Gujarat High Court
V vs Secretary on 9 March, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/621/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 621 of 2010
=========================================================
V
J PATEL & 92 - Petitioner(s)
Versus
SECRETARY
& 4 - Respondent(s)
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Appearance
:
MS
SONA SAGAR for
Petitioner(s) : 1 - 93.
MR JK SHAH, ASST GOVERNMENT PLEADER for
Respondent(s) : 1 - 3.
MR DC DAVE for Respondent(s) : 4,
MR
SUNIT SHAH, MR DIPEN A DESAI for Respondent(s) :
5,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/03/2010
ORAL
ORDER
1. Heard learned counsel for the parties.
2. The petitioners herein have prayed to quash and set aside the orders dated 06.02.2003, 23.05.2008 and 31.03.2009 passed by the respondent authorities and thereby to direct the respondents to pay/extend the Conveyance Allowance to the petitioner along with arrears with effect from 01.04.1998.
3. The facts in brief leading to the filing of the present petition could be set out as under:
3.1 The petitioners are the staff members of the BVM Engineering College, Vallabh Vidhyanagar, Anand which was earlier affiliated to the Sardar Patel University, Anand and presently affiliated to the Gujarat Technological University. The petitioners have challenged the non-payment of the conveyance/transport allowance to them though it is being paid with effect from 01.04.1998 to other affiliated Grant-in-Aid colleges and universities in the State. Several representations were made by the staff members of the college to various authorities for granting them conveyance allowance.
3.2 The petitioners by way of Annexure L have challenged the order/letter dated 06.02.2003 which is a letter from the Directorate of Technical Education stating that the the proposal sent by the Directorate has been rejected by the State Government. By way of Annexure M, the petitioners have challenged the letter dated 23.05.2008 wherein it is stated that the proposal regarding payment of conveyance allowance to the employees of Grant-in-Aid has been rejected by the Finance Department. Further, by way of Annexure N, the petitioners have challenged the letter of the Directorate of Technical Education dated 06.09.2008. Annexure O is letter dated 31.03.2009 from Directorate of Technical Education to the Sardar Patel University Area Teachers' Association stating that since an appeal is in the process of being filed against the order of the Gujarat Universities Services Tribunal dated 13.10.2008, the same may not be implemented which is also under challenge in the present petition.
4. Ms. Sagar, learned advocate for the petitioner has submitted that the decision of the respondents to not extend the conveyance allowance to the petitioners is contrary to the practice followed by the respondents to the other Gran-in-Aid colleges and universities in the State.
4.1 Ms. Sagar has relied upon various Government Resolutions in support of her case more particularly the Government Resolutions dated 29.11.1999 & 26.05.1999 passed by the Education Department, Government of Gujarat and thereby has drawn the attention of this court to the minutes of the meeting of syndicate of the Sardar Patel University regarding the approval of the aforesaid Government Resolution at page 97 of the petition.
4.2 Ms. Sagar has submitted that in a similar case the teachers of the Faculty of Technology and Engineering, M.S. University, Baroda have challenged the decision of the M.S. University and State Government before the Gujarat Universities Services Tribunal for non-extension of conveyance allowance to them which allowed by the Tribunal. The said order was challenged before this court by the Education Department and the Directorate of Technical Education and the same was summarily rejected by this court vide order dated 27.11.2009.
5. Mr. J.K Shah, learned AGP appearing for the respondent authorities has supported the impugned orders and has submitted that this petition is not maintainable as at the first place itself there is an inordinate delay by the petitioners in preferring this writ petition. He has submitted that the petitioners are claiming the benefits of/from the year 1998 in the year 2010 and the same should not be entertained by this court in view of the decision of the Apex Court in the case of Shiv Dass vs. Union of India & Ors. reported in AIR 2007 SC 1330 and Union of India and others vs. Tarsem Singh reported in 2008(8) SCC 648.
5.1 Mr. Shah has further submitted that the decision was taken on the ground that the petitioners are not government employees and therefore any government resolutions relied upon by the learned advocate for the petitioners cannot be applicable to the petitioners. He has submitted that the order does not call for any interference from this court.
6. Mr. Sunit Shah, learned advocate appearing for Mr. Dipen Desai for the University has made a statement that no such resolution is passed by the Gujarat Technological University which has been pointed out at page 97 of the petition as passed by the Sardar Patel University.
7. This Court has perused the documents placed on record by both the sides. As a result of hearing and perusal of records, it is clear that the petitioner cannot claim parity to the decisions by the Gujarat Universities Services Tribunal and order of this court in similar matter as the petitioners are in no way come under the Gujarat Affiliated Colleges Services Tribunal/ Gujarat Universities Services Tribunal. Moreover, the University in the said case had taken a decision to make such resolution applicable to its affiliated institutions. In the present case, the benefit of the Government Resolution cannot be extended to the petitioners herein unless there is a decision by the University concerned to make such resolutions applicable. In the present case, Mr. Sunit Shah has already made a statement that the University has not made such resolutions applicable to its affiliated institutions.
8. In this regard, it will be relevant to peruse decision of the Apex Court in the case of Shiv Dass (supra) wherein the Apex Court relying upon the decision reported in AIR 1987 SC 251 has upheld the view that if there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
9. Further in the case of Union of India (supra), the Apex Court in para 7 has held as under:
"7.
To summarise, normally a belated service related claim will be rejected on the ground of delay and laches (whereremedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
10. In view of the above, this Court is not inclined to grant the prayers prayed for in the present petition. As and when the resolutions are accepted by the University, it shall always be open to the petitioner to claim such relief from the State Government. No interference is caused in the present petition and the same requires to be dismissed.
11. For the foregoing reasons, petition stands dismissed. Notice is discharged. No order as to costs.
(K.S. JHAVERI, J.) Divya// Top