Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(Guj) 607

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Vikram Nath, J.B. Pardiwala, JJ.
Mahavirsinh Narapatsinh Jadeja - Appellant
Versus
Saurashtra University & 1 others - Respondents
R/Letters Patent Appeal No. 337 of 2020 In R/Special Civil Application No. 21449 of 2019 With Civil Application (For Interim Relief) No. 1 of 2020
Decided On : 28-07-2020

Advocates Appeared:
For the Appellant : Mr. Anand B Gogia, Ms. Kajal L. Kalwani.
For the Respondent: Mr. A.R. Thacker.

Point of Law:
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.

Headnote:
Letters Patent Act - Clause 15 - Gujarat Educational Institutional Services Tribunal Act, 2006 -Section 11 - Grant of regular pay scale – To grant the regular pay scale to the petitioner(s) as prescribed and payable by Respondent No. 1 University and / or State Government to its employees of the post which the petitioner is holding; with deemed effect by considering the entire service as rendered by him on fixed pay basis as regular service for all purpose including of pensionary benefits and all other consequential benefits – Whether can be granted.
Facts of the Case:
The appellant herein came to be appointed as a 'Postal Assistant' on the establishment of the Saurashtra University on 4th September 1997 on a fixed pay. It is the case of the appellant that at the time of his appointment, he was called for interview, and thereafter, came to be appointed. It is his case that the University had been paying salary to him till the time of his termination from the service. The salary was being paid from the grant received from the State Government.
Finding of the Court:
unlike an appeal, in general, a intra-Court appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined afresh by the appellate Court, what is really examined, in a intra-Court appeal, is the legality and validity of the Judgment and/ or order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the single Judge, which should, normally, be allowed to prevail. Hence, the impugned judgment of the learned Single Judge should not be completely ignored and this Court has to consider the judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail.
Result: Appeal dismissed

JUDGMENT :

J.B. PARDIWALA, J.

1. This appeal under Clause 15 of the Letters Patent Act is at the instance of an unsuccessful writ applicant and is directed against the order passed by a learned Single Judge of this Court dated 29th June 2020 in the Special Civil Application No.21449 of 2019, whereby the learned Single Judge declined to entertain the writ application filed by the writ applicant on the ground that the writ applicant has an alternative efficacious remedy of filing an appeal under Section 11 of the Gujarat Educational Institutional Services Tribunal Act, 2006 (for short, “the Act, 2006”).

2. The facts giving rise to this appeal may be summarised as under:

2.1 The appellant herein came to be appointed as a 'Postal Assistant' on the establishment of the Saurashtra University on 4th September 1997 on a fixed pay. It is the case of the appellant that at the time of his appointment, he was called for interview, and thereafter, came to be appointed. It is his case that the University had been paying salary to him till the time of his termination from the service. The salary was being paid from the grant received from the State Government.

3. It appears that the appellant herein had to come before this High Court by way of filing the Special Civil Application No.10020 of 2018 with the following prayers:

““(i) to grant the regular pay scale to the petitioner(s) as prescribed and payable by Respondent No. 1 University and / or State Government to its employees of the post which the petitioner is holding; with deemed effect by considering the entire service as rendered by him on fixed pay basis as regular service for all purpose including of pensionary benefits and all other consequential benefits, as per the law laid down by the Hon'ble Gujarat High Court GLH 321 para-38 and such other decisions”

(ii) to direct Respondents to grant regularization and permanency to the petitioner with deemed effect from the date of his appointment with all the consequential benefits in terms of the service conditions as applicable to similarly situated University Employees.”

4. Thus, in the first round of litigation, the appellant herein raised the issues relating to regular pay scale, regularisation in service, etc.

5. The Special Civil Application No.10020 of 2018 and allied petitions came to be disposed of by a learned Single Judge of this Court vide the judgement and order dated 7th May 2019. The operative part of the judgement reads thus:

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

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

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

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

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

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

(vi) It would be further open for the petitioners to seek

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2020 Supreme(Guj) 607

Cases Referred (9)