Gujarat High Court
Patel Rameshkumar Dharmshibhai & vs State Of Gujarat & 3 on 26 September, 2017
Author: A.S. Supehia
Bench: A.S. Supehia
C/SCA/13687/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.13687 of 2009
With
SPECIAL CIVIL APPLICATION NO.1485 of 2010
With
SPECIAL CIVIL APPLICATION NO.7139 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S.SUPEHIA
===================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation NO of the Constitution of India or any order made thereunder ?
=================================================== PATEL RAMESHKUMAR DHARMSHIBHAI &
32....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ===================================================A ppearance:
IN SCA NO.13687/2009 MR DHARMESH V SHAH, ADVOCATE for Petitioners No.133 MR HS SONI, AGP for the Respondent(s) No. 12 RULE SERVED for the Respondent(s) No. 3 MR MUKESH A PATEL, ADVOCATE for Respondent(s) No. 4 IN SCA NO.1485/2010 MR KB PUJARA, ADVOCATE for Petitioners No.1131 MR HS SONI, AGP for the Respondent(s) No.12, 4 MR MUKESH A PATEL, ADVOCATE for Respondent(s) No. 3 RULE SERVED for the Respondent(s) No.5 IN SCA NO.7139/2010 MR DHARMESH V SHAH, ADVOCATE for Petitioners No.15 MR HS SONI, AGP for the Respondent(s) No. 12 RULE SERVED for the Respondent(s) No. 3 MR MUKESH A PATEL, ADVOCATE for Respondent(s) No. 4 Page 1 of 32 HC-NIC Page 1 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT =================================================== CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 26/09/2017 ORAL (COMMON) JUDGMENT (1) Since the issues raised in all the captioned writ petitions are same they were heard analogously and are being decided and disposed of by this common judgment.
(2) In the present petitions, the petitioners, who are serving as Primary Teachers under the RespondentMunicipal School Board, Bhavnagar, have challenged the action of the respondents in withdrawing/reducing the benefit of the higher payscale of Rs.5000 8000 to Rs.45007000.
(3) Briefly stated, the facts, material for adjudication of the present petitions, may be stated thus:
(4) The petitioners are the Primary Teachers employed by the respondentMunicipal School Board, Bhavnagar and they have been working with various schools run by the respondent School Board since last many years. The petitioners were appointed in the payscale of Rs.12002040 under the Gujarat Civil Service Services (Revision of Pay) Rules, Page 2 of 32 HC-NIC Page 2 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT 1987. Upon coming into force of the Revision of Pay Rules, 1997 w.e.f. 01.01.1996 the petitioners were placed in the payscale of Rs.40006000.
(5) The State Government introduced a scheme of Higher PayScale vide Government Resolution dated 05.07.1991, which was subsequently modified by Government Resolution dated 16.08.1994. Since the petitioners became eligible for the Higher PayScale as envisaged in Government Resolution dated 16.08.1994, their cases were accordingly considered and the higher payscale of Rs.50008000 was granted to them. The said grant of the higher payscale was sent for approval to respondent No.2 but since no decision was taken, the association of the Primary Teachers made various representations to the authorities to grant such approval.
(6) By the order dated 06.02.2010, the respondentMunicipal School Board reduced the payscale of the petitioners from Rs.50008000 to Rs.45007000. The reason assigned in the impugned order dated 06.02.2010 for reducing and fixing the Page 3 of 32 HC-NIC Page 3 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT higher payscale of the petitioners is that as per Government Resolution dated 16.08.1994, the primary teachers are entitled to higher pay scale of Rs.45007000 as per Appendix1 attached to the same. The impugned order also refers to the order dated 14.06.2005 passed by the State Government, Education Department.
