Gujarat High Court
Sejal Davidbhai Christian vs Maharaja Sayajirao University Of ... on 13 June, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19582 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5214 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 11010 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 12789 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SEJAL DAVIDBHAI CHRISTIAN
Versus
MAHARAJA SAYAJIRAO UNIVERSITY OF BARODA
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Appearance:
MR RAJENDRA PATEL(645) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,3,4,5,6,7,8,9
MR SOAHAM JOSHI, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 4,5,6
MR MITUL K SHELAT(2419) for the Respondent(s) No. 1,2,3
MR SB SHAH(1429) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 13/06/2022
COMMON ORAL JUDGMENT
1. Heard Mr. Rajendra Patel, learned advocate for the Page 1 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 petitioners, Mr.Mitul Shelat learned advocate for respondent nos.1 to 3 and Mr.Soaham Joshi learned advocate for respondent nos.4 to 6.
2. In all these petitions, under Article 226 of the Constitution of India, the petitioners who are working with the respondent - University on various posts on a temporary basis, have prayed for a direction to consider the case of the petitioners for regularization on the same posts. The prayers in this petition are to declare the action of the respondents to cancel duly sanctioned vacant posts against which petitioners were serving from the beginning as unlawful and to quash and set aside the same as also to direct the respondents to revive these posts and to consider the petitioners for regularization on the same as a one time measure or on the posts which have become vacant.
3. For the purposes of this judgment, facts of Special Civil Application No.19582 of 2018 shall be considered. Facts in the petition would indicate that the petitioners are serving with the respondent- University for over a Page 2 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 period of more than 10 years. It is the case of the petitioners that at the relevant point of time, they were appointed after passing through the recruitment process and they are possessing the requisite qualification to be appointed.
4. Mr. Rajendra Patel, learned counsel for the petitioners would submit from the table annexed to the petition that it is evident that the petitioners have been appointed against the vacant posts in the respective categories. Initially they were appointed for a period of 90 days. Extensive pleadings have been made in the petition to suggest that various Committees were set up by the University to consider the case of part time employees for regularization. He would rely on the reports of the advisory committees constituted by the Vice Chancellor of the University.
4.1 Mr. Rajendra Patel, learned counsel for the petitioner would draw the attention of the Court to the circular dated 19.04.2002 addressed to all the Deans of the faculties / heads of the institutions stating that the Page 3 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 syndicate has approved the report of professor L.J.Parekh Committee and regularized all those employees who had completed more than 240 days on or before 19.01.1993. He would submit that the Committee taking a broader view had requested that all such cases of Class-III and Class-IV employees who are falling in and around the above recommendation along with proper justification be informed to the University. The case of the petitioners, according to the learned counsel for the petitioners as is evident from reading the orders annexed to the petition would indicate that they were being paid a fixed remuneration while carrying out 6 to 8 hours of work as members of non- teaching staff and the duties and the work was akin to those of regularly appointed employees of the University.
4.2 Mr.Patel learned counsel for the petitioners would then invite the Court's attention to circular dated 09.02.2010 of the University which indicates that as per S.R. No. 18 dated 04.12.2019 and modified subsequently the report of the Committee for Page 4 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 regularization of services of temporary part time non- teaching employees working beyond 240 days. Accordingly the University considering the Government Resolution dated 16.12.2006 extended the benefits of a tenure appointment of 5 years on the basis of the Government resolution of 16.12.2006. The circular further indicates that this regularization will be subject to the Government of Gujarat's approval in case the Government of Gujarat does not approve then the University shall be constrained to withdraw their appointment/regularization order. Thrust of the argument of the learned counsel for the petitioner was that though the appointment orders in the year 2010 on a five year tenure were issued subject to the approval of the Government of Gujarat and the petitioners signed the undertaking accepting such terms, from the tabular chart at Annexure:A and the order dated 27.04.2010, it was apparent that the appointments of the petitioners were against vacant/sanctioned posts. A letter dated 15.06.2010 was written by the Registrar to the then Deputy Secretary, Education Department, where it was Page 5 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 categorically pointed out by the University that out of 1881 sanctioned non-teaching staff posts, 534 posts were vacant. That the persons like the petitioners were working since more than 5 to 15 years. Accordingly, permission to regularize their services on permanent basis was sought for on they having completed more than five years. This was particularly due to the shortage of man power.
