Gujarat High Court
Patel Hardikkumar Ravindrabhai vs District Education Officer & 6 on 9 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/12159/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 12159 of 2015
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PATEL HARDIKKUMAR RAVINDRABHAI....Petitioner(s)
Versus
DISTRICT EDUCATION OFFICER & 6....Respondent(s)
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Appearance:
Mr RAJENDRA PATEL, ADVOCATE for the Petitioner(s) No. 1
Mr RONAK RAVAL, AGP for the Respondent(s) No. 1 - 3
NOTICE SERVED BY DS for the Respondent(s) No. 4 - 7
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CORAM: HONOURABLE Ms. JUSTICE SONIA GOKANI
9th January 2017
ORAL ORDER
1. On account of inaction on the part of respondent No.1-District Education Officer in not fixing and extending proper pay of the petitioner, and also on account of the action of fixing wrong pay, this writ petition is preferred by the petitioner under Article 226 of the Constitution of India.
2. The facts, in capsulized form, are as under:-
3. Pursuant to an advertisement issued by the respondent No.4-School for filling up of the post of a Drawing Teacher in Sheth G.S. Patel High School, the District Education Officer - respondent No.1 issued a "No Objection Certificate" on 23rd November, 2005.
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4. The petitioner applied for the said post on 28th November, 2005. After the due procedure was undertaken, he came to be selected on the said post. The respondent No.4-School issued a letter to the office of the DEO on 28th April, 2006 seeking permission to give appointment to the petitioner.
Such a permission was extended and an appointment letter came to be issued in favour of the petitioner on 25th May, 2006. He resumed his duties on 12th June, 2006 after being permitted by the school to do so and the petitioner completed his service of five years on a fixed pay of Rs. 2500/- on 11th June, 2011.
5. On completion of service of five years in fixed pay, the respondent No.4 - School sent a proposal for confirmation of his service and started giving full pay to the petitioner in the prescribed scale of pay.
6. Before the school sent a proposal as aforesaid, three classes of standard VIII went in Higher Primary section, as per the new policy of the State Government. As these three classes came to be closed in the Secondary Section, the petitioner was declared "surplus" vide letter dated 19.6.2012.
7. The respondent No.1-DEO issued a letter dated 27th June, 2012 adjusting the petitioner as a Page 2 of 19 HC-NIC Page 2 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER "Librarian" in Shri P.R. Patel High School-respondent No. 5. He was relieved by the respondent No.4 on 29.6.2012, after the school hours and the respondent No. 5 permitted him to resume duty w.e.f. 30.6.2012 before the school hours.
8. On 11th June, 2011, the petitioner completed 5 years on a fixed pay of Rs. 2500/- and he was declared "surplus" in June, 2012. It is stated that between June, 2011 to September, 2011 and from October, 2011 to June, 2012, he was paid fixed pay of Rs. 5000/- and Rs. 9400/- respectively by the respondent No. 4. The proposal was sent by the school on 28th September, 2012 to the office of the DEO to start full pay to the petitioner.
9. Respondent No.1 issued an Office Order dated 11th October, 2012 declaring that the petitioner is entitled to the pay scale of Rs. 5200- 20200 with grade pay of Rs. 2800/- with effect from 12th June, 2011. It was also provided that the next date of increment would be July, 2012. Thus, the pay of the petitioner came to be fixed as basic Rs. 5200/- + Grade Pay Rs. 2800/- = Rs. 8000/- with effect from 12th June, 2011.
10. It is the grievance of the petitioner that respondent No.1 committed a serious mistake in Page 3 of 19 HC-NIC Page 3 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER fixing the pay of the petitioner vide Office Order dated 11th October, 2012. Other similarly situated drawing teachers, on completion of period of five years were granted by the District Education Officer pay of Rs. 8560/- + Grade Pay Rs. 2800 = Rs. 11,360/- in pay scale of Rs. 5200 - 20,200/-. 10.1 The petitioner, therefore, preferred a representation to the respondent No.1 on 1st November, 2012 which was forwarded through the school to the DEO.