(7) The order dated 14.06.2005, which is also impugned in the present petition, refers to the common judgement passed by this Court on 20.12.2004 in Special Civil Application No.11267 of 2004 and allied matters. Thus, the genesis of the entire dispute of fixing and reduction of the payscale of the petitioners is the order dated 14.06.2005. At this stage it would be apposite to refer to the aforesaid judgement passed by this Court in Special Civil Application No.11267 of 2004 and the allied matters. The entire controversy of fixation of the higher pay scale of the Primary Teachers rendering the services in the Primary School Board of the Baroda Municipal Corporation was examined threadbare. The dispute before this Court in the aforesaid petitions was that the Primary Teachers serving under the Municipal School Board were granted the lower higher pay Page 4 of 32 HC-NIC Page 4 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT scale i.e. Rs.45007000 in comparison with the teachers working in the District Education Committees, who were being paid the higher payscale of Rs.50008000. After analyzing the entire controversy and considering the different pay fixation, including the revision of pay, this Court directed the State Government to examine the issue in light of the observations made in the judgement. The observations are incorporated as under:
"28. The petitions are accordingly partly allowed. The State Government shall examine the controversies which are subject matter of these petitions afresh in light of the observations made in this judgment and particularly as to
(i) what should be the payscale payable to the school inspectors/education inspectors/supervisors for primary schools managed and controlled by Municipal Corporations/ Municipalities / District Panchayats;
(ii) when the payscale of primary teachers employed by the Municipal Corporations/Municipalities and of those employed by the district panchayats is the same, whether it is necessary to provide different first/second/third higher grade payscales for primary teachers employed by Municipal Corporations/ Municipalities."
(8) Pursuant to the aforesaid judgement of this Court, the State Government passed the impugned order dated 14.06.2005 prescribing that the Primary Teachers who do not have any promotional posts will be entitled to the Higher PayScale as per AppendixI to the Government Resolution dated 16.08.1994.
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(9) Learned advocates Mr.Pujara appearing with Mr.Shah for the petitioners in the respective petitions have vehemently submitted that the impugned orders passed by the respondent authorities is contrary to the policy and to the Rules. Mr.Pujara has stated that the teachers working in Bhavnagar Municipal School Board cannot be discriminated to the Primary Teachers working in the District Education Committees, as both are governed by the same set of Rules of Recruitments, they are inter se transferable. The recruitment and the appointing authorities are the same. He has referred to the orders granted to the other similarly situated Primary Teachers working under the respondentMunicipal School Board wherein the same would indicate that there exists a post of supervisor. He has stated that the Primary Teachers working under the District Education Committees are appointed as Kelavni Nirikshaks (Education Inspectors) whereas the Primary Teachers working under the Municipal School Board are promoted as Supervisors. Both Kelavni Nirikshaks (Education Inspectors) and Supervisors are transferred from the Municipal School Boards to the Primary Education Committee and vice versa. Thus, he has submitted that the Page 6 of 32 HC-NIC Page 6 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT Primary Teachers working under the Municipal School Board cannot be discriminated and the benefit of the higher payscale of Rs.5000 8000 cannot be denied to them.
(10) Mr.Pujara has asserted that under Section 23 of the Bombay Primary Education Act, 1947 the District Education Committees as well as the Municipal School Boards are required to maintain adequate staff of Supervisors/ Education Inspectors and, therefore, even if at a given point of time Municipal School Board does not have Supervisors/Education Inspectors, that by itself does not mean that the promotional post of Education Inspector/Supervisor is not available to the Primary Teachers. He has placed reliance on Government Resolution dated 11.12.1986, which states that such posts of Education Inspectors/Supervisors are to be filled in by way of promotion and by direct recruitment in the ratio of 75:25. He has contended that the first higher payscale of the promotional post of Education Inspectors / Supervisors is Rs.14002600, which was subsequently revised from Rs.50008000 and hence, the petitioners, who were working as Primary Teachers are entitled to the first higher payscale of the said promotional Page 7 of 32 HC-NIC Page 7 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT post of Education Inspectors/Supervisor as per Government Resolution dated 16.08.1994. He has submitted that the respondent authorities cannot fixed the higher pay scale of the petitioners relying upon AppendixI of Government Resolution dated 16.08.1994 as the petitioners are having the promotional payscale of Education Inspectors. He has also referred to Government Resolution 31.07.1982, by which the State Government has prescribed Rules of recruitment for the post of Education Inspector/Supervisors under section 23(4) of the Bombay Primary Education Act, 1947 which prescribes that the aforesaid posts are to be filled in by way of promotion and direct recruitment in the ratio of 75:25. Reliance is also placed by him on Government Resolution dated 11.12.1986, which clarifies that all Government Resolutions, Circular and Orders, etc. passed in respect of government employees shall automatically be applicable to the Primary Teachers of the Municipal Corporations/Municipalities with effect from the same date and on the same basis and, therefore, Government Resolution dated 31.07.1982 is equally applicable in respect of the Primary Teachers of the District Education Committees and the Page 8 of 32 HC-NIC Page 8 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT Municipal School Boards, including the Primary Teachers working under the respondentSchool Board.