5. It appears that the State through the Education Department on 03.09.2010 issued a resolution sanctioning the benefits of the 6th Pay Commission which also, in Mr.Patel's submission indicated that of the sanctioned 1783 posts, only 1373 posts were filled in. On 02.11.2010, the Registrar addressed another letter to Deans of the Faculties that the Government of Gujarat has not sanctioned 410 non-teaching posts, that the University has already made several representations despite which no sanction is received and in the event such sanction is not received on or before 20.12.2010, the University will have no option but to discontinue the services of the petitioner. Time was extended and Page 6 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 ultimately on 27.01.2011, again by a communication of that date, the Deans were informed that with effect from 01.02.2011 all the employees like the petitioners who were appointed on five year basis will be reverted to their original position i.e. on 90 days basis with effect from 01.02.2011 which tenure was extended from time to time. That there were sanctioned posts and they were vacant was evident from a communication written to the Principal Secretary, Higher Education by the Officer on Special Duty of the University. However, the State for the purposes of extending the benefits of 7 th Pay Commission issued a resolution of 20.09.2017 informing the University that the benefits of 7th pay commission was sanctioned to 881 posts on the condition that the other 932 posts are abolished. Based on this, the syndicate resolved that having been informed by the State of the recommendations of the 7 th pay commission, the resolution of the State regarding sanctioning of pay along with the terms and conditions is adopted. Justification was sought to be made by the syndicate members about forming to the Scrutiny Page 7 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 Committee and to appeal to the department to renew 932 non-teaching posts, as there was acute need of the teaching and non-teaching staff and also sought permission of filling in 319 teaching posts. By virtue of this action, and the resolution passed by the syndicate, the petitioners apprehending their termination as a result of abolition of the posts by virtue of the State's contention, approached this Court. On 17.12.2018 in Special Civil Application No.19582 of 2018 the Court as also in the other petitions has protected the petitioners inasmuch as that the service conditions of the petitioners be not altered to their detriment and further their services shall not be terminated till next date which services will be continued till next date. In other words, as set out in the prayers referred to herein above, as a result of the abolition of posts by resolution of 20.09.2017, not only are the petitioners praying for revival of such posts but for regularization.
6. Mr.Rajendra Patel in support of his submissions, relied on the following decisions:
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C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 (I) State of Haryana & Others vs Piara Singh & Others reported in AIR 1992 SC 2130;
(II) Pradeep Navinbhai Patel & Others vs State of Gujarat & Others reported in 2014 (5) GLR 4059;
(III) Secretary, State of Karnataka & Others vs Umadevi (3) & Others reported in (2006) 4 SCC 1;
(IV) State of Karnataka & Others vs M.L. Kesari & Others reported in (2010) 9 SCC 247;
(V) Uttar Pradesh Land Development Corporation & Another vs Mohd. Khursheed Anwar & Another reported in (2010) 7 SCC 739;
(VI) State of Punjab & Others vs Jagjit Singh & Others reported in (2017) 1 SCC 148;
(VII) State of Jammu & Kashmir & Others vs District Bar Association, Bandipora reported in (2017) 3 SCC 410;
(VIII) Narendra Kumar Tiwari & Others vs State of Jharkhand & Others reported in (2018) 8 SCC 238;
(IX) Basudeb Debnath & Others vs Union of India reported in (2021) SCC OnLine Tri 137;
(X) Hargurpratap Singh vs State of Punjab & Others reported in (2007) 13 SCC 292;Page 9 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022
C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 (XI) Vindobhai Shivrambhai Rathod vs. State of Gujarat rendered in SCA No. 7462 of 2012 and group matters;
(XII) State of Gujarat & 2 Others vs Vindobhai Shivrambhai Rathod & 64 Others rendered in LPA No. 1155 of 2019;
(XIII) Circular dated 16.07.2019 issued by the Finance Department, State of Gujarat accepting judgements at Sr. No. 12 and 13 (XIV) PWD Employees Union vs State of Gujarat rendered in SCA No. 9814 of 2014;
(XV) Harshkant Shashikant Joshi vs Vice Chancellor & 6 Others rendered in SCA No. 9626 of 2014;
(XVI) Saurashtra University & 3 Others vs Harshkant Shashikant Joshi rendered in LPA No. 1298 of 2015;
(XVII) State of U.P. & Others vs Putti Lal reported in (2006) 9 SCC 337;
7. Reliance was placed on paragraph nos.10 to 25 of the decision in case of Piara Singh (supra) to submit that when there are posts and ad-hoc appointments are Page 10 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 continued for a long time, the presumption is that there is a need for a regular post and therefore this Court should issue a direction and grant the prayers of regularization in case of the petitioners. Moreover, ad- hoc temporary employees should not be replaced by another set of temporary employees. He would submit that the petitioners are qualified as per the recruitment rules and are working on the sanctioned posts and therefore deserve the benefits of regularization.