10.2 Another representation was made on 4th October, 2013 addressed to the respondent No.1- DEO by the respondent No. 5 where the petitioner is serving after he came to be declared as surplus. 10.3 As no response was given to the same, the petitioner again made an application on 18th June, 2014 to the respondent No.1 under the provisions of Right to Information Act, 2005 seeking details of those Drawing teachers who have completed five years service in fix pay of Rs. 2500/- in pay scale of Rs. 5200 - 20200, working in the very district. This was responded on 9th July, 2014 wherein, the petitioner was informed to consult the schools as all the schools of District were informed to supply the information sought by the petitioner vide Clause 2 Page 4 of 19 HC-NIC Page 4 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER of his application.
11. In response to this letter dated 9.8.2014 issued by DEO, the petitioner received four different letters from four different schools, supplying requisite information i.e. :(1) Sheth V.R. Bharatiya Vidyalaya and Parikh C.K. Higher Secondary School, supplied information qua fixation of the pay of Narendrakumar Kantilal Thakar, Assistant Teacher (Drawing Teacher), H.S.C., ATD whom the DEO issued Office Order dated 12.5.2009 of fixing pay of Rs. 8560+Grade pay of Rs. 2800/- = Rs.11,360/- w.e.f 15.2.2007. (2)Letter dated 15.7.2014 of Shri Jaykorbai Vidya Mandir giving information qua fixation of the pay of Patel Daxaben Babulal, Assistant Teacher(Drawing Teacher) in whose case office order was passed by the DEO fixing her pay as was done in case of Narendrakumar Kantilal Thakar; (3)Likewise in case of one Shri Patel Ghanshyambhai Kantilal, Assistant Teacher (Drawing Teacher), Shri Ram Sarva Vidyalaya, the pay given is the same vide office order dated 29.6.2011.
12. Likewise, Harshadkumar Dashrathbhai Patel of T. J. High School, Mehsana also vide office order dated 12.6.2009 issued by the respondent No.1- Page 5 of 19 HC-NIC Page 5 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER DEO is getting the same pay in pay scale of Rs. 5200 - 20200 w.e.f. 11.6.2007.
12.1 Though the petitioner was similarly situated, he having been denied the equal treatment by DEO, the petitioner wrote the third letter dated 7.8.2014. On 19.11.2014, the petitioner made a written request to the school for the same. In response to the same, the school gave a letter dated 19.11.2014 to the petitioner wherein, it did not supply full text of the letter dated 8.4.2013. The petitioner therefore, issued a notice which was replied on 2/1/2015 which according to the petitioner, is a misconceived reply. According to the said reply, all those persons (teachers) have been wrongly given pay and therefore, the petitioner cannot demand pay band of Rs.8560-Grade Pay Rs.2800/- = Rs.11,360/-.
13. The petitioner urges that Notifications dated 27.2.2009 issued by Finance Department of the Government of Gujarat speaks of revised pay scale w.e.f. 1st January, 2006, in the pay scale of Rs. 4500-125-7000 (PB-1) which came to be revised to Rs. 5200-20200 with corresponding grade pay of Rs. 2800.
14. The petitioner is, therefore, before this Court Page 6 of 19 HC-NIC Page 6 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER seeking the following prayers :-
"(A) That this Hon'ble Court be pleased to admit and allow this petition.
(B) That this Hon'ble Court may kindly be pleased to issue writ of mandamus or any other appropriate writ, order of direction, directing the respondents No. 1 to 3, especially respondent No.1 to treat the petitioner at par with other four teachers, whose examples are given in this petition (Annexure H, I ,J & K) and to extend pay of Rs.8560/- + Grade Pay Rs.2800/- = Rs. 11,360/- to the petitioner w.e.f.
12.6.2011 from which he became eligible to have salary in pay scale on completion of five years period, the manner in which the same is extended to others and for that, this Honourable Court may kindly be further pleased to quash and set aside the Office Order dated 11.10.2012 (Ann.B) and further be pleased to direct DEO to issue New Office order accordingly.
