Gujarat High Court
Gujarat Rajya Pachhat Varqa ... vs State Of Gujarat on 29 July, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26938 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT RAJYA PACHHAT VARQA CHHATRALAYA KARMACHARI
MAHA
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HASIT DAVE(1321)
for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 29/07/2022
CAV JUDGMENT
1.Heard learned Senior Advocate Mr. Shalin Mehta for learned advocate Mr. Hasit Dave for the petitioner and learned Assistant Government Pleader Mr. Jayneel Parikh for the Page 1 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 respondent-State.
2.Draft amendment filed on 18.06.2014 is granted.
3.By this petition under Article 226 of the Constitution of India, the petitioner-Gujarat Rajya Pachhat Varga Chhatralaya Karmachari Maha Mandal (here-in-after referred to as "the petitioner-Union") has prayed for appropriate writ to declare that the action of the State Government in not paying the pay at the running scale to the members of the petitioner-Union in the cadre of Warden, Assistant Warden, Cook, Assistant Cook and Watchman as illegal, unconstitutional, violative of Articles 14 and 16 of the Constitution of India. It is also prayed to declare that the members of the petitioner- Union are entitled to receive the pay scale as per the Government Resolution dated 31.08.2000.
4.Learned Senior Advocate Mr. Shalin Mehta with learned advocate Mr. Hasit Dave for the petitioner-Union submitted that this petition was earlier dismissed by this Court (Coram :
Hon'ble Mr. Justice Jayant Patel, As His Lordship was then) vide order dated 7.1.2008. It was submitted that Letters Patent Appeal No. 876/2008 preferred by the petitioner-Page 2 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022
C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 Union was disposed of by the Division Bench (Coram : Hon'ble Mr. Justice K.S. Jhaveri, As His Lordship was then and Hon'ble Mr. Justice A.G. Uraizee, As His Lordship was then) vide order dated 28.04.2014 by remitting the matter back to decide afresh considering the documents at page nos. 128 to 290 of the paper book filed with the appeal. During the course of hearing of Letters Patent Appeal, it was pointed out by learned AGP that in view of notification dated 3.3.2014 increasing the pay of the members of the petitioner-Union, the appeal would not survive. The Division Bench therefore, also permitted the petitioner-Union to challenge the order dated 3.3.2014 in this petition by way of an amendment.
5.It was therefore, submitted by learned Senior Advocate Mr. Mehta that the petition is required to be decided afresh considering the documents produced by the petitioner-Union at page nos. 128 to 290 before the Division Bench.
6.It was further pointed out that by order dated 1.5.2015, the petition was dismissed for non prosecution which was restored later on by order dated 8.5.2015.
7.By way of an amendment, the petitioner-Union has placed on record page nos. 128 to 290 Page 3 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 which were placed before the Division Bench as Annexure-I (page 98/A to 98/Z-137) and also prayed to quash and set aside the notification dated 3.3.2014.
8.It appears that the petitioner-Union preferred Civil Application No. 5268/2017 to pay the basic minimum wages which was disposed of by the Court (Coram : Hon'ble Mr. Justice P.P.Bhatt, As His Lordship was then) by order dated 27.4.2017 as under :
"1. The petitioner moved this Civil Application for issuance of direction upon the respondent to pay the basic minimum wages and/ or such revised higher pay to all the employees of the Petitioner Karmachari Maha Mandal.
It is also prayed that the
main matter i.e. Special Civil
Application No. 26938 of 2006 may be given priority and may be listed for final hearing.
2. Learned AGP appearing for Respondent State placed on record the Resolution issued by Tribal Development Department, Government of Gujarat dated 27.03.2017 which provides that the salary of the employees working in grant¬ in¬ aid Chhatralaya is enhanced and the said Resolution is implemented and accordingly the pay of such employees shall be revised. The said Resolution is taken on record.
3. In view of the aforesaid Page 4 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 Resolution, the members of the Petitioner Mandal will get the revised pay and, therefore, the present Civil Application is required to be disposed of.
Accordingly, the Civil Application stands disposed of.
4. The learned advocate for the Petitioner submits that the pay revised by the Respondent State is also below minimum wages. The Petitioner may raise this ground in the main matter if not raised uptil now by filing an appropriate application seeking amendment if required. Let the main petition be listed for final hearing in the week commencing from 19.6.2017."
9.This Court (Coram :Hon'ble Mr. Justice A.S. Supehia) passed the following order on 12.09.2019:
"1. In the present writ petition, the petitioners are claiming benefits at par with the employees recruited by the State Government.
2. In the affidavit-in-reply filed by the respondent authorities dated 09.07.2007, a specific contention has been raised that the recruitment rules of both the categories of employees are different. Though such contention is taken, in support of the same, no recruitment rules or the pay-scale conferred to the employees of the State Government have been produced on record of this petition.
3. The respondent-State is hereby Page 5 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 directed to file a fresh affidavit clarifying its position regarding the recruitment of both the categories of employees. Necessary recruitment rules along with the service conditions as well as nature and duties of the present petitioners and the employees employed by the State authority shall be produced on record by way of filing necessary affidavit. Appropriate affidavit shall be filed on or before the next date of hearing.
4. The matter is kept on 18.11.2019."
10. Learned Senior Advocate Mr. Shalin Mehta for the petitioner-Union submitted that the members of the petitioner-Union are entitled to get the same pay scale as is being paid to the employees of the Ashram Shala and alternatively pay scale of employees of Chhatralaya for physical handicapped and Schedule Caste/Schedule Tribe should be paid to the members of the petitioner-Union who are also working in Chhatralaya of the NGO rendering the services to the students of backward class.
11. It was submitted that members of the petitioner-Union working as Warden, Assistant Warden, Cook, Assistant Cook and Watchman etc. in the Chhatralaya run by NGOs are being paid fixed salary whereas other similarly situated employees in the Chhatralaya(Hostel) getting 100% grant -in-aid are paid salary in the prescribed pay scale. It was submitted Page 6 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 that the members of the petitioner-Union are also entitled to receive the pay scale of Government employees instead of fix pay on the ground of parity of pay as the members of the petitioner-Union are also holding similar posts discharging similar duties and are also having similar qualifications to that of employees of the Chhatralaya (Hostel) getting 100% grant from the State Government.