8. By the decision in case of Pradeep Navinbhai Patel (supra), a coordinate bench of this Court relying on the decision in case of Secretary, State of Karnataka and others v. Uma Devi, reported in 2006 (4) SCC 1, had granted the benefit of regularization and held that the ratio of Supreme Court in case of Umadevi (supra) was not diluted. It was a case where lecturers were working on a contractual basis. Reliance extensively was placed by the learned counsel for the petitioner on Umadevi (supra) on the ground that at best, the appointments of the petitioners can be said to be irregular and not illegal. As a one time measure Page 11 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 therefore as observed by the supreme Court in case of Umadevi (supra) in para 53 that the petitioners have continued for more than 10 years on duly sanctioned posts, regularization ought to be granted.
9. Para 7 of the decision in the case of M.L. Kesari (Supra) was relied upon where the Supreme Court set out exceptions for granting the benefits of regularization. He would therefore submit that the submissions in para 7 in case of M.L. Kesri (supra) i.e. (I) and (ii) are satisfied in case of the petitioners and they deserve to be regularized. The concept of regularization was reiterated in case of Mohd. Khursheed Anwar (supra).
10. The case of Jagjit Singh (supra) was cited by learned counsel for the petitioner wherein after extensively considering the case law in the context of daily wagers, the Court granted the benefit of minimum of pay to the daily wager, and the Supreme Court had considered and granted the benefit of equal pay for equal work to such daily rated employees holding that they must at Page 12 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 least be granted the minimum of pay scale which is extended to the regular employees holding the same post. Paras 11 and 12 were pressed into service by Mr.Patel wherein the principles set out by the decision of the Supreme Court in case of Umadevi (supra) were considered. Drawing the distinction between the irregular and illegal appointments, paras 4 to 10 of the decision were pressed into service for claiming the benefit of regularization as a one time measure.
11. In the case of Basudeb Debnath & Others (supra), a Division Bench of the High Court of Tripura considered the decisions rendered in the case of Umadevi (supra) and Jagjitsinh (supra). The Division Bench disposed of the petitions directing the respondents to form a committee to consider the cases for regularization laying down stipulation and yardsticks for the Committee to consider. In the decision of Tripura High Court in case of Basudeb Debnath (supra), the Court had considered the decision of the Supreme Court in case of Hargurpratap Singh (supra).
12. For the purposes of minimum pay and pay scale, Page 13 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 Mr.Patel relied on the decisions of the coordinate bench of this Court in the group of matters led by Special Civil Application No.7462 of 2012 which was confirmed by the Division Bench in Letters Patent Appeal No.1155 of 2019. In the case of Harshkant Shashikant Joshi v. the Saurashtra University rendered in Special Civil Application No. 9626 of 2014 which was subsequently a matter of appeal before the Division Bench in Letters Patent Appeal No.1298/2015, the Division Bench affirming the decision of the learned Single Judge held that it is for the State to bear the burden of paying the retiral benefits as the university was receiving the grant from the State. By the tabular chart produced at the time, it was emphatically submitted by the learned counsel for the petitioner that there are vacant posts on which the petitioners could be regularized.
13. Mr. Mitul Shelat learned counsel appearing for the respondent M.S.University raised a preliminary objection as to the maintainability of the petition. He would rely on the provisions of the Gujarat Educational Page 14 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 Institutions Services Tribunal Act, 2006 (for short 'the Act'). Pressing into service the provisions of Section 11 of the Act, Mr. Shelat would submit that the dispute essentially ought to be in the domain of the Tribunal as it is a dispute relating to conditions of service between the employees of the university and the petitioner should be ousted only on the ground of alternative remedy.