(C) This Honourable Court may kindly be pleased to quash and set aside decision/letter No. 6004, dated 8.4.2013 of DEO, declaring the same as arbitrary, unjustified, unreasonable, irrational and illegal, duly issued to respondent No. 4 - Sheth G.S. High School referred in letter dated 19.11.2014 (Annex:M) of this school vide which proposal of the petitioner was sent through the school for amendment in office order Page 7 of 19 HC-NIC Page 7 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER dated 11.10.2012 (Ann:B) is being returned and it is communicated that, after the decision of Government is received qua entry level, procedure /exercise will be undertaken.
(D) This Hon'ble Court may kindly be pleased to declare letter dated 2.1.2015 (Annex. O) issued by DEO, as arbitrary, unjustified, unreasonable, irrational and illegal and further be pleased to quash and set aside the same, addressed to advocate of the petitioner informing that no decision is possible in the case of the petitioner;
(E) This Honourable Court may kindly be pleased to declare letter dated 19.3.2015 (Annex : Q) issued by DEO, as arbitrary, unjustified, unreasonable, irrational and illegal and further be pleased to quash and set aside the same.
(F) That this Hon'ble Court may kindly be pleased to direct the respondent No.5 -School to prepare the bill of arrear and interest to be paid to the petitioner till payment and to send the same to the DEO for clearance and payment.
(G) That this Hon'ble Court may kindly be pleased to direct DEO and its office to clear the bill of arrears worth Rs.3,43,975/- till July 2015 and thereafter and to make the payment of the same along with 9% interest i.e. Rs. 73,397/- , as on July, 2015 and thereafter till the date of payment.
(H) Pending admission, hearing and final disposal of Page 8 of 19 HC-NIC Page 8 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER this petition, this Honourable Court may kindly be pleased to direct the respondent No.1 to 5 to make the payment of salary of August, 2015 to be paid in September, 2015, considering basic Rs. 10,020/- (Ann:S) of the petitioner with all admissible allowances on the same accordingly and thereafter, regularly with increment subject to final outcome in this petition and on undertaking being given to the effect that, if the petitioner losses in this petition, he will make payment back in the manner in which it is paid.
It is further prayed that, respondent No.5 be directed to send the bill of salary of the petitioner for the month of August, 2015, to be paid in September, 2015 considering basic salary of Rs.10,020/- and thereafter, regularly with increment, till final disposal of this petition.
(I) That this Hon'ble Court may kindly be pleased to award the cost of Rs.35,000/- (Rupees Thirty five thousand only) in favour of the petitioner and against respondent No.1 to 3. It is also prayed to award cost, towards mental stress, expenses of journey and other hardship, which this Honourable Court may deem fit in the facts and circumstances of the case. (J) That this Honourable Court be pleased to grant such other and further relief(s) as is/are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice."
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15. An affidavit-in-reply is filed by Ms.Rekhaben Pravinkumar Pandya in her capacity of Education Inspector contending inter alia that the pay given to those four (4) teachers was given by mistake considering the GR dated 27.2.2009, and the same is not applicable to those teachers and to others also therefore, on 7.9.2015,earlier order dated 12.6.2009 fixing their pay was suspended. The petitioner is working as a teacher in grant-in-aid school and his pay is fixed as per GR dated 16.4.2009. So far as the petitioner is concerned, present pay scale given to him is in accordance with the Government Policy of teachers of grant-in-aid Institution.
16. Rejoinder-affidavit is filed by the petitioner stating therein that all the teachers of Mehsana District serving as Drawing teacher are in the pay scale given to those four teachers. There are other teachers over and above these four teachers, who are also getting Rs. 8560/- and the said benefit is not extended to the petitioner. He also has sought details from the District Bharuch, Anand, Surendranagar and Jamnagar. It is a universal policy of the State Government to grant Rs.8560/- to the Page 10 of 19 HC-NIC Page 10 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER Drawing teachers.
17. It is further the say of the petitioner that the salary due to the petitioner is nearly Rs. 3,43,975/- as on 31st July, 2015, and he is also entitled to the interest @ 9% per annum. He has relied upon the notification dated 27th February, 2009 by saying that the same is issued in exercise of powers conferred by the proviso to Article 309 of the Constitution of India whereby the Governor of Gujarat has made Gujarat Civil Services (Revision of Pay) Rules, 2009 for implementation of 6th Pay Commission.