12. It was pointed out by learned Senior Advocate Mr. Mehta that the appointment procedure is common for appointing employee in Hostel and Hostel run by NGO getting 90% grant-in-aid and Hostel getting 100% grant for all the posts such as:
(i)Calling names from Employment Exchange of respective SC/ST/OBC departments of respective caste.
(ii) Names put before three member panel consisting of concerned department person, one Government Employee, one Education department person and one person of the concerned NGO.
(iii) Approval by Government to NGO which then issues appointment letter in cases of both 90% and 100% funded NGOs.Page 7 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022
C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022
13. It was submitted that the qualifications and duties are also common for both the cases i.e. appointment of the employees in the hostels run by the NGOs with 100% grant and hostels run by NGOs with 90% grant.
14. Learned Senior Advocate Mr. Mehta referred to the Rule no. 22 of Grant-in-Aid Rules, 1969 applicable to the hostels run by the NGOs for backward classes in the State of Gujarat (Page no. 98/E). Attention was also invited to the Page nos. 98/S to 98/U pertaining to the duties of Warden (Gruhmata/ Gruhpati) of Hostel run by 90% funded NGO and Page nos . 98/Z/127 to 98/Z/129 of the duties of Warden (Gruhmata/Gruhpati) of Hostel run in case of 100% funded NGOs to demonstrate that in both the cases, duties are identical and in both the cases, the persons have to stay 24 hours within the hostel premises as per the appointment order.
15. Learned Senior Advocate Mr. Mehta also referred to and relied upon the copies of the appointment orders to demonstrate that in both the categories of hostels, the procedure of appointment, qualification and duties are identical.
16. It was submitted that the State Government has increased the fixed pay to Rs. 5500/- in case of Warden (Gruhmata/Gruhpati) Page 8 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 who has passed SSC and PTC, Rs.6500/- in case of Graduate Warden, Rs. 3500/- in case of Chief Cook, Rs. 3000/- in case of Assistant Cook and Rs. 3000/- in case of Watchman with effect from 4.3.2017. It was pointed out that on the other hand, pay scale paid to similar employees in case of Hostel run by 100% funded NGOs in the year 2011 in case of Warden (Gruhmata/Gruhpati) is in pay band of Rs. 5200-20200 and in cases of Cook, Assistant Cook and Watchman it was in the pay band of Rs.4440-7440 and in cases of Chief Warden and Assistant Warden, it was in the pay band of Rs.5200-20200 whereas in case of employees of Hostel run by 90% funded NGO fixed salary is paid.
17. It was submitted that the members of the petitioner-Union who are working in the hostels run by the NGO for backward classes having 90% grant from the Government are, thus, discriminated than the employees of the hostels run by the same trust receiving 100% grant who are getting pay scales as prescribed by the State Government.
18. Learned Senior Advocate Mr. Mehta submitted that the stand taken by the respondent authorities that the recruitment rules, nature of work done by the employees of both the Hostels are different, is not correct inasmuch as the members of the Page 9 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 petitioner-Union are also performing identical duties as performed by their counterpart in the hostels run by the NGOs getting 100% grant-in-aid and there is no difference in the qualifications also. It was submitted that merely because, appointment of the members of the petitioner-Union is done by the trust or the institute and the State is merely an approving authority, the appointment of the members of the petitioner- Union cannot be said to be different from appointments made in 100% grant-in-aid hostels and Ashram Shalas in view of identical procedure of appointment in both the cases. It was, therefore, submitted that the members of the petitioner-Union are discriminated by payment of fixed salary only resulting in violation of the fundamental right of the members of the petitioner-Union to get equal pay for equal work. It was pointed out that about 7000 members of the petitioner-Union discharging their duties as Warden (Gruhpati), Cook, Assistant cook, etc. are affected by such discrimination.
19. Learned Senior Advocate Mr. Mehta submitted that the contention of the respondents that the payment of fixed salary in case of members of the petitioner-Union is justified by stating that hostels and Chhatralayas managed for Schedule Caste/Schedule Tribe and other backward class Page 10 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 students are getting 90% salary grant only whereas hostels and Ashram Shalas run by the Samaj Suraksha are getting 100% grant, would amount to clear discrimination. It was submitted that such discrimination is without any basis in view of identical procedure for appointment, qualification and duties in both the cases. It was submitted that there is commonality of the work and nature of duties of the members of the petitioner-Union working in different Hostels (Chhatralayas) and similar set up of those working in Government aided institutions receiving 100% grants like Ashram Shalas or Chhatralayas run by other department of the State Government.
20. In support of his submission, he relied upon the following decisions :
1)State of Kerala v. B. Renjith Kumar and others reported in (2008) 12 SCC 219 wherein it is held that the Doctrine of "equal pay for equal work" was originally propounded as part of the Directive Principles of State Policy in Article 39(d) of the Constitution and having regard to the Constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of "equal pay for equal work" has assumed the status of Page 11 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 fundamental right. The Apex Court considering the nature and duties and functions of the officers of the Labour Court and those appointed as Presiding Officers of Industrial Tribunal held that there is no reason to treat them differently with regard to the pay scale and the equal benefit was granted to the officers of the Labour Court equivalent to that of Presiding Officer of Industrial Tribunal considering that only difference was their source of recruitment.
