Gujarat High Court
Vipulbhai Harjivanbhai Parmar vs State Of Gujarat & 4 on 7 June, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/15701/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15701 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 15721 of 2016
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VIPULBHAI HARJIVANBHAI PARMAR....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR YN OZA, SENIOR ADVOCATE WITH MS KAVITA B GAJJAR,
ADVOCATE for the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 07/06/2017
COMMON ORAL ORDER
Draft amendment is allowed as prayed for, which is to be carried out at the earliest.
1. All these petitions are arising for the same issue and, therefore, they all are taken up as connected matters and this common order is passed for all such petitions where similar issues are raised by all the petitioners. In view of such fact, only one set of arguments is advanced by both the sides.
2. The sum and substance of all the petitions is to the effect that the State Government has committed grave discrimination amongst teachers appointed by it for primary education; between the teachers who have to teach the subjects of Page 1 of 15 HC-NIC Page 1 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER Fine Arts and teachers who have to teach subjects other than subject of Fine Arts. It is undisputed fact that all the petitioners have completed S.S.C. and A.T.D. Examination as well as five years Diploma of Fine Arts and, therefore, for first five years of their service, they were paid fixed salary of only Rs. 4,000/- as per the policy of the State Government. However, after being made regular/permanent, they were put in the pay-scale of Rs. 4,500 - 125 - 7,000/-, which has been revised to Rs. 5,200 - 20,200/- from the year 2007. It is contended that some of the Assistant Teachers of the subject Fine Arts, though they have similar or lesser qualification than present petitioners, their revised pay-scale is Rs. 9,300 - 34,800/- with grade pay of Rs. 4,200/- and, therefore, it amounts to ex-facie discrimination and arbitrariness. The petitioners have referred the table regarding pay-scale at page 20 of the main petition, which categorically shows different pay-scale for different teachers having similar qualification, but with different subjects. At Sr. No. 9 in such table, Fine Arts teachers are getting Rs. 5,000 - 150 - 8,000/- as basic salary, as against teachers like present petitioners at Sr. No. 10, who are getting Rs. 4,500 - 125 - 7,000/- and such scale has been revised to Rs. 9,300 - 34,800/- and Rs. 5,200 - 20,200/- respectively. In view of such fact, all the petitioners have prayed to revise their pay-
Page 2 of 15HC-NIC Page 2 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER scale in the grade of Rs. 9300 - 34,800 with grade-pay of Rs. 4,200/-.
3. Learned senior counsel Mr. Yatin Oza has vehemently argued the matter and submitted that it not only requires admission and then keeping it pending for couple of years, but deserves to be allowed immediately since there is clear discrimination on the part of the respondents in confirming pay to the similarly situated teachers only on the ground that they are teaching different subjects, though there is no such statute or rule confirming that teachers of particular subject would get more salary and teachers of Fine Arts would get less salary. However, considering the roster whereby subject assigned to this Court pursuant to sitting list dated 10.3.2017 read with modification dated 14.3.2017, when matters before this Court are listed for admission only, it would not be appropriate for this Court to decide the matter finally unless it is so agreed by both the sides. Therefore, practically, at this stage, this Court has to deal with admission and interim relief only, when respondents have not come forward to decide such matter finally at such admission stage. The reservation of the respondents is unwarranted, considering the clear discrimination on the part of the respondents. However, so far as interim relief is concerned, if facts and material available on record is clearly in favour of the petitioners, then, irrespective of Page 3 of 15 HC-NIC Page 3 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER technicalities, it would be appropriate to grant interim relief so as to meet the ends of justice.
4. Considering the facts and circumstances on record, when respondents have selected not to agree for final disposal of these matters, this Court has no option, but to deal with all the issues raised by the petitioners for confirming interim relief even if such interim relief may result into allowing the petitions to some extent. In that case, interim relief may be conditional so as to balance the situation, but the discussion hereinafter would make it clear that there is a clear case in favour of the petitioners and, therefore, there is no reason to refuse the interim relief; if not as prayed for, then, with some conditions so as to balance the situation between the litigants and to ensure that respondents may not take disadvantage of lacuna in judicial proceedings, whereby as the matters may remain pending for couple of years after its admission and, thereby, in absence of interim relief, practically, petitioners would not get justice at this stage and if at all petitions are allowed after a decade or so, then, many of the petitioners may have retired and if they get the arrears of difference of salary without interest at the fag end of their service, then, though such amount may be helpful to them in their old age, they have to undergo tremendous financial difficulties during the pendency of such petitions for no fault on their part.