14. In support of his submission, Mr. Shelat would place reliance on the decision of the division Bench in case of Mahavirsinh Narpatsinh Jadeja v. Saurashtra University (Letters Patent Appeal No.337 of 2020) decided on 28.07.2020. Relevant paragraphs of the decision are read out before the Court.
15. Mr.Shelat would also take the Court through the affidavit in reply filed by the University. He would submit that what is evident from the record is that initially the petitioners were working for a tenure of 90 days considering the reports of the Committee, it was decided to recommend to the State whether the benefit Page 15 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 of regularisation be extended to such employees like the petitioners. Reading the order dated 27.04.2010, he would submit that the orders specifically were conditional wherein it was stated that the benefit of granting them the five year tenure appointment from 2010 was subject to the approval of the Government of Gujarat and if the Government of Gujarat does not permit, then the apportionment shall stand cancelled and the University in no way be responsible for the same. The petitioners had given an undertaking to that effect. He would invite the Court's attention to the draft undertaking filed along with the petition where condition specifically made the appointment conditional subject to the approval of the Government which undertaking the petitioners had knowingly given. The principle of estoppel therefore was pressed into service. He would submit that the judgments relied upon by the learned counsel for the petitioners essentially relate to the relief of regularization which this Court should be loath in granting in exercise of powers under Article 226 of the Constitution of India.
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16. In support of his submission, Mr.Shelat would rely on the decision of the Supreme Court in case of State of Manipur and another reported in 2007 (10) SCC
544.
17. In support of his submission that the powers under Article 226 cannot be exercised to direct regularization, reliance was also placed on the decision in case of Padubidri Damodar Shenoy vs. Indian Airlines Limited and Another reported in 2009 (10) SCC
514. This was pressed into service in order to support his submission that the appointment order was conditional subject to approval of competent authority and once the approval was refused, the petitioners were bound to abide by that condition and not claim regularization. In support of this submission, Mr.Shelat also relied on the decision in case of Vidyavardhaka Sangha and Another vs. Y.D. Deshpande and Others reported in 2006 (12) SCC 482. Paragraph No.4 of the decision was pressed into service.
18. The decision in case of State of Maharashtra and Page 17 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 Others vs. Anita and Another reported in 2016 (8) SCC 293 was pressed into service by Mr.Shelat on the principle of estoppel where, once the appointment and its nature has been accepted, employee cannot turn around and challenge the same. He would rely on paragraph nos.14 and 15 of the decision.
19. Also referring to the provisions of the M.S.University Act, 1949, Mr. Shelat would invite the Court's attention to Section 24(xxiv), where, it is open for the syndicate to exercise certain powers, however, as far as determination of salaries and allowances of the employees of the University are considered, sub-section (4) of Section 24 makes it clear that it shall be subject to the approval of the State Government.
20. Mr.Soaham Joshi learned AGP would invite the Court's attention to the affidavit in reply filed on behalf of the respondent no.6 reiterating the submission of the learned counsel Mr.Shelat on the preliminary objection regarding maintainability on the ground of the remedy being available with the Tribunal, he would submit that Page 18 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 no prior sanction before appointment orders were issued of the State was taken and therefore the State cannot be foisted with the liability of the benefit of regularisation and therefore in line with the provision of Section 24(xxiv) of the Act, the State extended the benefits of the 7th pay commission only on a condition that 932 posts are abolished. Reliance is placed on the results of the Government dated 03.03.2016 and 16.03.2021 to indicate that the State would not approve all appointments to the posts in the university without previous approval of the State.
21. During the course of the dictation of the judgment today, Mr.Rajendra Patel as on the question of alternative remedy cited the decisions as under:
(i) Whirl Pool Corporation vs. Registrar of Trade Marks reported in (1998) 8 SCC 1, paras 14 and 15;
(ii) Harbansal Sahnia and Another vs. Indian Oil Corporation Ltd. and Others reported in (2003) 2 SCC 107;
(iii) Canara Bank, Ashram Road vs. Collector of Stamps reported in (2013) 3 GLH 205.Page 19 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022
C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022
22. Mr. Patel would submit that as in light of these decisions, merely because an alternative remedy is available, discretionary relief under Article 226 of the Constitution of India having regard to the facts of the present case should be exercised. Exercise of discretionary relief are self imposed restrictions and even if an effective efficacious remedy is available that will not operate as a bar in exercise of relief under Article 226 of the Constitution of India.
