Ashish Kiritkumar Shah vs State Of Gujarat

N.V.Anjaria, J

In the facts and circumstances of the case and having regard to the consent and request of the parties appearing through their respective learned

advocates, the petition was taken up for final consideration today.

1.1 Rule returnable forthwith. Learned Assistant Government Pleader Mr.Manan Mehta waives service of notice of Rule on behalf of the

respondents.

1.2 Heard learned advocate Mr.Ekrama Qureshi for the petitioners and learned Assistant Government Pleader for the respondents.

This petition is filed seeking following prayers,

(i) To release the increments with arrears (under the fifth pay and sixth pay as applicable from its respective dates) from the date of the initial

appointment of the petitioners with interest and all other consequential benefits.

(ii) To direct the respondents to treat the petitioners who are appointed and working as Ad Hoc Lecturers in the Government Degree Engineering

Colleges and Government Polytechnic Colleges after May 2008 at par with the ad hoc lecturers appointed prior to May 2008 and to grant the pay and

pay scales and annual increments and salary benefits at par with them and also to give the arrears of salary (under the relevant pay commission as

become applicable from its respective dates) to all the petitioners with interest.

(iii) To give the benefits of vacation detention, leave, medical allowances, HPL, LTC and other benefits as given to the lecturers appointed prior to

May 2008 and as mentioned in government circular dated 15.10.1992 and 20.07.1999.

The petitioners were appointed as ad hoc Lecturer Colleges, in the year 2008Â09 by the Commissioner of Technical Education  respondent No.2

herein, in the payÂscale of Rs.8000Â275Â13500. It is the grievance of the petitioners that their salary was kept stagnant and the increments were not

released. It was the case that though the work discharged by the petitioners was of the same kind and level as was done by the similarly situated ad

hoc Lecturers who were appointed prior to May, 2008, the petitioners were denied the equal basic pay, increments, vacation leave, medical, LTC and

other benefits.

Learned advocate for the petitioners submitted that when all the identically situated Lecturers appointed prior to May, 2008, were granted the

benefits, nonÂ​granting of the same to the petitioners was manifestly arbitrary and in violation of Articles14 and 16 of the Constitution.

4.1 Learned advocate for the petitioners submitted that the issue involved in this petition was already answered by this Court inJain Soniya

Rajeshkumar vs. State of Gujarat, being Special Civil Application No.3919 of 2018, decided by judgment dated 03.04.2019.

4.2 Learned Assistant Government Pleader could not dispute the law laid down by this Court inJain Soniya Rajeshkumar (supra) and the applicability

thereof to the facts of the present case.

Similar to the petitioner of Jain Soniya Rajeshkumar (supra),the petitioners herein are alsoad hoc Lecturer appointed after May, 2008. They are

being paid only basic pay of Rs.8,000/Â​ in the aforementioned payÂ​scale and they are not given any other benefits.

5.1 The contention could be countenanced that by not extending to the petitioners the payÂscale and other identical benefits as are given to the class

ofad hoc Lecturers appointed prior to May, 2008, the respondents have created a class within class and they have divided the homogeneous class ofad

hoc Lecturers.

5.2 In Jain Soniya Rajeshkumar (supra),the Court relied on the decision in Acharya Madhavi Bhavin and 115 vs. State of Gujarat, being Special Civil

Application No.8152 of 2015 and allied petitions, decided on 07.09.2016. In the said batch of petitions also the petitioners were similarly situated who

had raised identical grievance that thead hoc Lecturers appointed prior to May, 2008, are granted the regular payÂscale and those appointed

subsequent to May, 2008, are being deprived of the regular pay and the incidental service benefits.

5.3 In the decision rendered in Acharya Madhavi Bhavin (supra), this Court in the operative paragraph 65 held as under,

“In the result, all the writ applications succeed in part. The State is directed to put the ad hoc Lecturers appointed after May 2008 on par with the

ad hoc Lecturers appointed prior to May 2008. The ad hoc Lecturers appointed after May 2008 shall be paid the salary and other allowances on par

with the same received by the ad hoc Lecturers appointed prior to May 2008. Such benefits shall be granted to them with effect from January 2015

onwards. It is directed that the contractual Lecturers shall be paid the minimum of the pay scale so far as the post of Lecturer is concerned with all

other allowances attached to the same with effect from January 2015.â€​

5.4 The aforesaid decision was carried in Letters Patent Appeal No.1184 of 2017 along with other cognate petitions. The said challenge was directed

tothe aspect that the benefits came to be directed to be granted to the petitioners from the year 2015 onwards and not from their initial appointments.

5.5 The Division Bench in the Letters Patent Appeal, observed and held as under,

“[8.3] Now, so far as Letters Patent Appeal No.1184/2017 preferred by the original petitioners of Special Civil Application No.8152/2015

challenging the impugned common judgment and order passed by the learned Single Judge insofar as granting the reliefs fully with effect from January

2015 onwards only and not granting the reliefs from their initial appointment is concerned, at the outset it is required to be noted that as such the

learned Advocate appearing on behalf of the original petitioners before the learned Single Judge heavily relied upon the decision of the Bombay High

Court in the case of Sachin Ambadas Dawale (Supra) in Writ Petition No.2046/2010 in support of their submission that their services must be

regularized from the date of their initial appointment. However, the learned Single Judge though observed that he could have followed the decision of

the Bombay High Court, which came to be affirmed by the Honble Supreme Court, and could have issued the directions in tune with the one issued by

the Bombay High Court as regards regularization of service, however, he was not inclined to issue any mandamus in that regard. The learned Single

