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2025 DIGILAW 297 (GUJ)

Shukla Shilpa Vinodrai v. Municipal Commissioner

2025-03-19

BIREN VAISHNAV, HEMANT M.PRACHCHHAK

body2025
JUDGMENT : (BIREN VAISHNAV, J.) 1. In all these appeals filed by the Rajkot Municipal Corporation as well as the employees challenge is to the the order of the learned Single Judge dated 21.10.2019. 2. Briefly stated, the employees who are the applicants before the Gujarat Secondary Education Tribunal, had approached the Tribunal seeking relief of regularization and pay-scale. It was their case that, they were performing duties with the Corporation on a fixed remuneration. They were entitled, according to them, to a regular salary in a regular pay-scale. They, accordingly, have prayed for regularization. 2.1 The Tribunal by separate orders in each of the applications partly allowed the applications, inasmuch as the relief of regularization was refused, whereas, the Tribunal granted ‘equal pay for equal work’. Those orders of the Tribunal were challenged by the Corporation and by some employees. 2.2 The learned Single Judge by the Judgment under challenge confirmed the orders of the Tribunal in so far as it denied regularization, however, the learned Single Judge directed the Corporation to grant minimum of pay-scale, which is extended to a regular teacher, to the respondent teachers from the date of their initial appointment instead of regular salary as ordered by the Tribunal. Para-20 of the order reads as under : “20. On the backdrop of the aforesaid observations and in light of the directions in the case of Jagjit Singh (Supra) the present writ petition is allowed in part. The petitioner- Corporation is directed to grant minimum of the pay scale ( at the lowest grade, in the regular pay scale), which is extended to the regular teacher to the respondent-teachers from their date of their initial appointment instead of regular salary as ordered by the Tribunal. The petitioner-Corporation is also directed to fix and revise their retirement benefits accordingly and pay necessary arrears to them in the cases of retired teachers. The entire exercise shall be undertaken within a period of three months from the date of receipt of a copy of this order, and the necessary orders in terms of the directions of this Court shall be passed within the stipulated time. The judgment and order of the Tribunal is modified to the aforesaid extent.” 3. Learned counsel Mr. The entire exercise shall be undertaken within a period of three months from the date of receipt of a copy of this order, and the necessary orders in terms of the directions of this Court shall be passed within the stipulated time. The judgment and order of the Tribunal is modified to the aforesaid extent.” 3. Learned counsel Mr. Gadhia, appearing for the appellants in the appeals at the hands of the Corporation, would submit that since there was no pleading for equal pay for equal work to claim entitlement, the Tribunal as well as the learned Single Judge committed an error in granting relief as prayed for, moreover the learned Single Judge directed to grant minimum of pay-scale from the date of their initial appointment when they were not regularly selected, such a direction is contrary to law. The employees in their turn have challenged the order of the learned Single Judge on the ground that granting of minimum pay-scale was not correct and regular salary ought to have been granted. 4. We note that pending the appeals on the appeals being admitted, this Court on 13.07.2022 passed the following order : “ R/LETTERS PATENT APPEAL NO. 815, 816, 817, 818, 819, 820 & 821 of 2022 : ADMIT . Ms.Mamta Vyas, learned advocate waives service of admission on behalf of respondent No.1. To be heard with Letters Patent Appeal No.625 of 2020. ALL CIVIL APPLICATIONS (FOR STAY) NO. 1 of 2020 : 1. Rule. Ms.Mamta Vyas, learned advocate waives service of Rule on behalf of respondent No.1. 2. Having heard Mr.Kamal Trivedi, learned Advocate General with Mr.K.V.Gadhia, learned advocate for the appellants and Ms.Mamta Vyas, learned advocate for respondent No.1, we deem it fit to pass following order, subject to rights and contentions of both the parties: “As far as arrears of salary is concerned, the Corporation shall pay 50% of arrears to each of the respondents, within a period of eight weeks from today and remaining 50% amount towards arrears shall be deposited with the registry of this Court. Registry shall invest the same in any Nationalised Bank initially for a period of five years and renew the same till final disposal of these appeals. Interest accrued thereon shall not be disbursed to anybody. As per direction, Corporation shall pay the salary to the respondents from 01/07/2022.” 3. Registry shall invest the same in any Nationalised Bank initially for a period of five years and renew the same till final disposal of these appeals. Interest accrued thereon shall not be disbursed to anybody. As per direction, Corporation shall pay the salary to the respondents from 01/07/2022.” 