2)Reliance was placed on the decisions in case of State of West Bengal v. Tarun K. Roy reported in (2004) 1 SCC 347 and in case of State of Haryana and others v. Charanjit Singh and others reported in (2006) 9 SCC 321 which are considered by the Supreme Court in case of State of Punjab and others v. Jagjit Singh and others reported in (2017) 1 SCC 148. It was pointed out that Hon'ble Supreme Court in case of Jagjit Singh and others (Supra) held that principle of "equal pay for equal work" expounded through various decision of Supreme Court constitute law declared by it which is binding to all Courts in India and as such, the same would be applicable to the temporary employees vis-à-vis the regular employees also.Page 12 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022
C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022
21. It was submitted that in facts of the present case members of the petitioner-Union discharging the similar duties, having similar qualifications are entitled to get the pay scale of the similarly situated employees in 100% grant-in-aid Ashram Shalas and/or hostels. It was submitted that in the alternative, members of the petitioner Union are entitled to claim wages at par with at- least as per the minimum pay scale of the employees holding the similar post in 100% grant-in-aid Hostels.
22. On the other hand, learned Assistant Government Pleader Mr. Jayneel Parikh appearing for respondent no.1 to 3 submitted that principle of "equal pay for equal work"
cannot be stretched on the basis of same nature of work but are to be considered based on the nature of post created, recruitment rules, procedure to be undertaken, duty to be discharged, accountability etc.
23. In support of his submission, reference was placed on the decision of Apex Court in case of State of Haryana v. Haryana Civil Secretariat Personal Staff Association reported in (2002) 6 SCC 72 wherein the Supreme Court has held that claim of 'equal pay for equal work' is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Page 13 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 Government.
24. It was submitted that recruitment rules and procedure for the employees of Hostel getting 100% grant is different than that of the members of petitioner-Union and therefore, no parity can be claimed by the members of the petitioner-Union so as to get the same pay scale of the employees of Hostel getting 100% grant.
25. It was submitted that it is the policy of the State Government for providing 90% grant-in-aid to the NGOs running Hostel (Chhatralaya) and relationship of employer and employee is not of a Government organisation, and therefore, the parity based on equal pay for equal work cannot be considered as the object of running Chhatralaya/hostel for physically handicap is different than that of hostel(Chatralaya) in which members of the petitioner-Union discharge their duties.
26. It was submitted that the policy of the State Government to provide grant and policy of prescribing minimum wages are different and therefore, the principle of "equal pay for equal work" as sought to be canvassed by the petitioner-Union cannot be made applicable against the Government in the matter of grant.
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27. Considering the submissions of the learned advocates of both the sides and taking into consideration the documents produced on record, it emerges that there is no difference between the appointment procedure, qualification and duties of the employees of the hostels getting either 90% grant or 100% grant.
28. It appears that the principle of "equal pay for equal work" is not a debatable issue in view of the decision of the Supreme Court in case of Jagjit Singh and others (Supra) wherein the decision in case of Haryana Civil Secretariat Personal Staff Association (supra) is also considered. The Hon'ble Supreme Court while considering the principle of "equal pay for equal work" applicable to temporary employees discharging similar duties as that of regular employees in the facts before it in Jagjit Singh and other (Supra) has summarized the principle for "equal pay for equal work".
29. On considering the catena of decisions, the Apex Court laid down the following parameters for invoking the principle of "equal pay for equal work" :
"(i) The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, Page 15 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 under the principle of 'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology case10, Union Territory Administration, Chandigarh v. Manju Mathur, the Steel Authority of India Limited case, and the National Aluminum Company Limited case).
(ii) The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of 'equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see - the Randhir Singh case1, and the D.S. Nakara case).
(iii) The principle of 'equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see -
the Federation of All India Customs and Central Excise Stenographers (Recognized) case, the Mewa Ram Kanojia case5, the Grih Kalyan Kendra Workers' Union case and the S.C. Chandra case).
(iv) Persons holding the same Page 16 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 rank/designation (in different
departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of 'equal pay for equal work' (see - the Randhir Singh case1, State of Haryana v. Haryana Civil Secretariat Personal Staff Association, and the Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.
(v) In determining equality of functions and responsibilities, under the principle of 'equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case and the State Bank of India case). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of 'equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia, and the Grih Kalyan Kendra Workers' Union case).
(vi) For placement in a regular pay-
Page 17 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay- scale (see - the Orissa University of Agriculture & Technology case).
(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as - 'selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria (see - State of U.P. v. J.P. Chaurasia).
(viii) If the qualifications for recruitment to the subject post vis-a- vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case, and Government of W.B. v. Tarun K. Roy). In such a cause, the principle of 'equal pay for equal work', cannot be invoked.
(ix) The reference post, with which parity is claimed, under the principle of 'equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union of India v. Pradip Kumar Dey, and the Page 18 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 Hukum Chand Gupta case).
(x) A comparison between the subject post and the reference post, under the principle of 'equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand).
(xi) Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of 'equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see - the State Bank of India case).
(xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of 'equal pay for equal work' would not be applicable (see
- State of Haryana v. Haryana Civil Secretariat Personal Staff Association).
(xiii) The parity in pay, under the principle of 'equal pay for equal work', Page 19 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay- scale. The principle of 'equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see
- State of West Bengal v. West Bengal Minimum Wages Inspectors Association).
(xiv) For parity in pay-scales, under the principle of 'equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur).
(xv) There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/ sub-office level (see - the Hukum Chand Gupta case), when the duties are qualitatively dissimilar.
(xvi) The principle of 'equal pay for equal work' would not be applicable, Page 20 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see - the Hukum Chand Gupta case).
(xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of 'equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of 'equal pay for equal work' would not apply (see - the S.C. Chandra case, and the National Aluminum Company Limited case)."
30. In view of above ratio laid down in the decision of the Supreme Court for applying the principle of "equal pay for equal work", in the facts of the present case, it is not in dispute that members of the petitioner- Union who are discharging duties as Waeden (Gruhpati), Assistant Warden, Cook, Assistant Cook, Watchman etc. are appointed following the same procedure, having the same qualification and discharging the same duties as that of similarly situated persons in Ashram Shalas or hostels which are getting 100% grant from the State Government.