23. Considering the submissions made by the learned counsel for the respective parties, the relief sought by the petitioners has to be viewed in light of the prayers indicated herein above, that is to revive the abolished posts and grant the benefit of regularization is prayed for by the petitioners. It is the case of the petitioners that they have been continued by the respondent university, for over a period of more than 10 to 15 years against vacant posts. The order of 27.04.2012 was issued by the University showing against each petitioner, the net salary that he/she would draw Page 20 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 against the vacant post of the respective cadre/category that he or she was occupying. The orders of appointments were conditional inasmuch as these orders so stated that these appointments will be subject to the approval of the Government of Gujarat and if the Government of Gujarat does not permit, than the appointment shall stand cancelled and the University in no way be responsible for the same. The order also stated that signing of the undertaking would mean that all the terms and conditions mentioned in the undertaking are acceptable to the appointee and nobody at a later stage would deny it under any pretext. The undertaking and format thereto is on record. Primarily the cause of action occurred in favour of the petitioners as the State did not extend the benefit of the 7th pay commission to the sanctioned strength of the University on the condition that the remaining 932 posts be abolished.
24. This led to the university passing resolution no.33 in the syndicate adopting the resolution of the State. Reading of the extract of the resolution (page 187) of SCA Page 21 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 No.19582 of 2018 would indicate as under;
"Hon'ble Vice Chancellor also informed syndicate members about formation of Scrutiny Committee constituted by the Education Department, Government of Gujarat to consider the proposal of renewal of vacant teaching and non-teaching posts in respect of its permanent abolishment. The Hon'ble Vice Chancellor had made presentation before the scrutiny committee in the aforesaid meeting giving justification for allowing the Maharaja Sayajirao University of Baroda to fill in the vacant posts of Teaching & Non Teaching at the Maharaja Sayajirao University of Baroda, Vadodara.
"In view of the above, the Syndicate has resolved to appeal to the Education Department, Government of Gujarat to renew all the deleted 932 non-teaching positions as mentioned in the 7th Pay commission vide GR NoMSY-1217-130- KhR dated 20.09.2017 issued by the Department of Education, Government of Gujarat and also to grant permission to fill in the vacant 319 teaching positions lying vacant as on 30-9-2017 as the University is in acute need of these Teaching & Non-Teaching posts."
25. As the university is in acute need of this teaching and non-teaching posts, the University has no alternative but to fall back on the undertaking given by the petitioners on the basis of a conditional order dated 27.04.2010 which gave rise to the present batch of the petitions. From the tabular charts and data produced by the petitioners it is the case of the petitioners that there are posts which are vacant and sanctioned and the Page 22 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 petitioners are working on such posts and that the petitioners want this Court to accept that from the order dated 27.04.2010. There can be no dispute on the submission of the learned counsel for the petitioners on the point of law as is pressed into service in terms of para 53 of the decision in case of Umadevi (supra). The affidavit of the State except for relying on the circulars/resolutions dated 03.03.2016 and 16.03.2010 and so also of the University does not set out as to the exact number of posts that are sanctioned / vacant or what action is contemplated for reviving 932 posts which the University has abolished. Para 53 of the decision in case of Umadevi (supra) is not to be read in isolation but also the observations made by the Supreme Court in para 43, which needs to be taken into consideration:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that Page 23 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified 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 by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere Page 24 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
26. Coming to the provisions of Gujarat Educational Services Tribunal Act, Section 11 thereof reads as under:
11. Appeal.- (1) An employee aggrieved by an original order or appellate order or decision of the educational institution which is connected with the conditions of service of such employee or, as the case may be, the educational institution, may, within a period of sixty days from the date of such order or decision, appeal to the tribunal.
(2) Notwithstanding anything contained in sub-section (1), the tribunal may entertain an appeal made to it after the expiry of the period of ninety days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.
