C/SCA/10302/2017 ORDER DATED: 24/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 10302 of 2017 ========================================================== HEMANGINI NILESHBHAI DESAI Versus BILLIMORA VIBHAG KELAVANI MANDAL & ORS. ========================================================== Appearance: MR.SUBHASH G BAROT(2619) for the Petitioner(s) No. 1 MS. DEVANSHIBA RANA, ADDL. GOVERNMENT PLEADER for the Respondent(s) No. 4 MR CJ VIN(978) for the Respondent(s) No. 3 MR RAVINDRA SHAH(1299) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Date : 24/07/2025 ORAL ORDER 1. On 02.08.1993, the petitioner was appointed as a part time lecturer in the respondent No. 2 - College. This appointment as part time lecturer was, in fact, approved by the University as well as by the Education Department. 2. On 25.01.2001, the petitioner was served with a show cause notice in which it was stated that the Institution was terminating her on the ground that it had no workload. However, for this proposed termination, the institution was required to obtain the approval of the University. The University, however, refused to grant approval for such termination, as a result of which, the Institution preferred an appeal challenging the order of the University in refusing the permission to the C/SCA/10302/2017 ORDER DATED: 24/07/2025 Tribunal. 3. The Tribunal, by an order dated 29.08.2003, dismissed the appeal of the Institution thereby confirming the order of the University refusing permission to terminate the services of the petitioner. It is therefore clear that though there was a clear intent of the Institution to terminate the service of the petitioner from 2001, by virtue of the refusal of the university, her termination could not be given effect. 4. The Institution challenged the order of the Tribunal by preferring SCA No. 14433/2003 before this Court. This Court, by an order dated 09.01.2004, set aside the order of the University as well as order passed by the Tribunal and remanded the matter to the Vice Chancellor of the University for reconsideration. 5. The Vice Chancellor, on remand, did not take any decision within 45 days, prompting the Institution to approach the Vice Chancellor to take a decision. It is admitted by all the learned Counsels that the Vice Chancellor pursuant to this request passed an order to the effect that the services of the petitioner may be continued if the Institution and the petitioner had no objection and he also observed that if there was a change in the policy of the government in the matter of affording any protection to the petitioner, who was a part time lecturer, the C/SCA/10302/2017 ORDER DATED: 24/07/2025 same should be extended to her. 6. 6. It is therefore clear from this order that the University did not grant permission for termination of the employee and the University basically passed an order which essentially stated that the service of the petitioner could be continued if there was a consent or if there was a change in the policy, the benefit therein should be extended to the petitioner. The University, however, did not grant approval for the termination of the petitioner, even on remand. 7. The Institution, however, came to the conclusion that since the Vice Chancellor had not taken a decision within 45 days there was a deemed approval for terminating the service of the petitioner and accordingly passed an order on 23.05.2006 terminating the services of the petitioner. The Institution thereafter proceeded to once again seek approval of the Vice Chancellor for the termination. In essence, the Institution sought for a post facto approval of its termination of the services of the petitioner. 8. The petitioner challenged the order of the termination by approaching the Tribunal in appeal No. 29/2006. 9. It is not in dispute that in this appeal the petitioner did seek for an interim injunction directing the opponents i.e. Institution and the Department not to enforce the order dated 22.05.2006 C/SCA/10302/2017 ORDER DATED: 24/07/2025 i.e. the order of termination and also do direct them to report the petitioner for duty at the Institution and to continue pay her regular monthly salary of Rs. 7,500/-. 10. It is also not in dispute that the Tribunal did grant the injunction as prayed for on 12.06.2006. As a matter of fact, the Institution sought for a vacation of this interim order but the same was refused by the Tribunal by its order dated 02.04.2007. It therefore follows that the services of the petitioner was, in law, protected and she was also required to be paid the wages for the period during which the interim order was in subsistence. 11. It, therefore, emerges from the above set of facts that, firstly, the Institution did not have the express approval of the university for terminating the services of the petitioner and secondly, there was an order of injunction and operation in the appeal filed by the petitioner to take her back to duty and continue to pay her salary of Rs. 7,500/- which was in fact confirmed by the rejection of the application for vacating which have been filed by the Institution. 12. It is also not in dispute that the subsequently, an order was passed on 16.07.2009 directing the Commissioner of Higher Education to take a decision regarding the services of the petitioner within the stipulated period. In fact in this order, the C/SCA/10302/2017 ORDER DATED: 24/07/2025 Tribunal has recorded as follows: “So, in this way, she is continued in the service of the Respondent collage, but salary w.e.f. July, 2005 till date is not paid to the Applicant.” 13. It is therefore, clear that despite an order of injunction, the service of the petitioner was continued and yet she was not paid any salary. 