3. With the above observations, all civil applications are disposed of. Rule is made absolute to the aforesaid extent.” 5. In light of this order, according to the directions issued by the Tribunal, 50% of the amount has been paid directly, whereas, 50% of the amount has been deposited before the Registry of this Court. 6. We find on reading of the order of the Tribunal as well as the order of the learned Single Judge that by relying upon the decision of the Supreme Court in case of State of Punjab & Ors. vs. Jagjit singh & Ors., [2016] 10 SCC 447 , the learned Single Judge has held thus : “12. The facts which are not in dispute are that the respondent teachers are/were appointed in the PetitionerSchool between the year 1991 to 1992 on honorary basis and it appears that thereafter, such teachers have been continued since then and some of them have also retired. The petitionerschool is utilizing their service since long and they are also doing similar work to that of regular teachers. It is also an established fact that their wages have been revised intermittently. The sole reason for denying the regular pay to such teachers is that their initial appointment is de hors the regular selection process. Since, they were not being paid the regular salary, they approached the Tribunal seeking benefit of regularization and also regular pay on the principal of “equal pay for equal work”. The Tribunal vide common judgment and order rejected the prayer for regularization, however, the prayer for equal pay for equal work was granted. Ultimately, the proceedings culminated in LPA No.2038/2004 filed by one of the Assistant teachers and by the judgment and order dated 13.04.2005 , the Division Bench has held thus: “We may new revert to the case in hand. Ultimately, the proceedings culminated in LPA No.2038/2004 filed by one of the Assistant teachers and by the judgment and order dated 13.04.2005 , the Division Bench has held thus: “We may new revert to the case in hand. A perusal of the record shows that even though the appellant had claimed before the Tribunal that he was appointed as Assistant Teacher in 1991 after regular selection, no material was produced by him to show that his appointment had preceded compliance of the procedure prescribed under Section 35 of the Act. Even before this Court no material has been produced to show that he was appointed as Assistant Teacher on the recommendations of the staff selection committee constituted under SubSection(1) of Section 35. Therefore, we would not find any valid ground to interfere with the view taken by the Tribunal, which has been afÏrmed by the learned Single Judge that on the basis of his appointment made dehors the statutory provisions, the appellant is not entitled to claim regularization of service. The appellants plea of discrimination merits rejection because (a) he did not produce any material before the learned Single Judge to prove that other Assistant Teachers, whose services were regularised, were recruited on temporary basis by back door method without following the procedure prescribed under Section 35 of the 1972 Act, (b) even if the services of other persons appointed in violation of Section 35 may have been regularised, the Tribunal could not have issued a direction to the management of the School to commit similar illegality in the appellant's case.” The Division Bench has finally observed thus: “For the reasons mentioned above, the appeal is dismissed. However, it is made clear that the observations made by us in relation to the nature of the appellant's initial appointment shall not prejudice his cause in the writ petition filed by the management of the school against the direction given by the Tribunal for payment of regular pay scale to the appellant and other similarly situated persons.” 13. Thus, it is observed by the Division Bench that the initial appointment of the respondent-Assistant Teachers shall not prejudice their cause claiming regular pay scale in the present captioned petitions. Thus, it is observed by the Division Bench that the initial appointment of the respondent-Assistant Teachers shall not prejudice their cause claiming regular pay scale in the present captioned petitions. Though, the prayer for seeking regularization in service was rejected by the Division Bench, the decision was left open for the respondent teachers to claim their regular payscale or equal pay for equal work as directed by the Tribunal in its judgment. 