Gujarat High Court
Dr.Rajeshkumar D Patel Assistant ... vs State Of Gujarat on 9 October, 2018
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/13034/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13034 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DR.RAJESHKUMAR D PATEL ASSISTANT DIRECTOR(HOMOEOPATHY
Versus
STATE OF GUJARAT
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Appearance:
MR DHAVAL M BAROT(2723) for the PETITIONER(s) No. 1
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 09/10/2018
ORAL JUDGMENT
1. The petitioner has challenged the order dated 21.11.2009 passed by the respondent No.1 whereby, pay protection granted to the petitioner vide order dated 11.10.2007 has been cancelled. The petitioner has also challenged the order dated Page 1 of 9 C/SCA/13034/2009 JUDGMENT 26.11.2009 passed by the respondent No.2 reducing the basic pay of the petitioner from Rs.10,700/- to Rs.8,000/- as on 12.06.2003.
2. Facts leading to filing of this petition are that the petitioner joined Anand Homeopathic Medical College and Research Institute on 01.12.1981 as a Lecturer as well as Head of the Department of Organon of Medicine. The said institute was 100% grant-in-aid institute receiving grant from the State of Gujarat. The petitioner worked with the said institution till 10.10.1998, i.e. the date on which he was promoted as Vice-Principal of the said college. Later on the petitioner was promoted as Principal and Superintendent of the said institute on 19.07.2001 and worked on the said post till 11.06.2003. In the month of June, 2003 he was drawing salary of Rs.10,700/- in the pay scale of 6500-200-10500.
3. The direct recruitment process was carried out by the Gujarat Public Service Commission in the year 2000 wherein, the petitioner had applied for the post of Assistant Director (Homeopathy). It is the case of the petitioner that at the time of submitting application form, the applicant was required to fill the column viz. Column No.16, which gave the applicants right to exercise the option as to whether the applicants were ready to accept the minimum basic pay in the pay scale of Page 2 of 9 C/SCA/13034/2009 JUDGMENT the said post or not. The petitioner had refused to accept the minimum basic pay in the pay scale and demanded protection of basic pay of his last service i.e. at Anand Homeopathy Medical College, Anand i.e. Rs.10,700/- Basic Pay. The petitioner was called for interview and during the said interview also, the petitioner had specifically stated that he is interested in working on the said post only if his pay is protected. The petitioner came to be selected for the post of Assistant Director (Homeopathy) on 29.05.2003. He was put on probation for a period of two years. The petitioner vide letter dated 16.06.2006, addressed to the Director i.e. respondent No.2, requested for grant of pay protection in respect of his last drawn salary at Anand Homeopathic Medical College and Research Institute, Anand. Pursuant to the above request of the petitioner, the respondent No.2 recommended the case of the petitioner for pay protection vide his communication dated 20.06.2003. Respondent No.1 vide its letter dated 20.10.2003, intimated the petitioner that the proposal of the pay protection will be submitted after satisfactory completion of probation period. After completion of the probation period, the petitioner was confirmed vide G.R. dated 04.10.2005 on the said post of Assistant Director (Homeopathy). The State of Gujarat vide its circular dated 17.06.1994, granted relief of pay protection and on the basis of that respondent No.2 vide its Page 3 of 9 C/SCA/13034/2009 JUDGMENT communication dated 10.10.2005, recommended the case of the petitioner for pay protection to the Department of Health and Family Welfare. After due deliberation, the Department of Health and Family Welfare granted pay protection to the petitioner vide its order dated 11.10.2007. The detailed fixation order dated 04.01.2008 came to be issued, protecting the last drawn basic pay i.e. Rs.10,700/- and fixing the the pay scale of the petitioner with the said last drawn basic pay as Rs.10,700/- as on 12.06.2003 for the post of Assistant Director (Homeopathy) with all consequential benefits.
4. On 17.09.2009, the petitioner was asked to show cause why the said benefit of pay protection granted to him should not be cancelled / withdrawn. The petitioner replied to the above notice, however, respondent No.1 passed an impugned order dated 21.11.2009 cancelling the pay protection to the petitioner with immediate effect vide which pay of the petitioner was reduced from Rs.10,700/- to Rs.8,000/-. Vide the said impugned order, further direction was issued to recover the differential pay with retrospective effect. On the basis of these pleadings, the petitioner has approached this Court by way of this petition.
5. The respondents have contested this petition by filing reply stating therein that the Page 4 of 9 C/SCA/13034/2009 JUDGMENT employees of the grant-in-aid institution were not Government Servants and therefore, the Rules / Resolutions and Circulars applicable to the Government Servants were not directly applicable to them by way of resolution of the Department concerned. It is further say of the respondents that the resolution of the Finance Department dated 17.06.1994 was applicable only to the Government Servants working in the Departments / Offices of the Government and joined another post in the Departments / Offices of the Government by regular process of selection. Prior to joining the Government Service, the petitioner was working in a Non- Government institution and therefore, the said resolution dated 17.06.1994 was not applicable in this case as the Government has not issued any order for application of the said resolution to the employees of grant-in-aid institutions.