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5. Learned senior counsel Mr. Oza has submitted that :-
(a). All teachers of all subjects are selected as per law and when there is no difference in selection process or eligibility criteria, whereby basic qualification of given subject is required for appointment as such, there cannot be discrimination with regard to their salary;
(b). Unfortunately, in some schools, there is difference of pay-scale for different subjects;
(c). It cannot be said that Fine Arts is a different subject than other subjects, thereby, even Fine Arts is an equal subject for the students to learn and, therefore, teachers have to perform same duty and same labour to teach Fine Arts in school;
(d). None of the subject can be considered either a superior or inferior to each other and, thereby, all the subjects to be learned by the students and those to be taught by the teachers stand at equal footing and, therefore, it cannot be said that teachers of Fine Arts have to do less labour or his/her duties are different from that of teachers of other subjects so as to fix less salary of such teachers than the teachers of Page 5 of 15 HC-NIC Page 5 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER other subjects;
(e). The qualification of the Fine Arts teachers is prescribed by the statute and statute nowhere differentiates the designation and difference in salary i.e. 'X' salary for teachers of other subjects and 'Y' salary for teachers of Fine Arts;
(f). Though less salary is being paid to the present petitioners, in advertisement for new recruitment of teachers, now, when 367 posts of Drawing Teachers are vacant, the salary declared for such post/s is Rs. 9,300 - 34,800/- even with qualification of Diploma in Drawing/ Painting/ Sculpture/ Graphics Art Courses or Diploma in Fine Arts and Craft from Vishwa Bharti Shantiniketan or from Government School of Arts and Craft, Patna or M.A. In Drawing and Painting from Agra University or qualification/degree of B.Ed. with Diploma in Fine Arts.
(g). Therefore, if new teachers with any of the above qualification is eligible to get salary in the scale of Rs. 9,300 - 34,800/-, then, there is no reason to differentiate and discriminate the salary of teachers who are already in service since long and appointed after following due process of law;
(h). It has been pointed out, referring Page 6 of 15 HC-NIC Page 6 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER Annexure-C that at the time of recruitment itself, respondents have acted selectively by not disclosing proper salary for the teachers like the present petitioners. It is stated that it would be as per Government Rules and Regulations, though for five years fixed salary of Rs. 4,000/-
is to be paid and though such fact is disclosed for other teachers in the same advertisement.
(i). It is also submitted that similarly situated teachers serving in Navodaya Vidyalaya Samiti, are getting salary in the scale of Rs.
9,300 - 34,800/- and, therefore, there is clear discrimination in pay-scale of present petitioners due to bureaucratic sabotage;
(j). It is also submitted that P.T. Teachers are given pay-scale of Rs. 9,300 - 34,800/- though they are not teachers any subject like Science, Maths or English. Some orders regarding revision of pay-scale for such P.T. Teachers are produced on record at page Nos. 103 - 116;
(k). The petitioners are relying upon G.R. Dated 27.4.2011, copy of which is produced at page 131, which confirms that though there is different eligibility criteria for teachers of each subject, it is mainly with reference to the subjects, which are to be taught by such teachers, but there is no different provision of Page 7 of 15 HC-NIC Page 7 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER salary for the teachers who have to teach Fine Arts or physical training etc. inasmuch as there is no such discrimination or difference in paragraphs 12 and 14, which is on page 141.
