1. By way of these petitions, petitioners of Special Civil Application Nos.3659 of 1999, 3666 of 1999 and 3667 of 1999 have prayed for following reliefs:
“(A) To quash and set aside the order of the Tribunal at Annexure-'A' with regard to not reinstating the petitioner in service will full back wages and the respondents may be directed to re-instate the petitioner in service with full back wages.
(B) Pending hearing and final disposal of this petition, the respondents may be directed to take the petitioner in service forthwith and continue the petitioner in service.
2. Petitioner of Special Civil Application No.2812 of 2001 has prayed for following reliefs:
“(A) Be pleased to admit this petition;
(B) Be pleased to quash and set aside the order passed by the Gujarat Secondary Education Tribunal in application No.277, 278, 279 of 1993 and contempt application therein for awarding the back wages to the respondents by partly allowing the applications and/or to stay the order passed by the Tribunal dtd. 23.3.1999 in application No.277 to 279 of 1993.
(C) Pending hearing and final disposal of this petition, Your Lordships may kindly stay the order passed by Tribunal dtd.23.3.99 in application No.277 to 279 of 1993.
3. Brief facts leading rise to the present petitions are as under:
3.1 Petitioners of Special Civil Application Nos.3659 of 1999, 3666 of 1999 and 3667 of 1999 were given appointment in the respondent Nos. 1 and 2 School. Since the petitioners were not paid the salary as prescribed under Regulation No.24 of the Secondary Education Regulation, 1974, the petitioners have demanded the full salary as per the said regulation. The service of the petitioners therefore, terminated on 28th June, 1993. They have, therefore, filed application before the Gujarat Secondary Education Tribunal challenging the action of respondent Nos.1 and 2 School in orally terminating their service with effect from 28th June, 1993 as the same being illegal, null and void. They have also prayed for direction to the respondents to pay to the petitioners full salary and other consequential benefits.
3.2 After hearing the parties and after considering the evidence on record, the Gujarat Secondary Education Tribunal by its judgment and order dated 23.2.1999, partly allowed the application of the petitioners whereby the prayer of the petitioners for reinstatement was rejected and it was held that the petitioners are entitled to full salary from the date of appointment till the date of the order. The said order of not reinstating the said petitioners is challenged in the above petitions.
3.3 Petitioners of Special Civil Application No.2812 of 2001 are running the Secondary School and they are challenging the order passed by the Gujarat Secondary Education Tribunal dtd. 23.3.1999 in Application No.277 to 279 of 1993 along with contempt application therein where the Tribunal has partly allowed the said applications by awarding full back wages from the date of application though the claim for reinstatement is rejected. It is the case of the Management that the respondents are not employees of the petitioners school. It is further the case of the management that the respondents were not employees of the petitioners School, therefore, question does not arise for paying salary. It is further their case that in fact respondents were worked for some time in the primary section and therefore, the Tribunal has no jurisdiction to entertain the application No.277 to 279 of 19993. Therefore, the petitioners are constrained to challenge the said order because the respondents have filed writ petitions No.3659, 3666 and 3667 of 1999, wherein, the interim relief is issued and petitioner school is facing Contempt Application No.360 of 2000.
4. Mr.Dave, learned counsel for the employees- petitioners of SCA Nos. 3659, 3666 and 3667 of 1999 contended that the Tribunal has committed an error in not granting reinstatement though order of the termination was passed without following any procedure as prescribed under the Gujarat Secondary Education Act.
5. He further contended that the Tribunal has also committed an error in not passing order under Section 35(2)(A) of the said Act in spite of the injunction granted by the Tribunal on 31st March, 1993. He further contended that Tribunal ought to have granted back wages. Tribunal has committed an error in not granting wages for interregnum period which is contrary to the decision of the Hon'ble Supreme Court of India.
6. Learned counsel for the respondent Mr.Pujara along with Mr.Oza in SCA No.2812 of 2001 contended that the Tribunal has committed an error in issuing direction in para-13, which reads as under:
“13. In view of my observations herein above, applicant would have been entitled to receive their salaries on the principle of quantum merit only till the date of their termination i.e. 31st May, 1993. But in view of the fact interim injunction of this Tribunal was in force by virtue of which applicants were not only required to be continued in the school but there was a specific order that they shall be paid regularly and therefore, in my view, applicants will be entitled to their salaries till today i.e. 23rd March, 1999”.
7. When he contended that Tribunal itself has rejected the claim of reinstatement and back wages, for the interim period, the Tribunal ought not to have granted in view of observations made by Hon'ble Supreme Court of India in the case of State of West Bengal and others V/s. Banibrata Ghosh and others reported in (2009) 3 SCC 250, more particularly in para Nos.28 and 29, which read as under:
“28. We also do not understand, as to how, the Division Bench could be impressed by the fact that the interim order was not appealed against by the State Government. It is to be understood that an interim order does not decide the fate of the parties to the litigation finally, it is always subject to and merges with the final order passed in the proceedings. The non-filing of the appeal, which seems to have impressed the Division Bench, according to us, is of no consequence.
29. The Division Bench also seems to have been impressed by the fact that the Learned Single Judge dismissed the petition in 2003, though the appointment was made way back in 1993. The mere pendency of the Writ Petition cannot be viewed against the State Government, which could not be said to be responsible for such long pendency and that could not be viewed in favour of the original Writ Petitioner (respondent herein). That logic of the Division Bench is completely faulty. We are also no less surprised by the direction of the Division Bench that since the respondent no.1 herein was not allowed to remain in service pursuant to the impugned order of the Learned Single Judge, he should be paid 50% of the back wages for the period for which the respondent was out of service. Such could never have been the course taken in view of the settled principle of “no work no pay”.
8. Heard learned advocates for the respective parties.
9. From the record, it seems that the appointment made by the Institution, in para 9 of the order of the Tribunal, is dehors the provisions of the Act. Therefore, Tribunal has come to the conclusion that since the appointments were not made as prescribed under the Act, it is well settled that only those employees validly appointed are entitled to protection under the Act.
10. In the result, petition of the management, namely, SCA No.2912 of 2001 requires to be allowed. The direction issued for the payment to be made from 31st May, 1993 to 23rd March, 1999 is required to be quashed and set aside and therefore, the same is quashed and set aside. Rule made absolute qua SCA No.2912 of 2001.
11. Special Civil Application Nos.3659 of 1999, 3666 of 1999 and 3667 of 1999 filed by the employer stand dismissed. Rule is qua SCA Nos.3659, 3666 and 3667 of 1999 discharged. Interim relief, if any, stands vacated.
(K.S.JHAVERI, J.) (ashish)