(11) Learned Advocate Mr.Pujara has also emphasized on the Notification dated 26.02.1998 by which the pay scales of Primary Teachers and Education Inspectors in the Education Department were revised. He has submitted that in the earlier writ petition being Special Civil Application No.11267 of 2004, the said Notification was never pointed out this Court, and had it been pointed out, this Court would have restrained itself from issuing such directions.
(12) In view of the aforesaid submissions, learned advocates for the petitioners have urged that the present petitions deserve to be allowed and the respondents may be directed to confer the benefits of the higher payscale of Rs.50008000 to the petitioners.
(13) Per contra, learned advocate Mr.Mukesh Patel appearing on behalf of the respondent Municipal School Board has submitted that the impugned orders do not require any Page 9 of 32 HC-NIC Page 9 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT interference of this Court. He has submitted that the petitioners are not entitled to the payscale of Rs.50008000, and they are entitled to the next higher payscale of Rs.45007000 as there are no promotional posts available in the respondentMunicipal School Board. He has placed reliance on Clause 3(2) of Government Resolution dated 16.08.1994. He has submitted that as per said clause if there are no promotional post available, then in that case the higher pay scale benefits is to be fixed as per AppendixI attached to Government Resolution dated 16.08.1984.
(14) So far as the contention of the learned advocates for the petitioners about conferring the benefits of the higher pay scale of Rs.50008000 to the other employees is concerned, Mr.Patel has stated that the same was a mistake. He has also stated that the reliance placed on the orders filling up of the post of the Supervisors in the respondentMunicipal Board is also misconceived, as at the relevant time such orders were passed due to mistake of the authorities. Mr.Patel has stated that the appointment of those persons to the post of Supervisors was done by the concerned Page 10 of 32 HC-NIC Page 10 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT authorities at the relevant time due to error on their parts. He has stated that so far as the higher payscale of Rs.50008000 granted to one of the employees is concerned, the same is given looking to his service in the District Education Committee and not the service under the Municipal School Board.
(15) Apropos the rest of the three orders which are cited by the learned advocates for the petitioners, Mr.Patel has submitted that they are not conferred any benefits of the higher payscale. Thus, he has submitted that the petitioners cannot take advantage by citing something wrong which has taken place in past, as there was no duly sanctioned post in the setup of Bhavnagar Municipal School Board.
(16) Learned advocate Mr.Patel has submitted that since the Local Fund has taken objection to the grant of the higher payscale of Rs.50008000, the same was cancelled and instead the petitioners were held to be eligible to the higher payscale of Rs.4500 7000.
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(17) In view of the aforesaid submissions, learned advocate Mr.Patel has urged that the present petitions do not merit any acceptance, since the petitioners are not entitled to the higher payscale of Rs.5000 8000 but they are entitled to the higher payscale of Rs.45007000 in view of AppendixI attached with Government Resolution dated 16.08.1984, more particularly Paragraph No.3(2) thereof, which states that if there are no promotional post available then the employees are to be granted the higher pay scale as indicated in AppendixI of Government Resolution dated 16.08.1984.
