought to have considered the case of the petitioner for grant of stay without being influenced or carried away by the submissions made on behalf of Respondent No.1-University as well as the period which has lapsed as the petitioner has not been reinstated in service inspite of the fact that the order dated 7th May, 2019 passed by this court in Special Civil Application No.10020 of 2018 was never stayed by any higher forum and instead of directing the Respondent No.1-University to comply with the said order, the Tribunal vide impugned order has given the confirmation to the action of Respondent No.1-University for not implementing the order of this Court. The relevant observations made by the Tribunal in the impugned order dated 15th July, 2021 read as under;

"13. Since more than 2.1/2 years have elapsed since the applicant has not been reinstated , there is no question of grant of mandatory injunction directing reinstatement of the applicant with retrospective effect from 27.9.2019 or any other date including 2.11.2018 as prayed. In fact, in our opinion, it would be more prudent on the part of the applicant to establish his entitlement to the reliefs that he seeks in the application at its final stage, then all the questions Page 47 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 including regularization of services and reinstatement with back wages would naturally be considered after duly appreciating the evidence on record and not at this prima-facie juncture. We are aware of the urgency of the situation and, therefore, we do appreciate and recognize the need for the earliest possible disposal of the application in its entirety whereby all the questions raised would be effectively answered after giving reasonable opportunity to both sides to present evidence, offer themselves for cross examination and enable us to effectively decide all the questions in controversy which exist between the parties herein. In our opinion, the grant of relief of reinstatement at this juncture would mean grant of final relief at an interim stage which also, in our opinion, on account of passage of time of nearly 3 years cannot be granted to the applicant."

14. It appears that the Tribunal has misread the reliefs claimed by the petitioner before it for regularization and therefore the aforesaid observations are made to the effect that if the interim relief claimed by the petitioner is granted, the same would amount to granting the reliefs claimed in the main application.

15. It is painful to note that once this Court passed the order granting interim relief even at the time of relegating the petitioner Page 48 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 before the Tribunal considering the facts and the attitude of Respondent No.1-University which is confirmed by the Division Bench in Letters Patent Appeal No. 2154 of 2019, but the Tribunal without considering the facts which are pleaded before it by the petitioner, has audacity to observe as above. This Court therefore deprecates the same as such observations and the attitude of the Tribunal is totally contradictory to the judicial propriety.

16. The case law relied on by learned Advocate Mr. Thacker in support of his submissions before this Court would not be applicable because of the peculiar facts of this case, more particularly in view of the observations made by this Court in its order dated 7th May, 2019 as well as the observations made by the Division Bench which has certified the attitude of Respondent No.1- University while observing that "No compliance of the said order and challenging the order suggest the vindictive stand of the University."

17. It appears that the Tribunal for the reasons best known to it without considering the above observations made by this Court which are based on the facts which are not in dispute has rejected the application preferred by the petitioner for interim stay pursuant to the Page 49 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 directions issued by the Supreme Court cannot be sustained.

18. The Tribunal ought to have considered that the application of stay preferred by the petitioner was as per the order passed by the Supreme Court and hence, the same ought to have been considered on merits during pendency of the main application filed by the petitioner for regularization of his service with the respondent no.1 University.

19. This court has already granted interim relief vide order dated 7 th May,2019 in SCA no. 10020 of 2018 in favour of the petitioner which was extended by the Tribunal till the order dated 27th September,2019 was passed by it, rejecting the application of the petitioner on technical ground. As the Supreme Court has ordered to set aside the order of the Tribunal dated 27th September,2019, the interim relief which was in operation at the relevant time would revive till final disposal of the application pending before the Tribunal.

20. In view of the foregoing reasons, this petition is allowed. Respondent No.1-University is directed to reinstate the petitioner in Page 50 of 51 Downloaded on : Sun Apr 24 09:12:15 IST 2022 C/SCA/11317/2021 JUDGMENT DATED: 11/01/2022 service during the pendency and till final disposal of Application No. 65 of 2019 before the Tribunal and the Tribunal is directed to hear and dispose of Application No. 65 of 2019 expeditiously as directed by the Apex Court in its order dated 12th January, 2021 within the period of six months from the date of receipt of this order after giving opportunity of hearing to both the sides.

21. At this stage learned Advocate Mr. Thacker for Respondent No.1-University made a request to stay this for a period of two weeks. Considering the facts of this case, such request is rejected.

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

Sd./-

BHARGAV D. KARIA, J) UMESH/-

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