14. It is not in dispute that the respondent teachers are doing similar work to that of regularly selected teachers, and they are denied the regular pay scale since their inItial appointment is irregular. The petitioner has profoundly premised their submission on the provisions of Section 35(7) of the Act 1972 and it is urged that that since the appointments were not made in conformity with the provisions of Section 35 of the Act and as Staff Selection Committee had not selected the candidate, the appointment in question is ineffective. Section 35(7) of the Act, reads as under: “S. 35 (7). Any appointment of a headmaster or a teacher made in contravention of the provisions of this Section shall be ineffective.” The petitioner cannot take shelter under the aforesaid provision for denying the benefit to the teachers for two reasons. Firstly, the petitioner cannot take benefit of their own wrong by saying that the initial appointments done by them was de hors the regular selection. Secondly, even if they are not duly selected as per the prescribed procedure, such selection cannot tarnish their claim for regular pay as per the law enunciated by the Apex Court in the case of Jagjit singh(supra). The school has been exploiting the service of such teachers without any demur for all these years. Until, the teachers voiced their grievance with regard to grant of regular pay, the school authorities came out with an excuse that their irregular appointment cannot confer them the benefit of regular pay. The school has been exploiting the service of such teachers without any demur for all these years. Until, the teachers voiced their grievance with regard to grant of regular pay, the school authorities came out with an excuse that their irregular appointment cannot confer them the benefit of regular pay. I may with profit refer to the observations of the Division Bench of this Court in the judgment dated 6 th February, 2017 passed in Letters Patent Appeal No. 1490 of 2016, wherein the service of a teacher was terminated on the ground that the initial appointment was irregular, The Division Bench after placing reliance on the judgment of the Supreme Court in the case of Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel , reported in AIR 2012 SC 3285 has observed thus; 15. The Tribunal, while allowing the appeal of the respondent No. 4, has referred to the decision rendered by the Hon'ble Supreme Court in the case of Bhartiya Seva Samaj Trust Tr. Pres. And Anr. V/s Yogeshbhai Ambalal Patel and Anr., reported in AIR 2012 SC 3285 . In the said decision, the Hon'ble Supreme Court has held on paragraph No. 21 and 22 as under: 21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ‘allegans suam turpitudinem non est audiendus'. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. 22. Thus, it is evident that the appellant has acted with malice alongwith respondent and held that it was not merely a case of discrimination rather it is a clear case of victimisation of respondent No.1 by School Management for raising his voice against exploitation. 15. Thus, in view of the aforesaid decision rendered by the Supreme Court, it is not open for the petitioners to contend after a period of 26 years they themselves have committed a wrong while appointing respondent No.4 and other similarly situated Assistant Teachers are required to be terminated. If a party has committee wrong, he cannot be permitted to take the benefit of his own wrong. If a party has committee wrong, he cannot be permitted to take the benefit of his own wrong. Thus, the petitionerschool cannot contend after passage of so many years, that the teachers are not entitled to regular pay scale by taking refuge under their own inaction of appointing the respondents de hors the provision of the Act. Despite having such knowledge, the petitioners have utilized the service of the respondents as teachers. The Division Bench was alive of the aforesaid fact when the appeals of the respondent- teachers claiming regularization were dismissed. The Division Bench did not adversely observe anything with regard to the claim of the teachers for equal pay. Thus, the provision of section 35(7) of the Act, can certainly apply to the detriment of the teachers with regard to their claim for regularization, but the same cannot snatch their right of equal pay apro pos other teachers. 16. I shall now endeavor to deal with the applicability of the principle of “equal work for equal work”, to the respondent- teachers in light of the fact that their initial appointments are not made in accordance with the provisions of the Act. At this stage before finally opining on the applicability of the principal in the case of the respondent, I may with profit extract the relevant observations of the Supreme Court in the case of Jagjit Singh(supra).The Supreme Court while deciding an analogous issue, has emphasized that the concept of equality would not be applicable to issues of absorption/regularization. The Supreme Court has extended the principle of “equal pay for equal work”, in relation to the temporary employees, daily wagers, casual, contractual and the like. The Supreme Court has held thus : 53. We shall now deal with the claim of temporary employees before this Court. 54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as workcharge, dailywage, casual, adhoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again. 55. 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, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, 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 dependents 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. 