17.1 According to him, the Education Department of the State has issued GR dated 16th April, 2009 for grant of revision of pay scale to teaching and non- teaching employees of non-Government grant-in-aid schools. The petitioner since is appointed under Section 35 of the Gujarat Secondary Education Act, 1972 is entitled to the benefit of GR dated 16th April, 2009 which is meant for extending the same benefit to the teaching and non-teaching employees of non-Government grant-in-aid school. The petitioner since is appointed on 12.6.2006 and having completed five years' period on 11.6.2011, pay ought to have been extended to Rs. 8560/- but Page 11 of 19 HC-NIC Page 11 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER petitioner is granted to Rs. 5200/-.
18. Both the sides have been heard at length who have argued along the line of their respective rival pleadings.
19. The only question that deserves attention of this Court as to whether the petitioner is entitled to the benefit given to other teachers of extending pay band of Rs. 8560/- + Grade Pay 2800 = Rs.11,360 total .
20. As is quite apparent from the pleadings, the petitioner was appointed as a Drawing teacher on 25.5.2006 for the fixed period of five years and completed such five years in the year 2011. In the meantime, he had been declared as surplus and by virtue of order of DEO, he has been placed in the school of respondent No.5, after he was relieved from school -respondent No.4 on 29.6.2012. He thus joined P.R. Patel High school -respondent No.5 with effect from 30.6.2012 since after having completed 5 years' service in fixed pay of Rs.2500/- , he was declared surplus in June, 2012. From June, 2011 to September, 2011 and from October, 2011 to June, 2012 he was paid fix pay of Rs.5000/- and Rs.9400/- respectively by respondent No.4. Respondent No. 4-School sent a proposal to Page 12 of 19 HC-NIC Page 12 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER the office of DEO dated 28.9.2012 to permit full pay to the petitioner for his having completed five years' service. Vide communication dated 11.10.2012, the school gave him pay scale of Rs. 5200-20200 with grade pay of Rs.2800/- with effect from 12.6.2011.
21. The next date of increment in case of the petitioner was due in July, 2012. The pay of the petitioner came to be fixed at Rs.5200/- (basic) + Grade Pay Rs.2800/- = Rs.8000/- w.e.f. 12.6.2011. If rest of the Drawing teachers working in the very district as per the details supplied under the provisions of Right to Information Act, 2005 have been given from the year 2006 to 2007 fixed pay of Rs. 8560 + Rs.2800 = Rs.11360 in the pay scale of Rs. 5200-20200, there cannot be reason for the petitioner not to get the very pay scale.
22. The Government of Gujarat vide its Notification dated 27.2.2009 granted the benefit to those teachers who like petitioner were Government employees and for those who are working in grant- in-aid non government schools, have been availed such benefits by the Government Resolution dated 16.4.2009, of course, on their crossing the main hurdle of completing fixed pay period if appointed Page 13 of 19 HC-NIC Page 13 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER on fixed pay period initially, which in case of petitioner was of five years.
23. It is mainly contended that the Government Notification dated 27.2.2009 would have no applicability in case of employees other than the Government employees. Vide communication dated 7.9.2015 of DEO, Mahesana addressed to Daxaben Babulal, Assistant Teacher of Shri Jakorbai Vidya Mandir, the earlier order of 17th September, 2010 has been cancelled on the ground that Notification of the Finance Department dated 27th February, 2009 is applicable to the Government employees only. Likewise in case of other teachers, such order came to be passed almost more than a year back.
24. Rule 8 of Government Notification published on 27th February, 2009 speaks of pay of direct recruits who enter service on the basis of Recruitment Rules, which specifically provides for grant of fixed pay during initial period of fixed years and only after the completion of such fixed pay period stipulated in the respective Recruitment Rules, the benefits of pay scale fixed under the rules would flow.
25. Question therefore would be whether the Page 14 of 19 HC-NIC Page 14 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER Notification dated 27th February, 2009 would get attracted in case of the present petitioner. Clause 12 of Government Resolution dated 16th April, 2009 for teaching and non-teaching employees of grant in aid non-government schools are extended benefits of 6th Pay commission of resolution issued by the State Government for the employee of the State Government.
