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2024 DIGILAW 1743 (GUJ)

VAGHRI ASHOKBHAI BABUBHAI v. STATE OF GUJARAT

2024-08-21

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : A.S. SUPEHIA, J. 1. Admit. Mr. Sahil Trivedi, learned AGP waives service of notice of admission on behalf of respondent No. 1 and Mr. Chaitanya Joshi, learned advocate waives service of notice of admission on behalf of respondent No. 3. 2. With the consent of the learned advocates for the respective parties, the matters are taken up for final hearing today. 3. There are multiple prayers made by the appellants – original petitioners in the writ petitions. The same are as under: “6(A) This Hon’ble Court may be pleased to admit this Special Civil Application. (B) This Hon’ble Court may be pleased to issue an appropriate writ of mandamus or any other appropriate writ order or direction to respondents to regularise the service conditions of the present petitioners and to confer the benefit of permanency on that post of Lecturers held by them in different Government Colleges and to give them all consequential benefits with effect from filing of this petition. (C) This Hon’ble Court may be pleased to issue an appropriate, writ order or direction to direct respondents, their agents and servants not to terminate the service of the present petitioners in any manner. (D) This Hon’ble Court may be pleased to direct respondents to forthwith frame and implement the scheme to relax age and to select the qualified and experienced adhoc Lecturers/Contractual Lecturers through a limited competitive exams as suggested by this Hon’ble Court in its order dated 24.03.2011 passed in LPA No. 2986 of 2012. (E) That this Hon’ble Court may be pleased to allow this petition by issuing a writ or direction against the respondents to direct the respondents to consider the case for minimum pay scale of Lecturers as they have been appointed against sanctioned vacant post in the interest of justice. (F) Pending admission, hearing and final disposal of this petition, the Hon’ble Court may be pleased to restrain the respondents from discharging the petitioners or terminating their services of the petitioners in any manner. (G) Pending admission, hearing and final disposal of this petition, the Hon’ble Court may be pleased to direct the respondents to maintain status quo of the service condition of the petitioners. (H) To pass such other and further orders as may be deemed just and proper in the circumstances of the case.” 4. (G) Pending admission, hearing and final disposal of this petition, the Hon’ble Court may be pleased to direct the respondents to maintain status quo of the service condition of the petitioners. (H) To pass such other and further orders as may be deemed just and proper in the circumstances of the case.” 4. Before the learned Single Judge, the writ petitions were only pressed for prayers (B) and (E). 5. The learned Single Judge has after threadbare examination of the issue and after considering the array of judgments of the Supreme Court has rejected the writ petitions. During the pendency of the present Letters Patent Appeals, the State Government, Education Department vide Resolution dated 02.08.2024 has decided to confer the fix pay of Rs.40,176/- to the appellants. Before the issuance of said Resolution, they were being paid fixed wages of Rs.25,000/-. So far as the claim of the wages @ of Rs.40,176/- with retrospective effect is concerned, a statement has been made before us that the appellants, if they so desire, will be filing separate proceedings for claiming the differential amount. 6. The prayer (B) of the writ petition suggests that the appellants-petitioners are claiming benefit of permanency on the post of Lecturers held by them in different Government colleges. They were all appointed as Vyakhyata Sahayak on fixed wages on contractual basis of Rs.25,000/. It is settled legal precedent that the regularization/ permanency cannot be claimed as a matter of right and the same depends on number of factors such as mode of appointment, availability of sanctioned posts, qualifications, Rules governing regularization, etc. The learned Single Judge has rejected the writ petitions on this issue while placing reliance on various judgments of the Supreme Court including Secretary, State of Karnataka vs. Uma Devi, 2006 (4) SCC 1 . The Supreme Court in said case as a one-time measure, had directed regularization of those daily wagers, ad hoc and contractual employees, who were appointed irregularly but had completed 10 years of service without any interim orders of any Court. It is an admitted fact that none of the appellants have completed 10 years of service. Thus, we are in complete agreement with the order passed by the learned Single Judge rejecting the prayer for permanency. 7. It is an admitted fact that none of the appellants have completed 10 years of service. Thus, we are in complete agreement with the order passed by the learned Single Judge rejecting the prayer for permanency. 