Gujarat High Court
State Of Gujarat vs Babubhai Sampatbhai Pateliya on 17 June, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya, Nirzar S. Desai
C/LPA/984/2020 ORDER DATED: 17/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 984 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 23158 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 984 of 2020
With
R/LETTERS PATENT APPEAL NO. 986 of 2020
In
SPECIAL CIVIL APPLICATION NO. 23158 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 986 of 2020
In
SPECIAL CIVIL APPLICATION NO. 23158 of 2019
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STATE OF GUJARAT
Versus
BABUBHAI SAMPATBHAI PATELIYA
==========================================================
Appearance:
MR KAMAL B. TRIVEDI, ADVOCATE GENERAL with MR DHAWAN
JAYSWAL, AGP (1) for the Appellant(s) No. 1,2,3,4
MR GAUTAM JOSHI, SR. ADVOCATE with MR. VYOM H SHAH(9387) for
the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,3
2,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,6,7,8,9
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 17/06/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Mr. Kamal B. Trivedi, learned Advocate General with Mr. Dhawan Jayswal, learned AGP for the appellants in both the appeals and Mr. Gautam Joshi, learned Senior Advocate assisted by Mr. Vyom Shah, learned advocate for the respondents in both the appeals.
Page 1 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021C/LPA/984/2020 ORDER DATED: 17/06/2021
2. LPA No. 984/20 arises out of order dated 08.10.2020 passed in Civil Application No. 1/20 passed in SCA No. 23158/19 and LPA No. 986/20 arises out of order dated 22.12.2020 passed in Civil Application (for breach of order) No. 2/20 . As both the appeals are interconnected and arises out of the same writ petitions in form of two intra-court appeals under clause 15 of the Letter Patent, bot the appeals are heard together and are disposed of by this common order.
3. At the outset, it may be stated that the main writ petition is pending for its further hearing before the learned Single Judge and both these appeals arise out of the directions issued by the learned Single Judge in form of interim orders.
3. Suffice it to say that the respondents-writ petitioners have filed writ petitions for appropriate writ of mandamus or any other appropriate writ, order or direction directing the respondents i.e., the appellants herein, to regularise the services of the original petitioners to the post of teachers in the Secondary/Higher Secondary Schools where they are engaged as itinerant teachers and for further direction to pay them regular salary and allowances as available to the regular teachers and continue to pay them such salary and allowances with all other benefits.
4. The respondents herein-original petitioners preferred Civil Applications and inter alia prayed for a direction directing the original respondents-State Authorities to pay to the original petitioners honorarium per class on pro-rata basis from March 2020 till the time classes are assigned to the applicants. The learned Single Judge after hearing the parties, allowed the application by directing the appellants-original petitioners, i.e., the State Authorities to pay maximum monthly honorarium as per the G.R. dated 21.12.2015 to the original petitioners regularly on or before 7 th of each month till the regular education classes are started in the schools. The learned Single Judge was further pleased Page 2 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021 C/LPA/984/2020 ORDER DATED: 17/06/2021 to direct the original respondents-State Authorities to pay arrears from February, 2020 till September, 2020 within a period of 4 weeks from the date of the order, i.e., 08.10.2020.
5. The record indicates that as the said order was not complied with, the respondents herein-original petitioners preferred Civil Application under Order 39 Rule 2A of the CPC for breach of the order and prayed for passing order for deliberate non-compliance of the orders and directions of the order passed by this Court in CA No. 1 of 2020. The said Civil Application was allowed, whereby the appellants-original respondents, i.e., State Authorities were directed to pay maximum monthly honorarium as per the Government Resolution and observed thus in paras 6, 7 and 8 vide order dated 22.12.2020 -
"6. Today, when the matter was takenup for hearing learned Government Pleader submitted that the order dated 8th October, 2020 was received by the respondents on 10th November, 2020 and on 11th November, 2020, the learned Assistant Government Pleader has given an opinion to challenge the order by way of an appeal and thereafter, there were Diwali holidays, and the matter was further proceeded and the legal department granted sanction on 17th December, 2020 to file an appeal. Learned Government Pleader submitted that the appeal shall be filed today challenging the said order by way of an intracourt appeal before the Division Bench and requested that no order be passed in this Civil Application for taking necessary action for non-compliance of the order.
7. Having considered the submissions made by both the sides, it is pertinent to note that this Court passed an order on 8th October, 2020, certified copy of which was received by the respondent on 10th November, 2020 and considering the period of Diwali holidays of 10 days, the four weeks period would be over by 20th December, 2020 and as such, there is clear non-compliance of the order passed by this Court. In such circumstances, respondents are Page 3 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021 C/LPA/984/2020 ORDER DATED: 17/06/2021 directed to deposit the amount as directed in the aforesaid order before the Registry of this Court within a period of three days from today.
8. With this direction, this Civil Application is disposed of."
As aforesaid, both these orders are challenged by the State and its authorities by way of filing these Letters Patent Appeals as described hereinabove.