14. The Tribunal, ultimately, by the impugned order has dismissed the appeal of the petitioner on the ground that the petitioner, during the pendency of the appeal, had been treated as surplus and had been accommodated in a regular Institution. However, while dismissing the appeal, the Tribunal has also proceeded to observe as follows (as per the the copy of the translated order that is furnished to the Court). “The applicant has asked for interim salary, but as per the discussion above, it is clear that no salary or benefit or other payment can be made to a part-time lecturer when there is zero workload and there is no provision for such protection against relieving her, therefore there is no scope to pay her salary when there is no workload. Moreover, the University has also accepted in its order dated 17-4-2004 that if the applicant does not have workload but she is getting the protection of surplus, then that matter should be C/SCA/10302/2017 ORDER DATED: 24/07/2025 checked and since there is no provision regarding the policy of protection of surplus, no benefit should be given and there is no provision for giving salary without taking work when there is zero workload and there is also no provision for payment against work in the circular dated 19-12-2001 of the Government and the resolution of April, 2004. If the workload is 3 to 10 hours and the lecturer is part-time, the remuneration should be based on the number of years of experience. Since there is no question of paying her salary for the period when she did not have any work, the question of paying her salary does not arise and therefore, the relief sought by the applicant is not eligible for payment. Therefore, the following order is made.” 15. The Tribunal, no doubt, was not required to examine the merits of the termination since the service of the petitioner had been absorbed in another college. However, the Tribunal could not have passed the above mentioned order depriving the petitioner of the benefit that she had obtained under an interim order. As already noticed above, there was no approval for the termination of the petitioner services and an attempt made by the institution for vacating the injunction granted in favor of the petitioner was also refused. 16. The legal effect of this is that the petitioner was deemed to C/SCA/10302/2017 ORDER DATED: 24/07/2025 have continued in service from July-2005 till she was accommodated in another college in the month of December 2011. It also therefore consequentially follows that the petitioner was required to be paid the salary in the light of the interim order that was granted by the tribunal. 17. The Tribunal, which had granted the interim order, and which had refused to vacate the interim order was legally obliged to ensure that the interim relief granted by it was actually received by the petitioner. The Tribunal, while dismissing the appeal because of an extraneous event i.e., the petitioner having been accommodated in a regular institution by virtue of being treated as surpluses could not have made an order which undid the interim relief it had granted. In fact, this portion of the order, basically rewarded the institution which had disobeyed the interim order. This portion of the order, i.e., para 8 of the order which is extract above, refusing the relief which had already been granted and had been confirmed by the Tribunal in favour of the petitioner, during the pendency of the appeal, is obviously bad and cannot be sustained. 18. Learned Counsel for the Institution however submits that since the petitioner was unable to discharge work as there was zero workload, the Tribunal was justified in making this observation and depriving the petitioner of her salary for the C/SCA/10302/2017 ORDER DATED: 24/07/2025 period from 2005 to 2011. He also sought to contend that there was a circular of the government which had also stipulated that the government would not be responsible for payment of the salary if there was no workload and therefore either way the petition was not entitled for any salary. 19. In my view this argument is required to be rejected in its entirety. Here is a case in which the services of a petitioner had been wrongfully terminated i.e. without the approval of the university and the petitioner had approached the court and had secured an interim order which constrained the institution to continue her services and pay her salary. The institution was therefore required to take back the petitioner into duty and raise periodical bills to the government so that the petitioner could get her emoluments. However, the institution has chosen not to follow this approach and flouted the interim order by taking her back to duty and ensure that she was paid her salaries, despite the fact that its request to vacate the interim order was refused. 20. Learned Counsel for the petitioner pointed out that after the petitioner was accommodated in another institution, the institution, in fact, refused to relieve her to enable her to join to the new institution. Learned Counsel for the institution did not dispute this fact but sought to contend that there was no C/SCA/10302/2017 ORDER DATED: 24/07/2025 question of relieving the petitioner since she had already been terminated by the order dated 23.05.2006. If the petitioner had the benefit of an injunction which restrained the institutions from giving effect to the order of termination and when the Tribunal had categorically observed that she had continued in service, this argument that the Institution had terminated her services and therefore was not required to receive her would be wholly untenable. 21. It is clear from the above set of facts that it was the intention of the institution to harass the petitioner from the very beginning. The fact that the institution refused to relieve her despite her having secured employment elsewhere is only indicative of the fact that it did not want to help the petitioner in any manner. I am therefore of the view that this conduct of the institution is to be deprecated, more so, when the salary was required to be paid by the government and not by the institution. The institution was, in law, required to obey an order of the Tribunal and could not have disregarded the order of the tribunal. The Tribunal, while holding that the petitioner had been accommodated elsewhere could not have nullified the interim relief that it had been granted to the petitioner and also confirmed it, so as to benefit the institution and absolve it of its wrongdoing. C/SCA/10302/2017 ORDER DATED: 24/07/2025 22. I am therefore of the view that, this is a fit case to impose costs of Rs. 1,00,000/- (Rupees One Lac Only) upon Respondent No. 1 and 2. This sum shall be paid by the respondent no 1 and 2 to the petitioner within 4 weeks from today. 23. As a consequence, the order of the Tribunal which holds that the petitioner is not entitled for the benefit of interim salary from July 2005 to December 2011 i.e., para 8 of the order of the Tribunal is quashed. 24. The State government, which is the ultimate authority to pay the salary to the petitioner for the period from July-2005 till December-2011 at the rate of Rs. 7,500/- per month, shall compute the said arrears and pay the same to the petitioner within a period of three months from the date of receipt of copy of this order. (NSSG,J) Mehul Desai Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: MEHULKUMAR BHIMABHAI DESAI(HCD0075), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 28/07/2025 18:09:10