7. So far as prayer (E) is concerned, the appellants are claiming minimum pay-scale of Lecturers on the basis of they having been appointed against sanctioned vacant posts. Learned advocate Mr. Vyas, for the appellants has submitted that the appellants are entitled to the minimum of the pay-scale of the Lecturers, as they are doing the similar work of regular lecturers. He has placed reliance on the judgment of the Coordinate Bench in Letters Patent Appeal No. 1159 of 2017 and allied matters dated 14.02.2023, which pertains to the Lecturers those who are working on contractual basis in the Government Engineering Colleges and Government Diploma Engineering Polytechnics. Reliance is also placed on the judgment of the Supreme Court in the case of State of Punjab and Ors. vs. Jagjit Singh and Ors. AIR 2016 SC 5176 . Thus, it is urged that the appellants are entitled to at least minimum of the pay-scale which has been conferred to the regular Lecturers. 8. Per contra, learned AGP, while placing reliance on the judgment of the Supreme Court in the case of Union of India vs. Indian Navy Civilian Design Officers Association and Anr. 2023 Live Law (SC) 129 and the judgment in the case of State of Madhya Pradesh Through Principal Secretary and Ors. vs. Seema Sharma, 2022 SCC Online 809, has submitted that in fact the appellants, who are appointed as Vyakhyata Sahayak, are not entitled to the minimum pay-scale equivalent to the pay-scale of regular Lecturers since their mode of recruitment, requisite qualification, nature of initial appointment, place of recruitment and nature of duties are different. Learned AGP has categorically stated that since all these aspects will govern the pay-scales/pay of the respective posts, the appellants cannot as a matter of right claim the minimum of pay- scale. 9. We have heard the learned advocates appearing for the respective parties. Before we proceed to deal with the issue, it will be apposite to refer to the broad comparison between the Vyakhyata Sahayak i.e the appellants and Adhyapak Sahayak in Non-Government colleges. 9. We have heard the learned advocates appearing for the respective parties. Before we proceed to deal with the issue, it will be apposite to refer to the broad comparison between the Vyakhyata Sahayak i.e the appellants and Adhyapak Sahayak in Non-Government colleges. We are comparing the case of the appellants to that of Adhyapak Sahyaks, since in the captioned Civil Application No. 2 of 2020, which has been filed by the applicants, the applicants have claimed for absorption and payment revision of salary equivalent to the posts of Adhyapak Sahayaks instead of Lecturers. The prayers mentioned therein are as under: “9(A) Direct the respondent authorities to absorb the applicants on the sanctioned vacant posts of Adhyapak Sahayaks in Non-Government grant-in-aid colleges. (B) Direct the respondent authorities to give preference to the applicants in the matter of appointment to the post of Adhyapak Sahayaks on the sanctioned vacant posts in Non-Government grant-in-aid colleges, if otherwise the applicants are eligible for appointment t the said post. (C) Direct the respondent authorities to revise the salary of the applicants as per the policy of the Government as contained in the Government Resolution dated 04.04.2017, Annexure -D to this application.” 10. Thus, in the Civil Application, the appellants have claimed something which is beyond the prayers of the writ petition. The learned Single Judge has not gone through such issue. The comparison between the appellants-Vyakhyata Sahayak and Adhyapak Sahayaks is as under: Vyakhyata Sahayak (Applicants) in Govt. Colleges Adhyapak Sahayak in Non-Govt. Colleges 1. Requisite Qualification Post-graduate Degree in the concerned subject with 55% marks. Vide guidelines dated 16.08.2012, issued by the Department to the Commissioner of Higher Education, Gandhinagar, exemption is provided in the matter of the passing of the examinations of NET/SLET/GSET/Ph.D., if the candidates holding the said qualifications are not available. (i) Must have minimum 55% marks relevant subject at post-graduate level with good academic record as per UGC Regulations, 2019. (ii) Must have passed the examinations of NET/SLET/GSET/Ph.D. qualification. 2. Mode of recruitment Each of the government colleges selects on their own through their respective Selection Committee through Walk-in-Interview process, carrying 90 marks, followed by oral interview carrying 10 marks. (i) Must have minimum 55% marks relevant subject at post-graduate level with good academic record as per UGC Regulations, 2019. (ii) Must have passed the examinations of NET/SLET/GSET/Ph.D. qualification. 2. Mode of recruitment Each of the government colleges selects on their own through their respective Selection Committee through Walk-in-Interview process, carrying 90 marks, followed by oral interview carrying 10 marks. Selection is done through a Central Recruitment Process, wherein the merit list is prepared based on the marks obtained (out of 95 marks) at UG level, PG level and any further qualification, such as M.Phil, NET, GSET, followed by the interview, carrying 5 marks. 3. Nature of initial appointment As per GR dated 26.06.2008, appointment is made on contractual basis for the period of 11 months, till regularly selected candidates through GPSC, are available. As per GR dated 25.08.2005, initial appoint is made on a fixed-pay for a term of 5 years, whereafter one shall be considered for being absorbed as a regular appointee with pay-scale. 