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31. Therefore, the members of the petitioner-Union are also entitled to get the same pay scale as being paid to the similarly situated persons. In the decision of the Supreme Court in case of Haryana Civil Secretariat Personal Staff Association (supra), the Apex Court held that the assertion made at the behest of the Personal Assistant that they were discharging similar duties and responsibilities as Personal Assistant in Central Secretariat was factually incorrect and there was no comparison made of the nature of duties and responsibilities or about the qualifications prescribed for recruitment for both the posts. Whereas in the facts of the present case, on comparison of the appointment procedure, qualification and duties between the employees of hostels run by NGOs getting 100% grant and the employees of hostels run by NGOs getting 90% grant, it emerges that all the three aspects are common in both cases for all the posts.
32. The Division Bench of this Court in case of Varmora Jayantilal Mohanbhai & ors. v. State of Gujarat in Special Civil Application No.13704/2010 and other allied matters vide judgment dated 30.04.2012 in similar case directed to pay lowest in the pay scale to new recruits for five years and then full pay Page 22 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 scale with all benefits and not the fixed pay as under :
"2. By way of these petitions, the petitioners working as Assistant Teachers in schools for the disabled children run and managed by institutions duly registered and recognized by the State Government under Section 51 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 have prayed for the following reliefs:-
"(a) To direct the respondents to pay to the petitioners fixed monthly pay as per G.R. Dated 16.02.2006 and 29.04.2010, as per Annexure-I colly and to place the petitioners in the regular pay-scale on completion of 5 years' service accordingly;
(b) To direct the respondent authorities to treat the petitioners at par with the Junior employees who have been subsequently appointed in the same institutions after 16.02.2006, by paying to the petitioners the same monthly fixed pay as per being paid to the said employees who are appointed after 16.02.2006, as per the G.R. dated 16.02.2006 and 29.04.2010 for a period of 5 years and thereafter to place the petitioners in the regular pay-scales;
(c) To direct the respondents to pay the arrears becoming payable to the petitioners pursuant to the aforesaid directions, along with interest @ 18% p.a.
(d) To hold and declare that the action of the respondent authorities in Page 23 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 continuing the petitioners in the same fixed monthly pay of Rs.2000, Rs.2200, Rs.2800 and Rs.4200 to the Attendants (Peons) and Sweepers, Clerk-cumTypist, Teachers and Hostel Rectors (Gruh Pati/Gruh Mata) respectively since the date of their initial appointments, is bad in law, null and void, arbitrary, discriminatory, irrational and violative of Articles 14, 16, 19 and 21 of the Constitution of India;
(e) To quash and set aside the impugned communication dated 24th November, 2009, addressed by the State Government to the Director of Social Defense and order of Respondent No.3 dated 08.07.2010 as per Annexure-O colly;
(f) To hold and declare that the statement of fixed monthly pay annexed with the G.R. dated 15.09.2000 at Annexure-A stands substituted by the revised fixed monthly pay as per the Government Resolutions dated 16.02.2006, 01.08.2006 and 29.04.2010 as per Annexure-I colly.
(g) To direct the respondent-State Government to amend the G.R.dated 15.09.2000 at Annexure-A as well as the Statement of fixed monthly pay of employees annexed therewith in accordance with the G.Rs. Dated 16.02.20006, 01.08.2006 and 29.04.2010 as per Annexure-I Colly, and to grant benefit thereof to the petitioners accordingly;
(h) Pending the admission, hearing and final disposal of this petition to direct the respondent authorities to immediately start paying to the petitioners the monthly fixe pay as per Page 24 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 G.R. dated 16.02.2006 and G.R. dated 19.04.2010 as per Annexure-I colly.
Subject to further orders that may be passed in the present petition;
(H) Pending the admission, hearing and final disposal of this petition, be pleased to restrain the respondents from altering the service conditions of the petitioners adverse to them in any manner;
(I) Pending the admission, hearing and final disposal of this petition, be pleased to direct the respondent authorities to put the petitioners in the regular pay-scales on completion of 5 year's service at least from 16.02.2006 i.e. w.e.f. 16.02.2011, subject to further orders that may be passed in the present petition;
(J) To grant any other appropriate and just relief/s;"
3. The facts relevant for the purpose of deciding these petitions may be summarized as under:-
3.1 The petitioners are employed in the schools for the Disabled children on fixed monthly pay of Rs.2000, Rs.2200, Rs.2800 and Rs.4200 to the posts of Attendants (Peons) and Sweepers, Clerkcum-Typist, Teachers and Hostel Rectors (Gruh Pati/Gruh Mata) respectively.
3.2 The said institutions are "Institutions for Persons with Disabilities" as defined in Section 2(m) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The said Page 25 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 institutions are duly registered and recognized by the State Government under Section 51 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and they are provided 100% grant-in-aid towards the salaries of their employees. The said institutions are running schools and institutions for Disabled Children such as Blind and Visually Impaired, Deaf and Dumb and Mentally Retarded children.
They are run under the control, supervision and guidance of the social Defence Department of the State Government. The said Department is now re-named as Social Justice and Empowerment Department.
3.3 The petitioners were duly selected and appointed pursuant to No Objection Certificate (N.O.C.) granted by the respondent authorities for the vacancies in the duly sanctioned posts. Before making such appointments the applications were invited through employment exchange and by public advertisements, selections were made by duly constituted interview committee comprising of the District Social Defence Officer and other members and approval was granted by the Department.
3.4 The petitioners were initially appointed for a period of one year on fixed monthly pay of Rs.2000, Rs.2200, Rs.2800 and Rs.4200 to the Post of Attendants (Peons), Sweepers, Clerk-cum Typist, Teachers and Hostel Rectors (Gruh Pati/Gruh Mata) respectively. Thereafter, their continuation in the service has been approved from year to year by the Director of Social Defence but, they are continued in the same Page 26 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 monthly fixed pay as aforesaid until this date. The petitioners have put in service of about seven years by now.
3.5 On the other hand, those employees who are appointed in the very same institutions after 16.02.2006 are granted the benefit of increased monthly fixed pay, and they are also granted the benefit of automatic placement in the regular pay-scale on completion of five years service, pursuant to the Government Resolution dated 16.02.2006, 01.08.2006 and 29.04.2010, reply issued by the Finance Department of the State Government.