6. Learned counsel for the petitioner has pointed out that in the application form filled up by the petitioner before joining the service, option was called for, as to what pay scale will be acceptable to the petitioner. The petitioner has specifically mentioned in the Column No.16 of the application form that pay of Rs.10,700/- shall be acceptable to him i.e. the pay which he was drawing from the institution where he was working before joining with the respondents. He has further argued that the pay of Rs.10,700/-
Page 5 of 9C/SCA/13034/2009 JUDGMENT was being paid by the respondents, however, later on, the same has been withdrawn in pursuance to the G.R. dated 17.06.1994. He has also referred to the case of another employee viz.
Mr.V.B.Bhensdadia who was working as a Principal in Government aided private school and by way of direct recruitment, joined as D.E.O. in the Government set-up. His pay benefit drawn as Principal of the private institute has been protected by the Government, however, the same benefit has been denied to the petitioner. Finally it has been argued that the benefit once granted, cannot be taken back especially, under the circumstances as employees of grant-in-aid institute were governed by the same set of rules which were applicable to the employees of the State Government.
7. The above said arguments have been controverted by learned Assistant Government Pleader stating that pay can be protected only of the employees who were working in the Government Department shifting to the another department of the Government. As the petitioner was working in a private institution having grant-in-aid from the State Government, the pay protection available as granted by the resolution of the State Government dated 17.06.1994 was not applicable in his case.
8. This Court has considered the submissions Page 6 of 9 C/SCA/13034/2009 JUDGMENT made by both the sides. It could be seen that before joining the respondents, the petitioner was working as an Assistant Director in the pay scale of Rs.10,700/-. In pursuance to the advertisement, he has filled up the form. There was an option at Item No.16 of the form as to what will be the amount of pay acceptable by the applicants. In reply, the petitioner has mentioned that the pay of Rs.10,700/- shall be acceptable to him. After joining, the petitioner has been put on probation and thereafter, his case has been recommended for protection of pay by the respondent No.2 and he was granted this pay of Rs.10,700/- from the date of his joining. It could be seen that later on, respondent No.1 has issued notice and after notice, pay of the petitioner has been decreased from Rs.10,700/- to Rs.8,000/-
9. According to circular dated 17.06.1994, pay shall be protected of a Government Servant working in one Department / Office of the Government who has resumed another post of the Department / Office of the Government by regular process of selection.
10. It could be seen that the respondent No.1, the State Government exercises administrative and financial control in and over Anand Homeopathic Medical Collage, Anand in the same manner as was being done to the other Government Office / Page 7 of 9 C/SCA/13034/2009 JUDGMENT Department. The recruitment of the teaching and non-teaching staff is being done after getting sanction from the Government and that too by selection committee duly constituted by the Government. The Government Aided Homeopathic Colleges have to follow roster register as being followed by Government Offices. The Government Aided Homeopathic Collages have to follow Economy measures as being followed by Government Offices as per Resolution of Finance Department dated 09.09.1998. The Government Aided Homeopathic Colleges' officers and employees are covered under Gujarat Disciplinary and Conduct (Appeals) Rules, 1971. The employees were recovered under Gujarat Civil Services, (Revision of Pay), 1987 and 1988. The Departments of employees of the Government Aided Homeopathic Collages are also covered for the benefits of appointment on compassionate ground like other Government employees. The State Government has issued circular dated 17.06.1994 pertaining to the pay protection and pay fixation. The petitioner after completion of the probation period, has applied for his pay protection. The respondents after due deliberation, have granted benefits to the petitioner, however, the same has been withdrawn after 7 or 8 years.
11. Another important fact brought on record by the learned counsel for the petitioner is the form which has been filled by the petitioner at Page 8 of 9 C/SCA/13034/2009 JUDGMENT the time of applying for job. The petitioner has specifically mentioned in the Column No.16 of the application form that pay of Rs.10,700/- shall be acceptable to him. The respondents have also applied different yard-sticks for different employees. It has been pointed out by the learned counsel for the petitioner that one Mr.V.B.Bhensdadia who was working as a Principal in the Private Government Aided institution has joined District Education Office in the Government set-up, and his pay drawn earlier as Principal has been protected. Denying the same benefits to the petitioner will further attract Article 14 and 16 of the Constitution of India. Once the method of recruitment and service conditions of the petitioner in Government Aided set up are similar to that of the employees of the State Government, the benefit granted by the resolution dated 17.06.1994 cannot be denied to the petitioner.
12. In view of the foregoing discussion, this petition is allowed. The impugned orders dated 21.11.2009 and 26.11.2009 passed by the respondent No.1 and respondent No.2 respectively are quashed and set aside by allowing this petition. Accordingly, the present petition stands disposed of. Rule is made absolute.
(MOHINDER PAL, J.) PALAK Page 9 of 9