(l). It is submitted that all the teachers are equally situated and, therefore, there cannot be discrimination in their salary and, thereby, qualification of teachers based upon the subject they have to teach, is unconstitutional;
(m). Petitioners are also relying upon the office memorandum dated 13.7.2012 by Kendriya Vidyalaya Sangathan, wherein though there is list of posts, including post-graduate teachers, trained graduate teachers, primary teachers, head master, primary teachers (music), trained graduate teachers (P & H.E.), Librarian, trained graduate teachers (W.E.), same scale of Rs. 9,300
- 34,800/- is prescribed.
(n). In support of his submissions, learned senior counsel Mr. Oza is relying upon decisions in the case of :-
(i). (2017)1 SCC 148 between State of Punjab and others V/s Jagjit Singh;
(ii). (1986)1 SCC 637 between K. Sulaiman vs State Of U.P.;
(iii). (2016)1 SCC 1 between Sanjiv Rajendra
Bhatt v. Union of India;
(iv). (2009) 13 SCC 635 between State of Madhya
Pradesh and others v. Ramesh Chandra Page 8 of 15 HC-NIC Page 8 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER Bajpai;
6. As against that, respondents have opposed the petitions and granting of interim relief by filing detailed affidavit in reply, contending that though equal pay for equal work is a well- known doctrine, it cannot be applied to all cases and more particularly, when petitioners have approache this Court very belatedly. For the purpose, they are relying upon the decision in the case of State of Maharashtra Vs. Digambar reported in AIR 1995 SC 1991.
7. Respondents are also relying upon the decision in the case of State of Punjab & Ors vs Rafiq Masih (White Washer) submitting that from different parameters for considering that whether doctrine for equal pay for equal work can be applied in given case or not. It is also submitted that the petitioners case is quite vague and does not clearly set out similarity between two class of teachers so as to equate them and, therefore, the onus of proof of partity lies on the person, who claims it. For such submission, respondents are relying upon several decisions in support of their submission that the work performed by both as Art Teachers is finally equal and same in quality and sensitivity of work performed by other teachers.
8. Respondents are also relying upon following decisions:-
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(a). Decision of Allahabad High Court in C.M.W.P. No. 5327 of 1982 between Radhe Shyam Bhatta and Ors. Vs. State of U.P. & Ors.
(b). All India Customs and Central Excise Stenographers Vs. Union of India reported as (1988)3 SCC 91;
(c). Mevaram Kanojiya Vs. AIIMS reported at (1989)2 SCC 235;
(d). Grih Kalyan Kendra Workers Union Vs. Union of India reported as (1991) 1 SCC 619;
(e). C.S. Patel & Ors. Vs. State of Gujarat & Ors.
reported in 1992(2) GLH 116;
(f). K. S. Mahalingegowda Vs. Secy. To Government, Department of Vocational Education, Karnataka reported in 1995 (Suppl.2) SCC 95
(g). Orissa University of Agriculture Vs. Manoj K. Mohanti reported as (2003)5 SCC 188;
(h). S.C. Chandra Vs. State of Jharkhand reported as (2007)8 SCC 279;
(i). Smt. Mamta Baral Vs. State of Orissa reported in 2008 (Supp.) Orissa LR 473;
(j). Decision in Writ Petition Nos.8666 and 8670 of 2005 between R. Saravanakumar and V. K. Sattanathan;
(k). U.T. Chandigarh Administration Vs. Manju Mathur reported as (2011)2 SCC 452;
(l). SAIL Vs. Dibeyendu Bhattacharya reported as (2011)11 SCC 122;
(m). Decision in LPA No. 270 of 2012 & Ors. of Punjab & Haryana High Court in The State of Punjab & Ors. Vs. Balbir Singh & Ors.
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(n). National Alluminium Vs. Ananta Kishor Rout reported as (2014)6 SCC 756;
(o). State of Punjab Vs. Jagjit Singh reported as (2015)1 SCC 145;
(p). Decision in Civil Writ Petition No. 5629 of 2015 in the case of Charanjit Singh and Ors. Vs. State of Punjab & Ors.
9. It is further submitted that the principle of equal pay for equal work is applicable only when it is shown that the incumbents of the subject posts and the reference posts discharge similar duties and responsibilities, relying upon:-
(i). State of West Bengal Vs. West Bengal Minimum Wages Inspectors Association (2010)5 SCC 225; and
(ii).State of Punjab Vs. Jagjit Singh reported as (2015)1 SCC 145.