26. If one peruses Government Notification dated 27th February, 2009 and GR dated 16th April, 2009, teaching and non-teaching employees are extended corresponding pay scale against the present pay scale as that appears in the Schedule 'A' of the Notification dated 27th February, 2009. Considering the Grade Pay and Pay in pay band as appearing in the Schedule A in PB-1 (5200-20200) with grade pay of Rs. 2800 and also considering the details of Schedule B, Drawing teachers who are having pay band-1 (5200-20200) are extended Grade Pay 2800 + Pay in pay band 8560 making it total Rs.11360.
27. Government Resolution dated 16th April, 2009 which is meant for teaching and non-teaching employees of grant in aid non-government schools extended benefits of 6th Pay commission particularly Page 15 of 19 HC-NIC Page 15 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER through Clause 12. These are the very benefit of 6th Pay Commission which are extended by the State Government to the Government employees. Combined reading of Notification dated 27th February, 2009 and GR dated 16th April, 2009 clearly reveal that denying the benefit of Government Notification dated 27th February, 2009 to the petitioner is not sustainable nor an acceptable proposition.
28. At the cost of reiteration, it is to be noted that it is apparent from the resolution of the Education Department dated 16th April, 2009 is meant for the teachers of non Government School and higher secondary school and also for non- teaching staff. It is provided that those working on the fixed pay, such benefits of the 6th Pay commission would not be available to them. However, when these employees complete their tenure of fixed period and are appointed on regular post and are given regular pay scale, they shall be given benefit of 6th Pay Commission.
29. Clause 12 thus when clearly provides that all those resolutions meant for Government employee of the State Government in relation to the 6th Pay Commission would have an applicability to Page 16 of 19 HC-NIC Page 16 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER such employee of non-Government grant-in-aid schools, it is rightly claimed by the petitioner that from the date of confirmation in the service i.e. on completion of 5 years from 11th June, 2011, the petitioner also would be entitled to draw the benefits which otherwise are available to the Government employees. It is also not in dispute that the petitioner is a teacher of grant-in-aid school and his pay is fixed as per Government Resolution dated 16th April, 2009. When this very Government Resolution provides for those teachers working in grant-in-aid school to have those very benefits made available to the Government employees on their completing service of fixed pay of five years and when they are provided pay scale on regular appointment, there is not only no flaw but, it would be incumbent upon the authority to grant pay of Rs.8560/- as has been done in case of other teachers.
30. To treat the petitioner differently by the District Education Officer on any authority on the ground of being an employee of grant in aid non government school would surely amount to an act of discrimination which cannot be sustained on anvil of Articles 14 and 16 of the Constitution of Page 17 of 19 HC-NIC Page 17 of 19 Created On Sat Aug 12 03:20:03 IST 2017 C/SCA/12159/2015 ORDER India.
31. As mentioned hereinabove, the petitioner is appointed on 25.5.2006. The 6th pay commission came into effect with effect from 1st January, 2006 and vide Notification dated 16th April, 2009, the same has been made applicable in case of teaching and non-teaching staff of grant in aid non Government schools and higher secondary staff. Information given under the Right to Information Act also provide sufficient details to uphold the contention of discrimination between the employees identically situated.
32. In wake of discussion above, the communications made on 2.1.2015 and 19.3.2015 in particular by the Respondent -DEO denying the benefits to the petitioner deserves to be quashed and are accordingly quashed.
33. With the foregoing discussions, the Respondents are directed to provide the petitioner the benefit of the 6th Pay Commission from the date he became eligible on completing his fixed tenure of fixed pay of five years with effect from dated 12.6.2011 and also the arrears within the period of 12 weeks with consequential benefits from the date of receipt of copy of this order.
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34. Resultantly, this petition is allowed to the extend above with cost.
(MS SONIA GOKANI, J.) BINA Page 19 of 19 HC-NIC Page 19 of 19 Created On Sat Aug 12 03:20:03 IST 2017