27. Here is a set of employees appointed by the University, their claim of regularisation is against the University and their say is that their appointments are on sanctioned vacant posts on the set up of the University. They were extended the benefits of five year tenure on the basis of an assurance by the University that appropriate request will be made to the State for approval of their appointments. Even if the case of the petitioners that the undertakings cannot be held against Page 25 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 them on the principle of estoppel and the circumstances on the basis of which such undertakings were given is accepted, the question cannot be an examination of an inquisitorial inquiry in exercise of powers under Article 226 of the Constitution of India. Merely because in accordance with the provisions of Section 24(4) of the M.S.University Act, the approval for the emoluments and salaries has to be from the State and the role of the State would not oust the jurisdiction of the Tribunal in the case on hand.
28. The view is supported by the Division Bench in case of Mahavirsingh Jadeja (supra). The appellant therein had initially approached the court by filing Special Civil Application No.10020 of 2018 to grant the benefit of regularisation and permanency. The petition was disposed of by a judgment dated 07.05.2019. When the Court opined that it is not persuaded to exercise writ jurisdiction in wake of availability of the statutory alternative remedy under Section 11 of the Gujarat Educational Institution Services Act 2006, the petitioner was relegated to Tribunal with certain observations and Page 26 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 directions. The university went in appeal before the Division Bench which was dismissed. Even the employee had preferred an appeal which was dismissed by an order of 04.07.2019. Contempt proceedings were thereafter filed as the employee was not reinstated despite the interim relief being continued. Special Civil Application was again filed before this Court which was heard and rejected for the employee to approach the Tribunal.
29. On appeal again being filed by the employee, the Division Bench of this Court considering the submissions of the respective parties from para 23 onwards, appreciating the provisions of Section 11 together with the decisions of the supreme Court in the case of Harbansal Sahnia (supra) and other decisions opined that no fault can be found with the directions of the learned Single Judge who declined to entertain the Writ Application on the ground of alternative efficacious remedy of an appeal. Paragraph nos.23 to 38 read as under:
"23 Having heard the learned counsel appearing Page 27 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned order.
24 Before adverting to the rival submissions canvassed on either side, we may look into the few relevant provisions of law. Section 2(d) of the Act, 2006 defines the term "employee" as under:
"Section 2 Definitions - In this Act, unless the context otherwise requires,- (d) "employee" means the any member of the teaching and non-teaching staff of the educational institution (whether confirmed or temporary or on probation) in service of such institution and for the purpose of any proceeding under this Act in relation to a dispute referred to in Section 10, includes any such member who has been dismissed or removed or whose services are otherwise terminated;"
25 Section 11 of the Act, 2006 reads thus:
"11. Appeal.-(1) An employee aggrieved by an original order or appellate order or decision of the educational institution which is connected with the conditions of service of such employee or, as the case may be, the educational institution, may, within a period of sixty days from the date of such order or decision, appeal to the tribunal.
(2) Notwithstanding anything contained in sub-section (1), the tribunal may entertain an appeal made to it after the expiry of the period of ninety days, if it is satisfied that the appellate has sufficient cause for not preferring the appeal within that period."
26 The plain reading of the above referred provisions makes it abundantly clear that if any employee of the teaching and non-teaching staff of an educational institution is aggrieved by any Page 28 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 order or decision relating to his service conditions, he has an efficacious alternative remedy of preferring an appeal to the Tribunal. The combined reading of the relevant provisions of the Act, 2006 reveal that the appellant herein undoubtedly falls within the ambit of an "employee" of the University constituted under Section 2(15) of the Saurashtra University Act, 1965. Any decision or order of the educational institution connected with the condition of service of its employee is required to be challenged before the Tribunal in accordance with the provisions of the Act, 1965 and the provisions of the Services Tribunal Act, 2006.
27 The aforenoted two submissions of Mr. Gogia are mutually destructive. On one hand, Mr. Gogia would submit that his client is not an employee of the Saurashtra University within Section 2(d) of the Act, 2006, and on the other, it is argued that filing an appeal before the Tribunal would not be an efficacious alternative remedy. The University has also conceded to the position that the appellant herein would fall within the ambit of "employee", as defined under Section 2(d) of the Act, 2006.
28 The Supreme Court in the judgement reported in (2006) 12 SCC 233 (Steel Authority of India Ltd vs. Union of India and others) held that a mutually destructive plea is impermissible in law. At para 28, it has enunciated thus:
"28. The workmen whether before the Labour Court or in writ proceedings were represented by the same Union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and Page 29 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication."