10. It is further submitted that present petitioners are holding the degree of Diploma only whereas other teachers are graduates in respective disciplines in which they have to impart education, therefore, it cannot be said that they are equal, so also duties, responsibilities and quantum of work of Art Teachers is different from other teachers. To substantiate such argument, respondents are relying upon Annexures - R-1 and R-2 with affidavit in reply where an attempt was made to show that Art Teachers have to take only three periods/classes in a week as against 4 - 7 Page 11 of 15 HC-NIC Page 11 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER period/classes for different subjects of language, science and maths. It is further submitted that thereby the pay of the teachers is largely based upon the qualification of the teachers and their workload. Respondents are also relying upon Randhir Singh Vs. Union of India & Ors. reported in (1982)1 SCC 618.
11. Respondents have tried to explained in their affidavit-in-reply by reproducing several paragraphs of previous cases emphasising that their can be different salary for similar posts.
12. However, the record shows that the petitioners have applied under the Right to Information Act seeking several information, but at the relevant time, respondents have failed to disclose certain facts though called upon by the petitioners. Therefore, by order dated 24.4.2017, respondents were called upon to disclose certain information as discussed in such order. Though respondents have filed affidavit-in-reply, it is quite clear and obvious that it does not disclose the information called upon by such order dated 24.4.2017. Therefore, adverse inference needs to be drawn against the respondents. By such order dated 24.4.2017, specific instances were given that how particular salary is being paid to similarly situated teachers even by disclosing names of atleast some of them, one of whose name is Ashaben Kantilal Patel. Such order is also clarifying the issue regarding onus to prove and Page 12 of 15 HC-NIC Page 12 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER making it clear that if affidavit in not filed as prayed for, then, there will be an adverse inference that respondents have no detail to put forward and thereby, petitions may be allowed as prayed for. However, when respondents have filed reply, but not disclosed requisite information, at this stage, atleast adverse inference can be drawn against them.
13. So far as merits of the case is concerned, as already recorded herein above, since main petitions are to be decided on its own merits, at this stage, the discussion on factual details and merits of the case may prejudice the other side and, therefore, when there is prima facie case in favour of the petitioners so also balance of convenience tilts in favour of the petitioners, and when matters require consideration on merits, there is no reason to refuse the interim relief, if not as prayed for, then, with some modification and with some conditions so as to balance the situation because in absence of interim relief, there would be irreparable loss to the petitioners.
14. It cannot be ignored that though the eligibility criteria discloses the Degree of Diploma only, such requirement of diploma course is five years duration and, therefore, the total learning by the candidate would be practically more than graduation course, which is generally 3 to 4 years only. Moreover, it cannot be ignored Page 13 of 15 HC-NIC Page 13 of 15 Created On Thu Jun 08 01:55:24 IST 2017 C/SCA/15701/2016 ORDER that generally diploma course is more suitable for technical subjects like Fine Arts etc. where something is to be learnt by actual training and not merely on reading and understanding subjects only. Therefore, it cannot be said that a degree of five years diploma course is in any manner lower than the degree of graduation.
15. In view of the above facts and circumstances, let there be rule for final determination, returnable on 27.07.2017. Learned AGP waives service of notice of rule for respondents. Let there be interim relief whereby operation, execution and implementation of the notification dated 16.4.2009 at Annexure-A is hereby stayed with a direction to the respondents to extend the benefit of pay as paid to other similarly situated teachers like Ashaben Kantilal Patel. Thereby, practically, respondents have to pay the salary to the petitioners in the scale of Rs. 9,300 - 34,800/- pending these petitions, but subject to outcome and result of the main petitions and, therefore, on condition that in getting such scale, all petitioners have to file an undertaking that if at all they do not succeed in the petitions, then, respondents would be entitled to recover the amount of dues paid pursuant to such interim relief in suitable installments.
16. Parties shall complete the pleading before the returnable date.
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