3.6 The G.R. dated 16.02.2006 provided for fixed monthly pay of Rs.1500 for Class-IV employees, and Rs.2500, Rs.3500 and Rs.4500 for Class-III employees. Subsequently, the said fixed monthly pays came to be revised by G.R. dated 29.04.2010 to Rs.3500 per month for Class-IV employees and Rs.4500/-, Rs.5000/- and Rs.6000/- for Class-III employees.
3.7 However, the aforesaid benefit of increased monthly fixed pay and placement in the regular pay-scale on completion of five year's service has not been granted to the petitioners despite several representations.
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9. Having heard learned Counsel for the respective parties and having perused the materials on record, we find that the following facts are undisputed.
(1) The petitioners are employed as Assistant Teachers in the schools for Page 27 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 disabled children on a fixed monthly pay. Managements of the said institutions thereafter invited applications from the District Employment Exchange as well as by issuing advertisements in the news papers for recruitment on the posts of Attendants (Peons), Sweepers, Clerk-cum- Typist, Teachers and Hostel Vectors. Several candidates including the petitioners applied pursuant to the said advertisements. The selection process was undertaken by the selection committee and orders of appointments were issued for the period of one year on a fixed monthly pay of Rs.2,000/-, 2,200/-, Rs.2800/- and Rs.4200/- in respect of Attendants (Peons), Sweepers, Clerk-cum-Typist, Teachers and Hostel Vectors.
(2) It appears that thereafter, Government issued resolution dated 28.03.2006 to provide coverage to 1000 additional disabled children. Therefore, 78 new posts were sanctioned under the said government resolution issued by the Finance Department of the State Government. It also appears that thereafter, by order dated 13.06.2006, the approval of the State Government was taken for appointment of additional staff as provided for in Government Resolution dated 28.03.2006 and in line with government resolution dated 16.02.2006. The approval order dated 13.06.2006, stipulates that an Assistant Teacher is to be given a fixed monthly pay of Rs.3,500/- It was also stipulated that the conditions provided in government resolution dated 16.02.2006 would govern the service of Assistant Teacher and Craft Teacher. In the Year2009, 6th pay commission came into Page 28 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 force and the State Government vide government resolution dated 12.02.2009 adopted the recommendation of the 6th pay commission. The fixed monthly pay of Rs.3500/- was hiked to Rs.5000/- from 01.05.2010. It appears that the benefit, which was granted to the petitioners of the 6th pay commission also came to be withdrawn and the petitioners were once again placed in the pay-scale as provided for by Government Resolution dated 15.09.2000. This was done despite the fact that Government Resolution dated 15.09.2000 was substituted by revised fixed monthly pay as per GR's dated 16.02.2006, 01.08.2006 and 29.04.2010.
(3) It is in this background that the petitioners have prayed that they must be paid fixed monthly pay as per Government Resolution dated 16.02.2006 and 29.04.2010, which provides for pay as per the provision of 6th pay commission. We are of the view that the reliefs, which have been prayed for in the petitions pales into insignificance. We need not go into the issue as to whether the petitioners must be paid monthly pay as per Government Resolutions dated 16.02.2006 and 29.04.2010 because both the Government Resolution provide only for a fixed pay and nothing beyond that as per the policy of the State Government.
10.We find that the issue is squarely covered by the judgment of this very bench rendered in writ Petition (P.I.L. No.49/11), wherein the issue was as to whether the State Government was exploiting unemployed persons by paying wages lesser than the prescribed scale for same and equivalent posts on which Page 29 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 persons are performing similar duties, responsibilities, accountabilities with same qualification, including those who have been appointed after following legal procedure, and thereby, less than minimum wages. This Court held in Shri.Yogkshem Foundation (Supra) as under:-
18. Bearing in mind the aforesaid principles, we are of the firm view that in this case, the defence of the State Government of additional financial burden is not tenable in the eye of law. If the State Government thinks that it is financially weak, it is entitled to reduce the scale of pay of all the employees having regard to its financial capability. Similarly, experience is one of the factors for assessing the salary payable to its employee and for that reason, the scale of pay is evolved providing increase in scale as the experience of an employee grows. But as pointed out by the Supreme Court in the case of U. P. Land Development Corporation and Anr. v. Mohd.
Khursheed Anwar and Anr (supra), the newly appointed employees must be given the lowest approved scale payable to the employee doing similar type of job when their qualification and mode of selection are the same and the State Government has also decided to select them being fully satisfied with their merit in the process of selection. Once the State Government having regard to its financial capability introduced the scale of pay recommended by the pay commission, and the newly appointed Page 30 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 employees having been found to be suitable for doing the job for which they are selected on merit, for the lack of experience the Government can for a reasonable period keep them at a fixed scale of pay but the total remuneration payable to such newly appointed employee doing job in a given post should not be less than the amount fixed by the pay commission and approved by the State Government in lowest grade of such scale of pay. In other words, the newly appointed employee before getting the benefit of the first increment in the scale should get the total amount payable to an employee in the lowest grade of scale for that post.
19. At the same time, the period, the newly employed employees would remain in the lowest grade of scale before completion of the period of probation, should be treated to be part of their service-period for all future service benefit including the retiral ones once they are found to be suitable on completion of probation period. In other words, the period of probation should be also the part of service on successful completion of probation.
38. We, therefore, find that this Public Interest Litigation should be allowed. The newly appointed employees, before getting the benefit of the regular scale on being found to be suitable on completion of the fixed period, should get at least, the total amount payable to an employee in the lowest grade of pay scale for that Page 31 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 post from the date of their appointment. Similarly, the period during which employees would remain in the fixed scale before completion of the period of probation should be treated to be part of their service- period for all future benefits including the retiral ones once they are found to be suitable on completion of probation period."