29 It has time and again been held by the Constitutional Courts in India that writ petition should not be entertained if an alternative statutory remedy is available.
30 In the case of Commissioner of Income Tax v. Chhabil Dass Agrawal (2014) 1 SCC 603, the Supreme Court held that when a statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring the statutory dispensation subject to certain exceptions. The Apex Court further opined that non-entertainment of petitions under the writ jurisdiction by the High Courts where efficacious or alternative remedy is available, is a rule of self- imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. The Apex Court has also opined that undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India despite existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or if there is sufficient grounds to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
31 In the case of Harbanslal Sahnia vs. Indian Oil Page 30 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 Corpn. Ltd. (2003) 2 SCC 107, it was held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged.
32 Similar observation has been made by the High Court of Calcutta in a recent case of Mina Perween vs The State Of West Bengal & Ors (MAT 515 of 2018 decided on 25th June 2018). In this case, the Appellant had assailed High Court's order, whereby the Single Judge of the Court had dismissed the Appellant's writ petition holding, inter alia, that the same was not maintainable before the writ Court and relegated the writ petitioner to an appropriate statutory remedy which is available for a period of thirty days from the date of declaration of the election results. In the said case, the appellant/petitioner had challenged the election process for the post of a Gram Panchayat member. In appeal, the Court noted that the statutory mechanism for raising any dispute after participating in an election pertaining to Panchayats has been enumerated under section 79 of the West Bengal Panchayat Elections Act, 2003. The said provision allows any person who is entitled to vote in the Panchayat election to raise any dispute with regard to the validity of an election within a statutory time frame before such authorities as prescribed under section 79. With reference to the facts of the said case, the Court noted that the appellant can have her grievances adequately redressed before the competent statutory authority as provided under Page 31 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 Section 79 of the West Bengal Panchayat Elections Act, 2003.
33 In the case of Sadhana Lodh vs. National Insurance Co.Ltd. and another reported in (2003) 3 SCC 524, the Apex Court held that the right to appeal is a statutory right where the law provides remedy by way of filing an appeal on limited grounds and such challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution of India. It would be profitable to reproduce the findings and observations of the Apex Court as under:-
"6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd, Chandigarh vs. Nicolletta Rohtagi and others 2002(7) SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where Page 32 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution.
7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision."
34 If the learned Single Judge declined to Page 33 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 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 judgement 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 intraCourt 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 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 Page 34 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 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. 38 In view of the final disposal of the main matter, the connected civil application also stands disposed of."
30. The petitioners in the present petitions, as is evident from the facts recorded, have been working for a period over 10 to 15 years with the University. Interim relief has been granted by this Court in the year 2018 in the first petition where the Court has observed as under:
"Draft amendment dated 17.12.2018 tendered today is granted. The amendment may be carried out immediately.
Heard learned advocate Mr. Rajendra Patel for the petitioners.
Notice returnable on 10.1.2019. By way of ad interim relief, it is directed that the service conditions of the petitioners shall not be altered to their detriment and further their services shall not Page 35 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022 C/SCA/19582/2018 JUDGMENT DATED: 13/06/2022 be terminated till the next date. Direct service is permitted. To be heard with Special Civil Application No. 12789 of 2018."
31. Therefore, in the interest of justice, while relegating the petitioners to statutory remedy of filing proceedings under Section 11 of the Act, the interim relief that is granted by this Court shall continue upto 16.08.2022 for the petitioners to avail an alternative remedy as provided under the Act. After the applications are filed as suggested by this Court before the Tribunal, the Tribunal shall consider the case on merits including the question of interim relief.
32. With the aforesaid observations, the petitions are dismissed. It is hoped and expected that looking to the age of the petitioners who have been in service for over a period of 10 years and are between the age of 45 to 50 years, as and when the applications are filed, the Tribunal shall make an endeavor to decide the same as expeditiously as possible, preferably within a period of six months from the date of receipt of copy of this judgment.
(BIREN VAISHNAV, J) ANKIT SHAH Page 36 of 36 Downloaded on : Sat Dec 24 18:43:55 IST 2022