7. After hearing the learned advocates appearing for the parties, the coordinate bench comprising of Mr. Justice J.B. Pardiwala and Mr.Justice Ilesh J. Vora passed the following common order on 24.12.2020 -
"1. The present Appeal seeks to challenge the legality and validity of an Order dated 08.10.2020 passed in Civil Application (for direction) No.1 of 2020 in Special Civil Application No.23158 of 2019, whereas another LPA No.986 of 2020 seeks to challenge an Order dated 22.12.2020 passed in Civil Application (for breach of order) No.2 of 2020 in Special Civil Application No.23158 of 2019. Both these Appeals being connected matters, were taken up for hearing together.
2. Learned Advocate General Shri Kamal Trivedi appearing on behalf of the Appellant State in both the Appeals, has claimed that 51 Respondents Original Petitioners are itinerant / pravasi teachers, engaged by various grantinaid schools etc. in accordance with G.R. dated 21.12.2015, issued by the Education Department, under which as and when regularly recruited teachers of particular subjects proceed on leave, the concerned schools move requisition for permitting to engage itinerant / pravasi teachers in those subjects, and at the end of the month, depending upon the periods taken by them on the basis of the claim put by the concerned schools, the concerned District Educational Officers would release the payment in favour of the schools, which in their turn would disburse the same to the said itinerant / pravasi teachers.
3. As against the above, according to Mr. Gautam Joshi, the learned Senior Counsel appearing for 51 Respondents Original Page 4 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021 C/LPA/984/2020 ORDER DATED: 17/06/2021 Petitioners, the Respondents-Original Petitioners are rendering their services in various schools confined to three districts i.e. Panchmahal, Mahisagar and Dahod since 2016, and that though they were initially desired to take care of the situation created because of vacancy of regularly recruited teaching staff, they have been continued like that since then in the said three districts, as the State could not take up the task of recruitment of Secondary and Higher Secondary teachers, and that they have been performing regular duties as regularly recruited teachers, and that therefore, the Respondents' main prayer is to regularise their services by making the payment of regular salary and allowances as available to the regular teachers from their original date of payment. According to him, by way of Civil Application filed in the main matter, Respondents Original Petitioners sought direction against the State authorities to pay to the Respondents the "honorarium per class" on prorata basis from March, 2020 till the time, classes are assigned to them, which was allowed by the learned single Judge vide Order dated 08.10.2020 with certain directions and since according to him, there was noncompliance of the said directions, he took out another Civil Application under Order 39, Rule 2A of the Code of Civil Procedure, 1908.
4. Ultimately, vide order dated 08.10.2020, the learned single Judge observed that in peculiar facts of the case, the Original Petitioners are victims of pandemic COVID19 situation and are not being paid their honorarium. It was under these circumstances that the State came to be directed to pay maximum honorarium as per the G.R. dated 21.12.2015 to the Original Petitioners on or before 7th of each month till the regular education classes would start in the schools, with the further direction that the State authorities to pay the arrears from February, 2020, till September, 2020, within a period of four weeks. Vide further Order dated 22.12.2020 in Civil Application No.2 of 2020 taken out by the Original Petitioners under Order 39, Rule 2A of The Code of Civil Procedure, 1908, the State came to be directed to deposit the amount as directed vide earlier Order dated 08.10.2020, before the Registry of its Court within a period of 3 days from 22.12.2020.
5. During the course of hearing, at the outset, learned Advocate General appearing for the Appellant State in both the Appeals made the following statement:
"Without prejudice to the rights and contentions of the Appellant State, while keeping humanitarian angle in mind with reference to Page 5 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021 C/LPA/984/2020 ORDER DATED: 17/06/2021 pandemic COVID19 when during the course of lockdown in force from 25.03.2020 to 31.05.2020 vide Circular dated 15.04.2020 of General Administration Department, the State had directed that even the employees engaged by outsourcing agencies to be considered on duty for making payment of their wages; State would deposit, within a period of 10 days with the Registry of this Hon'ble Court, an amount calculated at maximum monthly honorarium as per the G.R. dated 21.12.2015 of Education Department in respect of 51 Respondents Original Petitioners and will simultaneously take up the task of necessary verification with respective schools in question through the concerned District Education Officers, so that the amounts may be released in favour of the said 51 Respondents Original Petitioners as per their entitlement."
6. In view of the above, we direct the Appellant State to comply with the aforesaid statement of the learned Advocate General within a period of 10 days starting from today and see that after necessary verification through the concerned schools, the needful is done to make the payment of the honorarium for the period commencing from March, 2020, to May, 2020, as per their respective entitlements to the 51 Respondents Original Petitioners. Since both the Appeals require consideration, the same are fixed for hearing on 19.01.2021. In such circumstances, the operation of the impugned order dated 08.10.2020 passed in Civil Application (for direction) No.1 of 2020 in Special Civil Application No.23158 of 2019, as well as the impugned order dated 22.12.2020 passed in Civil Application (for breach of order) No.2 of 2020 in Special Civil Application No.23158 of 2019, are stayed. Matters be kept on 19/1/2021."