11.In the aforesaid view of the matter, we are convinced by the fact that the petitioners serving as teachers in the schools for the disabled children are entitled to get the minimum of the pay- scale prescribed for the respective scale of pay available to the teachers doing the same job. The petitioners who have completed five years of service from the initial appointment i.e. from 2000 shall be placed in the regular pay- scale. The newly appointed employees, before getting the benefit of the regular scale on being found to be suitable on completion of the fixed period, should get at least, the total amount payable to an employee in the lowest grade of pay-scale for that post from the date of their appointment. The first five years of service from the date of initial appointment shall also be treated to be part of their service period for all future benefits including the retiral one.
12.The writ-petitions are allowed to the aforesaid extent. The State Government is directed to modify the scheme accordingly in terms of our directions and shall extend the benefit of our directions from the date of the appointment as Assistant Teachers in schools for the disabled children run Page 32 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 and managed by institutions duly registered and recognized by the State Government under Section 51 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995."
33. In case of Regional Probation & After Care Association v. State of Gujarat in Special Civil Application no. 3570/1993 vide judgment dated 14.06.2006, learned Single Judge directed the State Government to give all the benefits to NGO run institution at par with those run by the Government as under:
"The present petition is filed by the Regional Probation and After Care Association, a public trust registered and incorporated under the provisions of the Bombay Public Trusts Act, through its Chairman, Yakubhai M. Bhana along with the employees of the petitioner- trust.
The petitioner trust maintains and runs two observation homes for the purpose of care and protection of children. Both these observation homes are recognised by the Government of Gujarat, through its Social Welfare Department. The petitioner-trust has approached this Court for the relief in the nature of a direction to the respondents to give grant-in-aid to the petitioner-trust for giving benefits like Medical Allowance, Leave Travel Concession, Uniform, Washing Allowance, Leave Encashment, Festival and Food Allowance and all other allowances as granted to the employees of observation homes/ remand Page 33 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 homes run by the Government. The trust has also prayed for grant of other benefits, such as, bonus, pension, gratuity and other similar benefits as granted to the employees of observation homes/ remand homes run by the Government.
2. It is the case of the petitioner- trust that there are about eight such observation homes run by public charitable trusts while there are 16 observation homes which are run by the Government. The services rendered by observation homes run by public charitable trusts are similar and identical in nature to that of the services rendered by observation homes run by the Government. It is also the case of the petitioner-trust that the duties discharged by the employees of the observation homes/ remand homes run by the public charitable trusts and the duties discharged by the employees of the observation homes/ remand homes run by the Government are the same and there is no distinguishing factor on account of which the employees of the observation homes run by the public charitable trust can be denied any benefit which is given to the employees of the observation homes run by the Government.
3. Mr.Dave, the learned advocate appearing for the petitioners invited attention of this Court to the order passed by this Court (Coram: A.M. Kapadia, J.) on 23rd February 2001. This Court has placed on record the factual aspects of the matter in para 3, and thereafter in para 4 the Court has considered the submissions of the learned advocate for the petitioners, Page 34 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 particularly, the decision on which the learned advocate relied upon for grant of relief, in the matter of State of Maharashtra Vs. Manubhai Pragaji Vashi, reported in A.I.R. 1996 SC 1.
The learned advocate Mr.Dave relied upon the observations made by this Court in para 5 of the said judgement. The same is reproduced hereunder for ready perusal:
"It may be noted that this petition came to be filed in the year 1993 and the judgement relied upon by Mr.Dave is of 1996. Therefore, it would be more appropriate if the Government considers the petition as a representation in the light of the judgement of the Supreme Court in State of Maharashtra (supra) which is squarely applicable to the facts of the present case and decide the issue within a reasonable period during the pendency of the petition."
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9. Having heard the learned advocates and having perused the judgement of the Hon'ble the Apex Court in the matter of State of Maharashtra Vs. Manubhai Pragaji Vashi (supra) and the decision of this Court in Special Civil Application No.2915 of 1995, this Court is of the opinion that the decision of the Hon'ble the Apex Court is squarely applicable to the facts of the present case and therefore, the petitioners are entitled to the reliefs as prayed for.
10. The distinguishing feature pointed out by the learned advocate on which the Page 35 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 decision of the Hon'ble the Apex Court is applicable, also considered. In the case before the Hon'ble the Apex Court the facts were that the colleges run by private management and colleges run by the Government were treated differently. Same are the facts in the case before this Court. Here the Observation Homes run by public trust are treated differently than the one run by Government. Therefore, the decision of the Hon'ble the Apex Court will govern the field. It is also required to be noted that in the decision of this Court in Special Civil Application No.2915 of 1995, the institutions seeking parity were for two different sets of subjects. Though the institutions were engaged in social welfare activity, one set of institutions were engaged in welfare and upliftment of handicapped women and children and rendering assistance to the poor, destitute, needy widows, orphan women, girls and children, the other set of institutions were engaged in the field of social welfare of handicapped persons. That being so, this Court finds no reason why the relief as prayed for be denied to the petitioners.
11. Since the respondents have not disputed the fact of discharge of the same duties by the employees of the petitioner-public trust as that of the employees of observation homes/ remand homes run by the Government, the principle of equal pay for equal work will apply. Here, the term, 'pay' will include all allowances also and not the mere pay scale. That being so, the employees of the petitioner-public trust shall be entitled to receive all the benefits which are received by the employees of the observation homes/ Page 36 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 remand homes run by the Government.
12. In the result, this petition is allowed. The respondents are directed to give grant-in-aid to the petitioner- trust for the benefits like Medical Allowance, Leave Travel Concession, Uniform, Washing Allowance, Leave Encashment, Festival and Food Allowance and all other allowances as granted to the employees of observation homes/ remand homes run by the Government along with the benefits like bonus, pension, gratuity and other similar benefits which are granted to the employees of observation homes/ remand homes run by the Government. Order/ letter dated 17th February 1992 issued by the respondent authorities is hereby quashed and set aside. Rule is made absolute. No order as to costs."
34. The Division Bench in LPA No. 1315/2006 confirmed the order passed by learned Single Judge in Special Civil Application No. 3570/1993 as under :
"5. In all the matters, the only question to be considered is whether the employees of the Trust running the Observation Homes/Remand Homes, which are provided grant-in-aid and governed by Grantin-Aid Code, are entitled to the benefits of various allowances, as are being made available to the employees working in such Homes maintained by the State Government, or not?