4. Place of recruitment Government Colleges in the streams of Arts, Commerce, Science Non-government, Grant-in-aid colleges in different streams 5. Nature of Duties Apart from teaching, only few of the Applicants viz. Applicant No. 38-Ms.Sejalben Joshi and Application No. 30-Mr.S.C.Chavda were occasionally given the additional duties. Apart from teaching, on regular basis, all the recruitees are required to perform additional duties, such as: (i) Taking students to education trip. (ii) Preparing examination papers. (iii) Paper’s evaluation. (iv) Preparing assignments for students. (v) Going for election duties. (vi) Supervision duties in examinations. 11. In the present case, the appellants, who possess a Post Graduate degree in the concerned subject with 50%, are appointed as Vyakhyata Sahayak in the Government Colleges on contractual basis, and they are exempted from passing the examination of NET/SLET/GSET/Ph.D. 12. The mode of recruitment of the appellants is also different as each of them are appointed through respective Selection Committee through Walk-in-Interview process, carrying 90 marks, whereas even in the case of Adhyapak Sahayaks, who are working in Non- Government Colleges, the selection is done through a Central Recruitment Process, wherein the merit list is prepared based on the marks obtained (out of 95 marks) at UG level, PG level and any further qualification, such as M.Phil, NET, GSET, followed by interview, carrying 5 marks. 13. 13. The appellants are appointed as per the provisions of Resolution dated 26.06.2008, on contractual basis for the period of 11 months till regularly selected candidates through GPSC are available and they are given the fixed pay. Whereas, the Adhyapak Sahayaks, are appointed as per Resolution dated 25.08.2005 initially on a fixed-pay for a terms of 5 years, and thereafter they can be considered for being absorbed as regular appointee in regular pay- scale. The place of posting Vyakhyata Sahayaks - appellants is also different, since they are appointed in the Government Colleges in the streams of Arts, Commerce, Science, whereas Adhyapak Sahayaks are appointed in Non-Government, Grant-in-aid Colleges in different streams. 14. The nature of duties is also different. Thus, the appellants, who in the Civil application, have demanded to be treated at par with Adhyapak Sahayaks cannot compare themselves to such Adhyapak Sahayaks due to various factors as mentioned above. In the captioned Letters Patent Appeals and the writ petitions, they want themselves to be treated at par with Lectures, who are appointed through more rigorous recruitment process, and are more qualified. Hence, they cannot claim permanency/ regularization or equivalent minimum of the pay-scale neither to that of Lecturers or to that of Adhyapak Sahayaks looking to their nature of appointment, qualifications, duties etc. In the group of present matters which comprises the number of Vyakhyata Sahayaks, there may be few, who may have been assigned duty of Lecturer on some occasion, however, the same by itself cannot be made the foundation for conferring minimum of pay scale of Lecturers. The case of each of the appellant is to be examined individually in light of his or her qualifications, mode of recruitment, nature of duties assigned, conditions of appointment, availability of sectioned posts, Rules governing regularization, etc. The judgment dated 14.02.2023 and in case of Jagjitsingh (supra) cannot come to the rescue of the appellants because of the factors as narrated herein above. The Supreme Court has invoked the principles of “equal pay for equal work” in case of temporary employees (ad hoc, daily wagers, contractual, alike) on the ground that they were discharging same duties and responsibilities to that of regular employees. In the present case, there is vast difference between the duties and responsibilities between the appellants and the regular Lectures. Hence, they are not entitled to minimum of the pay scale of lectures. 15. In the present case, there is vast difference between the duties and responsibilities between the appellants and the regular Lectures. Hence, they are not entitled to minimum of the pay scale of lectures. 15. The minimum of the pay-scale equivalent to the regular pay scale which a regular employee is getting cannot be conferred to a contractual employee who is working for particular hours or rendering the duties as per his contract. 16. As noticed herein above, the mode of recruitment and the requisite qualifications which are required for regular Lecturers or even in cases of Adhyapak Sahayaks is also different and the present appellants cannot equate their cases with those Adhyapak Sahayaks or Lecturers who have been appointed through different process. 17. Hence, we do not find any merit in the submissions advanced by the learned advocate for the appellants seeking minimum of the pay-scale of the post of Lecturers. Hence, the appeals fail. 18. Liberty is reserved in favour of the appellants to claim the arrears of the basic wages, which has been conferred to them vide Resolution dated 02.08.2024. 19. Consequentially, all the connected Civil Applications also stands disposed of.