57. Having traversed the legal parameters with reference to the application of the principle of `equal pay for equal work', in relation to temporary employees (dailywage employees, adhoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of `equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difÏcult for us to record the factual position. This exercise would require the application of the parameters of the principle of `equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difÏcult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondentemployees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of `equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the payscale of regularly engaged Government employees, holding the same post. 58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the payscale (at the lowest grade, in the regular payscale), extended to regular employees, holding the same post. 17. The petitionerCorporation has not denied that the respondentteachers are doing the same work and discharging same responsibilities neither before the Tribunal nor before this Court. The sole reason for denying them the regular pay is that their initial appointments are not made as per the provisions of the Act. 17. The petitionerCorporation has not denied that the respondentteachers are doing the same work and discharging same responsibilities neither before the Tribunal nor before this Court. The sole reason for denying them the regular pay is that their initial appointments are not made as per the provisions of the Act. The aforementioned observations of the Supreme Court enunciate that the regular selection is not sine qua non for applying the principal of “equal pay for equal work”. The Supreme Court has emphasized that the principle of 'equal pay for equal work', in relation to temporary employees (dailywage employees, adhoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. Indubitably, the respondents stand on better traction then the daily wagers, contractual and casual employees. Even if their initial appointment can be termed as irregular/illegal, they cannot be denied the benefit of the applicability of the principle “equal pay for equal work”, since the petitionerschool has been the beneficiary of their service despite the nature of their appointment. The Supreme Court has finally issued direction that the employees would be entitled to draw wages at the minimum of the payscale (at the lowest grade, in the regular pay- scale), extended to regular employees, holding the same post. Thus, the provisions of Section 35(7) of the Act cannot come in the way of the respondentteachers in claiming the minimum of the pay scale( at the lowest grade, in the regular pay scale), which is extended to the regular teacher. 18. The reliance placed by the petitioners on the judgment of the Supreme Court in the case of Ramakrishna Kanat(supra) will not rescue them in paying the minimum pay scale to the respondents in view of the subsequent decision of the Supreme Court in the case of Jagjit Singh (Supra). The judgment in the case of Mahavirsinh Narapatsinh Jadeja (Supra) will not apply to the facts of the case since the coordinate bench has dismissed the writ petition claiming equal pay for equal work on the ground of availability of alternative remedy to approach the Service Tribunal. The judgment in the case of Mahavirsinh Narapatsinh Jadeja (Supra) will not apply to the facts of the case since the coordinate bench has dismissed the writ petition claiming equal pay for equal work on the ground of availability of alternative remedy to approach the Service Tribunal. In the present case , the Tribunal has already held in favour of the respondent by applying the principle of equal pay for equal work.” 7. In light of this, in order to see that since we are dealing with money of public exchequer, we modify the order of the learned Single Judge. The granting of minimum of pay-scale shall be with effect from 01.01.2000 instead of the date of initial appointment. This is in light of the fact that applications have been decided in the range from December, 1999 to April, 2000. Therefore, in the interest of justice, the cut-off date of 01.01.2000 is suggested and the order of the learned Single Judge is modified accordingly. Rest of the directions as given by the learned Single Judge shall stand unaltered. 8. The amount which has been deposited in the Registry pursuant to the order dated 13.07.2022 is permitted to be withdrawn by the Corporation. It is clarified that this is on a condition that the modified direction given by us today shall be implemented and complied with in light of the modified directions of the judgment of the learned Single Judge within a period of eight weeks from today. 9. Accordingly, the appeals filed by the Rajkot Municipal Corporation being Letters Patent Appeal Nos. 815 to 821 and 828 of 2022 are partly allowed and the appeals filed by the employees / teachers being Letters Patent Appeal Nos. 625 of 2020 & 630 of 2022 are dismissed. 10. The connected Civil Application also stands disposed of.