Judge in para 64 has observed as under:

“64. I am of the view that the aforenoted Notification is in no manner helpful to the writ applicants and could hardly be said to be in line with the

suggestion of this Court referred to above. I could have followed the Division Bench decision of the Bombay High Court referred to above, which

came to be affirmed by the Supreme Court, and could have issued directions in tune with one issued by the Division Bench of the Bombay High Court

as regards regularisation in service. However, for the present, I am not inclined to issue any mandamus in this regard. At the same time, I am of the

firm view that the ad hoc Lecturers appointed after May 2008 should be put on par with the ad hoc Lecturers appointed prior to May 2008 and should

be paid the pay scale and other benefits accordingly. In the same way, I am of the view that the contractual Lecturers should be paid the minimum of

the pay scale so far as the post of Lecturer is concerned with all other allowances attached to the same.â€​

There is no further justification at all by the learned Single Judge to grant the benefits after putting them at par with those appointed prior to May 2008

from January 2015 onwards only. However, at the same time considering the decision of the Honble Supreme Court in the case of Shiv Dass (Supra),

the original petitioners shall be entitled to the benefits at par with those adhoc lecturers appointed prior to May 2008 from the last 3 years preceding

filing of the petition. There is no justification at all in granting such benefits with effect from January 2015 onwards only. Once it is held that all those

adhoc lecturers / Assistant Professors appointed after May 2008 shall be put at par with the adhoc lecturers appointed prior to May 2008, they are

entitled to such benefits for the period even prior to filing of the petitions. However, they can be granted the benefits of last 3 years from the date of

filing of the petition only. Therefore, to the aforesaid extent the impugned common judgment and order passed by the learned Single Judge is required

to be modified and Letters Patent Appeal No.1184/2017 is required to be partly allowed to the aforesaid extent. Considering various decisions of the

Honble Supreme Court as well as this Court, the original petitioners who as such are appointed as adhoc lecturers and till the regular selected GPSC

candidates are available, the learned Single Judge has right not granted the relief of regularization, however at the same time has rightly put them at

par with other similarly situated employees insofar as the salary and other benefits are concerned. The impugned judgment and order passed by the

learned Single Judge is absolutely in consonance with the decision of the Honble Supreme Court in the case of Jagjit Singh (Supra). In the aforesaid

decision the Honble Supreme Court in para 42.2, 42.3, 42.6 and 42.7 has observed and held as under:

“42.2 The mere fact that the subject post occupied by the claimant, is in a different department visÂaÂvis the reference post, does not have any

bearing on the determination of a claim, under the principle of equal pay for equal work. Persons discharging identical duties, cannot be treated

differently, in the matter of their pay, merely because they belong to different departments of Government (see Randhir Singh case7 and D.S. Nakara

case).

42.3 The principle of equal pay for equal work, applies to cases of unequal scales of pay, based on no classification or irrational classification (see

Randhir Singh case7). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being

functionally equal, should be of the same quality and sensitivity (see Federation of All India Customs and Central Excise Stenographers case9, Mewa

Ram Kanojia case11, Grih Kalyan Kendra Workers Union case6 and S.C. Chandra case).

42.6 For placement in a regular payÂscale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a

regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular payÂscale (see Orissa

University of Agriculture & Technology case).

42.7 Persons performing the same or similar functions, duties and responsibilities, can also be placed in different payÂscales. Such as  selection

grade, in the same post. But this difference must emerge out of a legitimate foundation, such as merit, or seniority, or some other relevant criteria (see

State of U.P. v. J.P. Chaurasia)â€​

[9.0] In view of the above and for the reasons stated above, Letters Patent Appeal Nos.1354/2017, 1359/2017 and 2148/2017 preferred by the

appellant original respondents State Authorities deserve to be dismissed and are, accordingly, dismissed. Letters Patent Appeal No.1184/2017 in

Special Civil Application No.8152/2015 preferred by the original petitioners of Special Civil Application No.8152/2015 is hereby partly allowed and the

impugned judgment and order passed by the learned Single Judge in Special Civil Application No.8152/2015 is hereby modified to the extent it is held

that the original petitioners shall be entitled to the salary and other benefits at par with those adhoc lecturers appointed prior to May 2008 and they

shall be granted such benefit from the last 3 years preceding the filing of the petition i.e. from 2012 onwards. No costs.â€​

Thus, the Division Bench partlyÂallowed the Letters Patent Appeal against the judgment in Special Civil Application No.8152 of 2015, and directed

that the petitioners shall be entitled to salary and other benefits at par with those adÂhoc Lecturers appointed prior to May, 2008 and that they shall be

granted such benefits from the last three years preceding the filing of the petition, that is from 2012 onwards.

6.1 The present petitioners constitute the same class and are entitled to the same relief by treating them with parity. Accordingly, the present petition

is allowed by directing the respondents to grant to the petitioners the pay and payÂscale as well as the annual increments and other incidental benefits

at par with the other adÂhoc Lecturers appointed prior to May, 2008 from 2012 onwards. The relief and the directions given by this Court in Acharya

Madhavi Bhavin (supra), as modified by the Letters Patent Bench in Letters Patent Appeal No.1184 of 2017 shall govern the case of the present

petitioners also.

The present petition is allowed accordingly. Rule is made absolute to the said extent.