Jayantibhai Bhagabhai Patel vs The Present Application Is Filed ...

1.0 The present application is filed by the applicants for the prayers stated in the application inter alia that the petitioner is not paid the salary without any fault on his part.

2.0 Heard learned advocate Ms. Mamta Vyas for the applicant and learned Assistant Government Pleader Mr. Rashesh Rindani for respondent No. 1 and 2. No one is present for respondent Nos. 3, 4, 5 and 6.

allowed with a direction to restore the appointment and posting of the petitioner and the order passed by the Joint Director, Higher Education dated 04.04.2013 was quashed and set aside. However, in spite of this order, learned Advocate Ms. Mamta Vyas for the applicant has stated that applicant­petitioner has not been allowed to resume his duty by respondent Nos. 3 and 5 and, therefore, he is also not getting the salary. She therefore, submitted that as the applicant­petitioner without any fault, finds difficulty in surviving and meeting with the regular expenses and, therefore, the present application is filed as the effect is not given to the judgement and order in the main matter being Special Civil Application No. 11687 of 2013.

4.0 Learned Assistant Government Pleader Shri Rashesh Rindani for respondent Nos. 1 and 2 submitted that in fact respondent no. 1 may not be saddled with the liability as actually the applicant­petitioner has not worked and therefore, cannot claim salary without any work. He has also submitted that in any case, they had in fact pointed out at the time of hearing of main matter that respondent No. 4 was directed to allow the applicant­petitioner to resume the duty which has not been allowed in spite of such direction by the Government. He therefore, submitted that as the applicant­petitioner was not allowed to be joined by respondent No.4, in fact the notice has been issued by the State by Page 2 of 5 HC-NIC Page 2 of 5 Created On Fri May 06 01:50:12 IST 2016 C/MCA/265/2016 ORDER respondent No.2 to respondent No.4 which has been challenged by respondent no. 4 by filing Writ Petition being Special Civil Application No. 1057 of 2014.

5.0 In view of this submission, and having regard to the background of the facts, the submission of the learned advocate for the applicant­ petitioner that the petitioner may not suffer without any fault requires consideration. As it is evident from the order in the main matter being Special Civil Application Application No. 7236 of 2016 and allied matters including Special Civil Application No. 11687 of 2013, the order of the Joint Director, Higher Education dated 01.04.2013 is quashed and set aside and the applicant­petitioner had been ordered to be restored to the post of Principal which would naturally be followed by all necessary benefits like the salary etc. as the the same has not been given effect to, present application is filed.

6.0 Learned Assistant Government Pleader Shri Rashesh Rindani for respondent Nos. 1 and 2 has also confirmed that they had instructed respondent No. 4 to allow the applicant­petitioner to join and resume the duty and sill he has not been allowed. It is evident that the applicant­ petitioner could have been allowed to resume the duty by respondent No. 4 as per the instruction of the respondent­ Government. The institution like respondent No. 4 is getting the full salary grant from the Government and therefore, they have not to pay out of their pocket as Page 3 of 5 HC-NIC Page 3 of 5 Created On Fri May 06 01:50:12 IST 2016 C/MCA/265/2016 ORDER pointed out by learned Assistant Government Pleader Shri Rashesh Rindani for respondent Nos. 1 and 2. He referred to the order dated 24.02.2014 and submitted that respondent No. 4 was directed to make the payment and send the salary bill so that further steps could be taken. Learned Assistant Government Pleader Shri Rashesh Rindani for respondent Nos. 1 and 2 has stated that this direction/order has been challenged by respondent No.4 and it is a subject matter of Special Civil Application No. 1057 of 2014.

7.0 Thus, whether the respondents have any grievance or not, the order passed by the Court in aforesaid Special Civil Application No. 11687 of 2013 has to be implemented. As the said order has not been stayed or challenged before the higher forum, it is required to be implemented in its true spirit giving further effect to the order regarding restoration of the applicant­petitioner to the post and payment of salary with consequential benefits. As stated by learned Assistant Government Pleader Shri Rashesh Rindani for respondent Nos. 1 and 2 that in spite of communication and the order dated 24.02.2014, respondent No. 4 had not allowed the applicant­petitioner to resume the duty which suggests the indifferent attitude.

8.0 Again during the pendency of the petition when the applicant­ petitioner was willing to join and work, he has not been allowed to resume duty by respondent No.4 and therefore, it cannot be argued that Page 4 of 5 HC-NIC Page 4 of 5 Created On Fri May 06 01:50:12 IST 2016 C/MCA/265/2016 ORDER the applicant has not worked and therefore, on the principle of 'No work no pay, he should not get any salary. It is not the question of non­ working as the applicant­petitioner was willing to work but was not permitted to work.

9.0 Therefore, respondent No. 4 is directed to send the pay bills regarding the salary of the applicant­petitioner to respondent No.2 within a period of one week and respondent no. 2 within a further period of one week clear the same and the salary shall be released by respondent No.4 without any further delay. It is clarified that it will be open for respondents No. 1 and 2 to take appropriate steps or measure with regard to cut in grant or adjustment of said amount in the grant payable to respondent No.4 in accordance with law and also subject to the orders, that may be passed in Special Civil Application No. 1057 of 2014. It is clarified that pendency of the aforesaid Special Civil Application No. 1057 of 2014 shall not be a ground for any kind of delay in the payment and respondent No.4 shall send the bills as directed hereinabove at the earliest.

10.0 The present application stands allowed to the aforesaid extent. Direct service is permitted.

(RAJESH H.SHUKLA, J.) niru* Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri May 06 01:50:12 IST 2016