6. The short facts, which can be said as common in respect of all the three matters, are as under:-Page 37 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022
C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 6.1 All the Institutions concerned in the respective petitions are Charitable Trust running Observation Homes as well as Homes for Care and Protection for juveniles and other children entitled for the benefits of the Care and Protection. It is an admitted position that they are approved and recognized for the purpose of providing 100% grant by the Government and it is also an admitted position and on that aspect, there is no dispute that so far as providing of grant to all the Institutions for running Homes, they are governed by the provisions of Grant-in-
Aid Code finalized and approved by the Government Resolution dated 12.8.1992 as per the recommendation of R.K. Shah Committee. Even in the memo of LPA No.1315 of 2006, the statement is made on behalf of the State Government that the original petitioners are receiving 100% grant and governed by Grant-in-Aid Code and such is also the position in LPA No.1913 of 2007 as well as in SCA No.5787 of 1996.
6.2 It appears that in LPA No.1315 of 2006, the learned Single Judge found that the issue for entitlement of the allowances at par with employees, who are working in the Homes run by the Government is covered by the decision of the Apex Court in the case of State of Maharashtra v. Manubhai Pragaji Vashi and Others, reported in AIR 1996 (1) SC, 1, and not the decision of another learned Single Judge of this Court in SCA No.13666 of 1994 and others decided on 28.4.1997. The learned Single Judge, having found that the same treatment is required to be given to the employees working in the Institutions run by the Public Trust, for which the Grant-in-Aid Page 38 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 is available, the principles of equal pay for equal work will apply. The learned Single Judge observed that the term 'pay' include all allowances and also not mere 'pay-scale' and, therefore, it was found by the learned Single Judge that the employees of the petitioner Public Trust shall also be entitled to receive all benefits, which are being received by the employees of the Observation Homes/Remand Homes run by the Government and consequently, the order was passed.
6.3 Whereas, in LPA No.1913 of 2007, another learned Single Judge, while dealing with the SCA No.1843 of 1999, found that the State Government could not be held liable to make payment of the gratuity to the employees/workmen working with the Institution run by Charitable Trust and quashed the order of the Appellate Authority under the Payment of Gratuity Act, but held that the liability shall be of the Trust, since the Trust, in any case, had not come up in the writ petition.
6.4 In SCA No.5787 of 1996, there is no order of the learned Single Judge, but the grievance on the part of the petitioner is that the authority under the Payment of Gratuity Act, has found that the gratuity is payable and, therefore, has directed for payment of gratuity of Rs.40,021.05 with interest at the rate of 10% per annum. When the payment could not be made on account of the non-sanction of grant for such purpose, the authority under the Payment of Gratuity Act has issued notice for attachment and under these circumstances, they have preferred the present petition.
Page 39 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022
7. As such, we would have further considered the aspect as to whether the employees of the Institution run by the Trust or a non Governmental organization running Homes for juveniles and Care and protection would be entitled to have the same parity for the purpose of payment of allowances and other service benefits at par with the Government employees or not, keeping in view the aspects that the employers are different, the service conditions are different, the disciplinary actions may be different, and whether the principles of equal pay for equal work could be applied or not and further whether the word 'pay' would include other allowances available or not. The question of whether any discriminatory treatment has been given or not could be considered in light of the aforesaid position governing the service conditions of the employees working in the Homes run by the Government and working in the Homes run by the Institutions other than the Government or non-Governmental organization. However, keeping in view the facts of the present case and the reasons mentioned hereinafter, we find that such aspect may not be required to be examined further when the Grant-in- Aid Code, which is applicable to all the employees of the respective Institutions provides for the availability of the pay and allowances at par with the employees working in the Homes run by the Government.
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13. In view of the aforesaid, we find that when the grant for the allowances at par with the employees working in the Page 40 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 Homes run by the Government is available as per the Grant-in-Aid Code, the other aspects as to whether the parity should be granted by invoking the principles of equal pay for equal work should be applicable in the matter of payment of allowances or not, is not required to be further examined. It is true that the record of SCA No.5787 of 1996 was not before the learned Single Judge, who decided SCA No.10483 of 1999 and SCA No.3570 of 1993, but we find that when it is an admitted position that the Grant-in-Aid Code is applicable to the concerned Institutions, the matter can be examined on the basis of the express provisions of the Grant-in-Aid Code for the purpose of the benefits available to the employees working in the respective institutions and the reimbursement of such benefits by the Government by way of grant as per the Grant-in-Aid Code.
14. Hence, the following orders:-
(a) It is held that the employees working in the Homes run by the NGOs (original petitioners in the respective petitions) would be entitled to all allowances as are available to the employees working in the Homes run by the Government in capacity as the Government service. The State or its concerned authorities would be required to reimburse the grant for such purpose for the concerned employees of the respective Institutions. So far as the availability of the gratuity is concerned, we find that the position will remain the same at par with the employees working in the Homes run by the Government, inasmuch as if such gratuity is available to such employees working in the Homes run by the Page 41 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 Government the same would equally be available to the employees working in the Homes run by the NGOs like the original petitioners. However, it is clarified that all benefits of the allowances at par with the employees working in the Homes run by the Government would be available on fulfilling the conditions that such posts were sanctioned by the competent authority concerned and the recruitment process for employment of such person is duly followed in accordance with law by the concerned original petitioner Institutions.
15. In view of the aforesaid, Special Civil Application No.5787 of 1996 shall stand allowed to the aforesaid extent. Until the grant is reimbursed after examining the question of availability of gratuity by the competent authority of the Government, warrant for attachment of the property shall not be executed. The rights of the parties shall be governed thereafter accordingly.
16. Letters Patent Appeal No.1913 of 2007 shall stand allowed to the aforesaid extent and the order of the learned Single Judge shall stand set aside accordingly.