(18) Learned advocate Mr.Dharmesh Shah appearing on behalf of the petitioners in the connected writ petitions has adopted the arguments of learned advocate Mr.Pujara, and learned Assistant Government Pleader Mr.Soni appearing on behalf of the respondentState/ authorities has adopted the arguments of learned advocate Mr.Mukesh Patel.
(19) I have considered the rival contentions made by the learned advocates appearing on behalf of the respective parties for the lis. I have also perused the documents on record.
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(20) The core issue which fastens the present petitions, is that whether the Primary Teachers working in the Municipal Primary Education Committees (known as 'Municipal School Boards') are entitled to the higher payscale equivalent to the Primary Teachers working in the District Education Committees.
(21) Before making an endeavor to deal with the aforesaid issue, it will be apposite to take note of the fact that the Primary Teachers of both the Municipal School Boards and the District Education Committees are governed by same Recruitment Rules. They have similar educational qualifications. They can be transferred inter se from the District Committee to the Municipal Boards and vice versa. Their nature of work and working hours are also same. Their recruitment and appointment is also done by the same authorities. The respondents have also acknowledged the said facts.
(22) The Primary Teachers of the Municipal School Boards on their transfer/absorption in the District Primary Education Committees are granted the benefit of higher payscale of Page 13 of 32 HC-NIC Page 13 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT Rs.50008000, whereas the Primary Teachers, who remain in the Municipal School Boards, are granted the lower payscale of Rs.4500 7000. The only difference is in the nomenclature when the Primary Teachers are transferred inter se. The promotional post of the Primary Teachers in the Municipal School Board is known as "Supervisor", whereas in the District Primary Education Committee it is "Kelvani Nirikshak"
(Education Inspector). The anomaly amongst the Primary Teachers can be justified from the judgement dated 26.07.2016 passed by this Court in Special Civil Application No.15307 of 2003 and allied matters. The same pertained to the Amreli Municipal School Board and Surendranagar District Panchayat School Committee. The Primary Teachers of Amreli Municipal School Board were granted the higher payscale of Rs.50008000 since there was a promotional post, whereas the Primary Teachers working in the Surendranagar Municipality were granted the higher payscale of Rs.4500 7000, and only on being absorbed in the Surendranagar District School Committee area they were conferred the benefit of the higher payscale of Rs.50008000. Thus, the facts enumerated in the said judgment Page 14 of 32 HC-NIC Page 14 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT enlighten the anomaly and discrimination between the two set of Primary Teachers.
(23) The Government Resolution dated 31.07.1982 issued under the powers conferred to the State Government under section 23(4) of the Bombay Primary Education Act, 1947 provides the cadre of primary teachers as feeder cadre for promotion to the post of Education Inspector/Additional District Education Inspector, and the ratio of promotion and direct recruitment is fixed as 75:25.
Thereafter, the State Government, Education Department vide Resolution dated 11.12.1988, clarified that all the Government Resolutions, Circulars and Orders etc. passed in respect of the employees of the State Government shall routinely apply to the primary teachers to the Municipal Corporations/Municipalities. The State Government framed the Assistant Education Inspector, ClassIII Recruitment Rules, 2004. Rule 2(a) postulates that the appointment to the said post shall be made by promotion of a person of the proved merit and efficiency from amongst the persons who have worked for not less than five years as primary teachers.
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(24) Under Section 20(3) of the Bombay Primary Education Act, 1947, the rates of pay and allowances and the terms of employment of the Primary Teachers and other staff of the school Board are fixed by the Government. In exercise of the said powers the State Government issued Notification dated 26.02.1998 revising the payscales of the Primary teachers and Education Inspectors/ Supervisor under the Gujarat Civil Services (Revision of Pay) Rules, 1998 w.e.f 01.01.1996. As per the Schedule of the said Notification the payscale of the Primary Teachers was revised from Rs.12002040 to Rs.40006000, and the payscale of Education Inspector (Kelvani Nirikshak)/Supervisor was revised from Rs.14002600 to Rs.50008000. As per the Appendix(1) attached to the Resolution dated 16.08.1994, the corresponding higher payscale of Rs.4000 6000 is Rs.50008000. Accordingly, the petitioners were granted the higher pay scale of promotional post of Kelvani Nirikshak, i.e. Rs.50008000. The same was duly verified and approved by the Local Fund Account authorities.