8. Thereafter, an order dated 19.01.2021 was also passed by the coordinate bench for compliance by the appellants as per the statement made by the learned Advocate General, which is recorded in paras 5 and 6 of the order dated 24.12.2020. Thereafter, this Court passed the following order on 09.04.2021 -
"1. Heard Mr. Kamal B. Trivedi, learned Advocate General assisted by Mr. Tirthraj Pandya, learned Assistant Government Pleader for the appellants and Mr. Gautam M. Joshi, learned Senior Advocate assisted by Mr. Vyom Shah, learned Page 6 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021 C/LPA/984/2020 ORDER DATED: 17/06/2021 advocate for the respondents.
2. By an order dated 24.12.2020, the Coordinate Bench of this Court has recorded the statement made on behalf of the appellants by the learned Advocate General as observed hereinbelow:
"4. Ultimately, vide order dated 08.10.2020, the learned single Judge observed that in peculiar facts of the case, the Original Petitioners are victims of pandemic COVID 19 situation and are not being paid their honorarium. It was under these circumstances that the State came to be directed to pay maximum honorarium as per the G.R. dated 21.12.2015 to the Original Petitioners on or before 7th of each month till the regular education classes would start in the schools, with the further direction that the State authorities to pay the arrears from February, 2020, till September, 2020, within a period of four weeks. Vide further Order dated 22.12.2020 in Civil Application No.2 of 2020 taken out by the Original Petitioners under Order 39, Rule 2A of The Code of Civil Procedure, 1908, the State came to be directed to deposit the amount as directed vide earlier Order dated 08.10.2020, before the Registry of its Court within a period of 3 days from 22.12.2020.
6. In view of the above, we direct the Appellant State to comply with the aforesaid statement of the learned Advocate General within a period of 10 days starting from today and see that after necessary verification through the concerned schools, the needful is done to make the payment of the honorarium for the period commencing from March, 2020, to May, 2020, as per their respective entitlements to the 51 Respondents Original Petitioners. Since both the Appeals require consideration, the same are fixed for hearing on 19.01.2021. In such circumstances, the operation of the impugned order dated 08.10.2020 passed in Civil Application (for direction) No.1 of 2020 in Special Civil Application No.23158 of 2019, as well as the impugned order dated 22.12.2020 passed in Civil Application (for breach of order) No.2 of 2020 in Special Civil Application No.23158 of 2019, are stayed. Matters be kept on 19/1/2021."
3. Thereafter, on 19.1.2021, the matter was again considered by a Page 7 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021 C/LPA/984/2020 ORDER DATED: 17/06/2021 Coordinate Bench, wherein the following order is passed:
"We have heard Shri Kamal B. Trivedi, learned Advocate General assisted by Shri Dharmesh M.Devnani, learned Assistant Government Pleader for the State appellants and Shri Gautam M. Joshi, learned Senior Counsel assisted by Shri Vyom H.Shah, learned counsel for the respondentCaveators.
Shri Trivedi informs that pursuant to the order dated 24th December, 2020, the amount required to be deposited has since been deposited in the Registry of this court on 8th January, 2021 and further communication has been sent with regard to verification task as was mentioned in the aforesaid order. Further, additional affidavit on behalf of the State appellants is also received and placed on record.
On the other hand, Shri Gautam Joshi, learned Senior Counsel for the respondents submits that the respondents or their counsel have no information about the deposit being made by the State nor any information regarding request for verification. He, however, states that he would take instructions in the matter and may also like to file reply to the additional affidavit filed today.
Let these matters be listed again on 8th February, 2021. In the meantime, necessary steps may be taken for further compliance of the order dated 24th December, 2020."
4. Mr. Kamal B. Trivedi, learned Advocate General for the appellants has stated that no details are available with the appellants. However, we find from the record that Mr. Vyom Shah, learned advocate for the respondents has filed a note along with the Bank details of all the respondents. As indicated in the orders dated 24.12.2020 and 19.1.2021, necessary steps are required for further compliance of the order dated 24.12.2020. It is stated that the appellants have deposited the amount as per the earlier order dated 24.12.2020. The same may be disbursed in favour of the respondents by RTGS only as per the Bank details supplied by the respondents. S.O. to 17.6.2021."
9. Learned counsels submitted that the directions given are complied with by the appellants. It was further contended by the learned counsel appearing for both the parties that in view of the aforesaid statement, the Page 8 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021 C/LPA/984/2020 ORDER DATED: 17/06/2021 appeals be disposed of as the writ petition is pending for its further hearing before the learned Single Judge.
10. In light of the aforesaid, both the appeals are disposed of in view of the statement made by the learned Advocate General and the said statement having been acted upon as mentioned hereinabove. Both the parties are at liberty to request the learned Single Judge for expeditious hearing of the writ petition. Connected Civil Applications, if any, also stand disposed of. However, there shall be no order as to costs.
(R.M.CHHAYA, J) (NIRZAR S. DESAI,J) BIJOY B. PILLAI Page 9 of 9 Downloaded on : Sun Jun 20 00:16:16 IST 2021