17. Letters Patent Appeal No.1315 of 2006 shall also stand partly allowed to the extent that the direction for availability and entitlement of the allowances at par with the employees of the Homes run by the Government, as observed by the learned Single Judge, shall remain, but with the condition that the posts for such purpose are duly sanctioned by the concerned Authority Page 42 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 and such employees have entered the service after following concerned recruitment Rules as approved by the competent Authority."
35. In case of Samaj Suraksha Khata Manya Swaichhik Sanstha Employees v. State of Gujarat in Special Civil Application No.2321/2004 and allied matter, vide judgment dated 2.5.2017, this Court Coram (Hon'ble Mr.Justice P.P. Bhatt, As His Lordship was then) directed the State Government to give the benefits to the employees of NGO getting 100% grant which are available to the Government employees and those who are working with the Government institution under the Social Welfare and Social Defense department as under :
"12. As aforesaid, similar issue was considered by this Court in Special Civil Application No.3570 of 1993 and Special Civil Application No. 10483 of 1999. The Special Civil Application No. 3570 of 1993 was allowed by this Court directing the respondent-State Government to give grant-in-aid to the petitioner trust for the benefits like Medical Allowance, Leave Travel Concession, Uniform, Washing Allowance, Leave Encashment, Festival and Food Allowance and all other allowances as granted to the employees of observation homes/ remand homes run by the Government along with the benefits like bonus, pension, gratuity and other similar benefits which are granted to the employees of observation Page 43 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 homes/remand homes run by the Government. The Special Civil Application No.10483 of 1999 filed by the State of Gujarat was also allowed by holding that the State is not liable to make payment of gratuity and observed that against the liability fixed upon the respondent-Trust, the said Trust has not come up with any Writ Application, therefore, their liability is absolute. Being aggrieved and dissatisfied with the judgment dated 14.06.2006 in Special Civil Application No. 3570 of 1993, the State of Gujarat preferred Letters Patent Appeal No. 1315 of 2006, and being aggrieved and dissatisfied with the judgment dated 03.08.2007 in Special Civil Application No. 10483 of 1999, the Trust through its Trustees, preferred Letters Patent Appeal NO. 1913 of 2007. Since, Special Civil Application No. 5787 of 1996 preferred by the District Probation and After Care Association involves similar aspects, all the three matters i.e. Special Civil Application No. 5787 of 1996, Letters Patent Appeal NO. 1913 of 2007 and Letters Patent Appeal No .1315 of 2006 were heard together and the Division Bench of this Court (Coram : Jayant Patel and Mohinder Pal, JJ.) vide oral judgment dated 05.12.2012 allowed Letters Patent Appeal 1913 of 2007, Special Civil Application No. 5787 of 1996 and partly allowed Letters Patent Appeal No. 1315 of 2006.
13. Although the above decision taken by the Division Bench of this Court was challenged by the respondent-State Government by filing Special Leave Petition, but it is also a matter of fact that no stay has been granted against the said judgment and order passed by the Division Bench of this Page 44 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 Court.
14. Under the circumstances, the respondent-State Government is bound to follow the directives given by the Division Bench of this Court. The case of the petitioners is also similar to the above mentioned Special Civil Application No. 5787 of 1996, Letters Patel Appeal No. 1913 of 2007 and Letters Patel Appeal No.1315 of 2006. Therefore, in view of the aforesaid decision, this Court is of the view that the petitioners, who are rendering services against the sanctioned posts in N.G.O's (Non-Government Voluntary Organisation), which are Grant-in-Aid institutions, are also eligible and entitled to get benefit available to the Government employees, and those who are working with the Government institutions under the Social Welfare and Social Defence Department."
36. Thus, in view of the above conspectus of law and considering the facts of the present case, there is no difference between the appointment procedure, qualification and duties discharged by the employees of the hostel getting 90% grant and employees of hostel getting 100% grant. The petitioner- Union has been able to demonstrate parity in the duties and responsibilities of the members of its Association by establishing that the subject post occupied by the members of the petitioner-Union are required to discharge equal work of equal value as the Page 45 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 similar post held by the similarly situated employees of Ashram Shalas and hostels getting 100% grant. Therefore, members of the petitioner-Union discharging the identical duties cannot be treated differently in the matter of their pay merely because they are employed in the hostels getting 90% grant-in- aid. It is apparent that the members of petitioner-Union are performing their duties of the same quality and of the same degree as that of similar employees of Ashram Shalas and hostels getting 100% grant. There is nothing on record to point out that the members of petitioner-Union are having different degree of responsibility reliability and confidentiality which entitles them to get only fixed pay vis-à-vis the employees of the Ashramshala and hostels getting 100% grant. Only because there is a difference of amount of grant-in-aid from the State Government by different NGOs, there cannot be any discrimination for payment of pay of members of the petitioner- Union as per the parameters laid down by the Apex Court for applying the principle of "equal pay for equal work" as stated here in above.
37. In view of above stated legal position with regard to the application of principle of "equal pay for equal work" in the facts of the case, members of the petitioner-Union are Page 46 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022 C/SCA/26938/2006 CAV JUDGMENT DATED: 29/07/2022 entitled to get at-least minimum pay scale payable to the employees who are similarly situated in Ashram Shalas/hostel getting 100% grant from the State Government.
38. Therefore, for the foregoing reasons, the petition succeeds and is accordingly allowed. The members of the petitioner-Union are entitled to get pay scale or at-least minimum pay scale equivalent to the similarly situated employees of Ashram Shalas or hostels getting 100% grant from the State Government.
39. The respondents are directed to fix the same pay scale of similarly situated persons of Ashram Shalas and Hostels getting 100% grant-in-aid for the respective post held by the employees of Hostels getting 90% grant instead of fix pay. Respondent - State authorities are directed to release adequate amount so as to meet with the responsibility of making such payment. Such exercise shall be completed within 12 weeks from the date of receipt of this order.
40. Rule is made absolute to the aforesaid extent with no order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 47 of 47 Downloaded on : Fri Jul 29 20:52:59 IST 2022