(25) The upshot of the preceding observations is that there is no dissimilarity between the Page 16 of 32 HC-NIC Page 16 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT Primary Teachers working under the Municipal School Boards and the District Primary Education Committees in terms of their recruitment, appointment, transfer, initial payscale, working hours and working conditions etc. Their service is intrinsically connected and inter se transferable. The classification made by the respondent authorities of homogeneous class of Primary Teachers is invidious. Thus, the Primary Teachers working in the Municipal School Boards cannot be discriminated in grant of higher payscale only on the ground that there is no post available. The said action of the respondents is in infringement to the fundamental rights enshrined in Articles 14 and 16 of the Constitution of India.
(26) The learned advocates for the rival parties have premised their respective submissions on Clause 3(2) of Government Resolution dated 16.08.1994.
(27) The entire controversy of conferring the higher payscale in the case of the petitioner's rests on the interpretation of Clause 3(2) of the Government Resolution Page 17 of 32 HC-NIC Page 17 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT dated 16.08.1994. In order to appreciate the rival contentions, it will be necessary to have a close look at Clause 3(2) with a view to ascertaining its true nature and import. The same reads thus:
"3(2): First higher pay scale means the pay scale immediate next to the current post, but if there are different promotional posts available for the employees, then the lowest pay scale of such promotional post shall be considered as their first higher pay scale.
But, if there is no pay scale prescribed for promotional post, then first higher pay scale shall be granted corresponding to the present pay scale as per the appendix -(1) attached to the present resolution.
But, for the feeder cadres having different pay scales, instead of fixing the higher pay scale of their promotional post, the higher pay scale shall be fixed as specified in appendix(1) annexed to present resolution."
(28) A careful scrutiny, of Clause 3(2), reveals that three categories are prescribed therein- (1) for different promotional posts available for employees, (2) if there is no promotional payscale prescribed; and, (3) where there are feeder cadres having different payscales.
(29) By the impugned order dated 06.02.2010, the payscale of the petitioners are revised and reduced from Rs.50001508000 to Rs.4500 1257000 applying the AppendixI attached to the Government Resolution dated 16.08.1994.
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The higher payscale of the petitioners is reduced by stating that "as per Resolution dated 16.08.1994, the payscale of promotional post shall be granted as higher pay scale, but if there are no promotional posts then the same is to be granted as per appendix attached to resolution. If the higher payscale of promotional post is granted though there is no such promotional post, then the same is required to be cancelled." The impugned order dated 06.02.2010 also refers to the order dated 14.06.2005. The order dated 14.06.2005 is passed after interpreting Clause 3(2) of the Resolution dated 16.08.1994 in the above terms. It also states that only those primary teachers who are serving in the Municipal School Boards having the promotional post in the set up shall be granted benefit of higher payscale.
