COMMISSIONER OF HIGHER EDUCATION Vs. SHETH SHUBHASBHAI KANCHANLAL

JUDGEMENT

(1.) RULE. Mr. Dilip Rana, learned Advocate waives service of rule on behalf of respondent No. 1 original applicant. Ms. V. D. Nanavati, learned Advocate waives service of rule on behalf of respondent No. 2. Mr. Dipen Desai, learned Advocate waives service of rule on behalf of respondent Nos. 3 and 4. With the consent of the learned Advocate appearing on behalf of the respective parties, the petition is taken up for final hearing today.

(2.) BY way of this petition under Article 227 of the Constitution of India, the petitioners Commissioner of Higher Education and Director of Pension have prayed for an appropriate Writ, direction quashing and setting aside the impugned judgment and order dated 16. 04. 2008 in Application No. 48 of 2007 passed by the Gujarat Affiliated Colleges Services Tribunal, Ahmedabad ('the Tribunal' for short ).

(3.) DISPUTE centerers around whether post of Computer Programme which was held by respondent No. 1 original applicant is teaching staff or non-teaching staff. If it is considered that post in question is in teaching staff, in that case, question would be whether respondent No. 1 original applicant is to be retired on attaining the age of 62 years. Number of submissions have been made on behalf of the respective parties. However, at the end of submissions, learned Advocates appearing on behalf of the respective parties have jointly submitted under the instructions of respective clients that let the impugned order passed by the learned Tribunal be set aside and the matter be remanded for deciding the said application afresh in accordance with law and on merits, after reserving liberty in favour of respective parties to file reply and lead additional further evidence. Mr. Dilip Rana, learned Advocate appearing on behalf of respondent No. 1- original applicant has submitted that original applicant is ready and willing to serve as Computer Programmer without claiming any salary and other emoluments subject to the ultimate outcome of the application by the Tribunal on remand and if ultimately application is allowed and it is held that applicant is to be continued in service upto 62 years, in that case, further consequences shall follow with respect to payment of salary and emoluments to the petitioner treating the petitioner in service upto 62 years. If ultimately, the petitioner loses in the main application and it is held that retirement age for the petitioner is 58 years, in that case, though the petitioner has worked, the petitioner shall not claim any salary and emoluments and claim any equity and shall not claim salary on the principle of quantum meruits. Mr. Dilip Rana, learned Advocate appearing on behalf of respondent No. 1 original applicant has further submitted that so far as salary for the period between from the date of reinstatement pursuant to the order passed by the learned Tribunal till 01. 09. 2009 is concerned, the question with respect to payment of salary for the said period be kept open and same shall be decided subject to ultimate outcome of the decision by the learned Tribunal. Mr. Rana, learned Advocate appearing on behalf of the respondent No. 1 original applicant has filed Undertaking affirmed by respondent No. 1 original applicant to the aforesaid effect. Undertaking is directed to be taken on record. Respondent No. 1 original applicant is also personally present in the Court.