(30) Thus, the higher payscale of the petitioners is reduced on the ground that since there are no "promotional posts"
available in the setup of Municipal School Board (Nagar Prathmik Shikshan Samiti), Bhavnagar, they are entitled to the same as per the AppendixI. In my considered opinion, both the orders dated 14.06.2005 Page 19 of 32 HC-NIC Page 19 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT and 06.02.2010 are based on the incorrect reading of Clause 3(2) of the Government Resolution dated 16.08.1994. The benefit of higher payscale is denied to the petitioners on the ground that there are "no promotional posts" available, whereas, Clause 3(2) of the Government Resolution dated 16.08.1994 does not prescribe such condition as envisaged in the impugned orders. Clause 3(2) only manifests the non prescription of "the payscale" of promotional post and not "nonavailability of promotional post". The case of the petitioners will not fall in the first category of Clause 3(2) as the same refers to "different promotional posts", which is not the case of the respondents. The same also does not refer to "Appendix1" of the Resolution. Category (3) will also not apply as the same states about the promotional posts having different feeder cadres. Thus, the case of the petitioners will only fall under category (2), which mentions about "if there is no promotional payscale prescribed". Indubitably, the "promotional pay scale" of the petitioner, i.e Primary Teachers is that of the post of Education Inspector/ Supervisor. Thus, the grant of the higher payscale to the Primary Teachers Page 20 of 32 HC-NIC Page 20 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT will not depend on the actual existence of the post in a set up but the same has to be conferred considering the "promotional pay scale". There are different Municipal School Boards in the State, which may or may not have required set up of promotional post of Supervisor, but that does not mean that the "promotional payscale" of such post does not exist. The contention canvassed by learned advocate Mr.Mukesh Patel that the promotional payscale would depend on the availability of the promotional post is misconceived, since promotional pay scale is not sine qua non to availability of post in a set up but in a cadre. In a Government set up the posts of particular cadre may not be available though there exists a promotional payscale for such posts. Such principle, if applied, may lead to anamolaous situations, as one Municipal School Board might have a promotional post, and if the other Municipal School Board does not have the setup, in that case the teachers of one school Board will have the benefit of the higher payscale of promotional post, whereas the teachers of the other school Board will be granted the benefit of the lower higher payscale as per AppendixI of Government Resolution dated Page 21 of 32 HC-NIC Page 21 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT 16.08.1994. As observed in the foregoing paragraphs, the Supervisor of Amreli Municipal School Board are being paid the higher payscale of Rs.50008000, whereas the petitioners of Bhavnagar Municipal School Board are not conferred such benefits. The policy of the higher payscale does not discriminate amongst institutions/ authorities looking to different areas where they are situated. The policy has to be applied uniformly. The intention of the Government Resolution dated 16.08.1994 can never be construed in such a restricted manner, which would lead to an incongruent situation and will be against the letter and spirit of the scheme. Hence, the impugned orders are liable to be quashed and set aside as the same are based on the misreading of categories specified in Clause 3(2) of the Government Resolution dated 16.08.1994.
(31) Though, the principle of "equal pay for equal work", will not apply in the cases where the higher payscale is prescribed in order to remove stagnation in service, in the present case, the petitioners will be entitled to the benefit by applying same as there exists a promotional pay scale of the Page 22 of 32 HC-NIC Page 22 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT post of Education Inspector/Supervisor, and the same is only denied due to lack of promotional post and not because of lack of promotional payscale. At this juncture it will be apposite to refer to the judgement of the Apex Court on the said principle.
(32) In the case of Randhir Singh Vs. Union of India, (1982) 1 SCC 618 decided by a three Judge bench, the Apex Court has observed thus:
"We cannot accept this view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department notwithstanding that their powers, duties and responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same."
(33) The Division Bench of this Court in the case of Gujarat State Govt. College Lab. Staff Association Vs. State of Gujarat, reported in 2011 (3) G.L.H. 376 on the principle of "equal work and equal" pay has observed that if there is no controversy or dispute about the parity of posts, functions and Page 23 of 32 HC-NIC Page 23 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT responsibilities of the LabAssistants in question being of higher level or about the fact of the LabAssistants in P.T.T. colleges being paid the higher wages, the equality in the payscale cannot be denied only on the basis that the LabAssistants in the P.T.T. colleges were appointed in different colleges under the same Department and were offered the higher payscale from the start.
(34) In view of the proposition of law elucidated by the Supreme Court and this Court, in my considered opinion, the petitioners are also entitled to the same payscale to that of the teachers working in the District School Boards.
(35) The next issue which requires deliberation is the assertion made by the learned Advocates for the respective parties about existence/nonexistence of the post in the set up Bhavnagar Municipal School Board.
(36) Learned advocates Mr.Pujara and Mr.Shah for the petitioners have submitted that after filing of the present petitions, Director of Primary Education had written a letter dated Page 24 of 32 HC-NIC Page 24 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT 25.06.2015 for filling up one post of Education Inspector by promotion in Bhavnagar Municipal School Board. Hence, it is submitted that the contention raised by learned advocate Mr.Patel that there is no promotional post in existence is contrary to what the authorities have taken the stand.
(37) Learned advocate Mr.Patel has stated that the aforesaid post which is indicated to be filled in by letter dated 25.06.2015 does not fall in the setup of promotional post of Supervisor.
(38) The documents on record would exposit that in the Municipal School Board, Bhavangar, where the present petitioners are serving, there exists a sanctioned post of Supervisor/Education Inspector. By the promotion orders dated 27.03.1987, three posts of Education Inspectors were filled in. The same were filled considering the Government Resolution dated 31.07.1982. By Letter dated 05.05.1989, Administrative Officer, Municipal School Board, Bhavnagar has informed the Director or Pension and Provident Fund, that one Shri Trivedi was appointed to the post of Kelvani Nirikshak Page 25 of 32 HC-NIC Page 25 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT though the requirement was of Supervisor. Thereafter, also one post of Supervisor which fell vacant in the Municipal School Board, was filled in by direct recruitment vide order dated 19.06.1990 and one Shri Rakeskumar Desai was appointed on the said post. Thus, the foregoing documents belie the contention of the respondents that there is no promotional post available in Bhavnagar Municipal School Board. The plea raised by learned advocate Mr.Patel that all the aforesaid orders were passed due to mistake does not inspire confidence as such an action could not have gone unnoticed for all these years even after the scrutiny of the local fund audit. The aforesaid contention is nothing but an afterthought, as admittedly, no action is taken against any authority for the alleged incorrect fixation of pay scale. Assuming there was wrong fixation then also the respondents cannot be permitted to take benefit of their own wrong.
(39) The Supreme Court in the case of Bhartiya Seva Samaj Trust Tr. Pres. and Anr. v. Yogeshbhai Ambalal Patel and Anr., AIR 2012 S.C. 3285, while dealing with the same Page 26 of 32 HC-NIC Page 26 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT contention has held:
"21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim allegans suam turpitudinem non est audiendus'. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong.... This concept is also explained by the legal maxims Commodum ex injuria sua non habere debet ; and 'nullus commodum capere potest de injuria sua propria'."
Thus, it is not open for the respondent authorities to contend that all the earlier orders passed by them were erroneous, in light of the fact that no efforts are made by them to withdraw the same.
(40) Learned Advocates for the petitioner in their written submissions have produced the documents in support of their contention asserting about existence of a promotional post in Bhavnagar Municipal School Board. The documents are supplied to the other side also. Reliance is placed in the Letter dated 25.06.2015, written by the Director of Primary Education, which mentions about filling up of one post of Supervisor by promotion in Bhavnagar Municipal School Board. They have placed reliance on Government Resolution dated 29.10.1969 passed by the State Government, Education Page 27 of 32 HC-NIC Page 27 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT Department, which indicates that one post of Supervisor was created in the setup of Bhavnagar School Board. It is also pointed out that vide Resolution No.41 dated 09.03.2017, passed by Bhavnagar Municipal School Board, there is reference to the Government Resolution dated 29.10.1969 sanctioning one post of Kelavni Nirikshak/Supervisor. Learned Advocate Mr.Pujara has also specified that the said resolution was sent to the State Government and it is also approved by the State Government vide letter dated 28.07.2017. He has stated that the said post which is vacant in Bhavnagar can be filled up by direct recruitment as well as by promotion in view of the Recruitment Rules.
(41) In response to the aforesaid documents and arguments, leaned Advocate Mr.Patel has submitted that letter dated 25.06.2015 cannot apply retrospectively as the post which has fallen vacant is of the year 2014. Learned advocate Mr.Patel in response to the aforesaid Resolution dated 09.03.2017, passed by his clients, (subsequently approved by the State government), has submitted that he does not deny the same, but he has submitted that the Page 28 of 32 HC-NIC Page 28 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT post which is referred in the said communication is with regard to the letter dated 25.06.2015 of Director of Primary Education Officer and the same only pertains to the sanctioned post which is created in the year 2014. Thus, he has stated that the same will not apply retrospectively in the case of the petitioners.
(42) Learned advocate Mr.Patel is unable to dispute the existence of Resolution No.41 as well as granting approval to the aforesaid resolution by the State Government vide letter dated 28.07.2017. The entire controversy in the present writ petitions is defined succinctly in the aforesaid Resolution No.41 passed by the respondent Municipal School Board. A perusal of Resolution No.41 passed by the respondent Municipal School Board will clarify that their existed a post of Supervisor since 1969. The said resolution clearly refers to Government Resolution dated 29.10.1969 by which one post of Kelavni Nirikshak/ Supervisor in the setup of Bhavnagar Municipal School Board was sanctioned. It also refers letter dated 25.06.2015 of the Director of Primary Education for filling up Page 29 of 32 HC-NIC Page 29 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT of such post. It is pertinent to note that in the said resolution, while recommending for filling up of the post by way of promotion, reliance is placed on the Recruitment Rules framed under Resolution dated 31.07.1982, Resolution dated 20.06.1992, as well as Notification dated 03.01.2004 and Government Resolution dated 06.09.2004. It is indicated that the particulars of the aforesaid Government Resolutions and Notification will apply to the Municipal School Board, Bhavnagar. It further also refers that one post of Kelavni Nirikshak/Supervisor is required to be filled by direct recruitment, and the same shall carry the payscale of Rs.930034800 and Grade Pay of Rs.4200, as per the State Government norms. Further, it also states that after the appointment the concerned Kelavni Nirikshak/Supervisor, he shall be granted the benefit of the higher payscale. The last paragraph of Resolution No.41 also refers that the said post of Kelavni Nirikshak/Supervisor shall also be filled in by way of promotion. It also refers that those Primary Teachers shall be granted the higher payscale after completion of nine years' service of Kelavni Nirikshak/ Supervisor. The aforesaid resolution was Page 30 of 32 HC-NIC Page 30 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT sent for approval to the State Government and by letter dated 28.07.2017 the same is approved by observing that the post of Education Inspector/Supervisor can be filled in by way of direct recruitment as well as by way of promotion. Thus, the tenor of the Resolution No.41 passed by the Respondent Municipal School Board, does not leave any scintilla of doubt that the post of Supervisor is in existence since 1969, and the same is intermittently filled in by promotion/appointment of Primary Teachers, which is eminent from the promotional orders relied by the petitioners.
(43) In the backdrop of the aforenoted factual and legal position, the submission canvassed by the respondents there does not exist promotional post for Primary Teachers in Bhavnagar Municipal Board does not deserve credence.
(44) In view of the foregoing observations and analysis, and bearing in mind the law explicated by the Supreme Court, in my opinion, the impugned orders are quashed and set aside. The respondents are hereby directed to grant the benefits of the higher Page 31 of 32 HC-NIC Page 31 of 32 Created On Sat Oct 07 07:36:27 IST 2017 C/SCA/13687/2009 JUDGMENT payscale of Rs.50008000 to the petitioners. The orders granting the higher payscale of Rs.50008000 to the petitioners are restored. Consequential benefits arising out of the present judgement shall be paid to the petitioners within a period of 06 (six) weeks from today. If any benefits which are already paid to the petitioners in view of the earlier orders passed in their favour conferring the higher payscale of Rs.50008000, the same shall be adjusted accordingly. Direct service is permitted. The petitions are allowed. Rule made absolute.
(45) Registry to place a copy of this order in each of the connected matters.
Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 32 of 32 HC-NIC Page 32 of 32 Created On Sat Oct 07 07:36:27 IST 2017