Gujarat High Court
Gohel vs State on 29 July, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/4225/2011 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4225 of 2011
=========================================================
GOHEL
HIRENKUMAR JAYANTILAL & 4 - Petitioner(s)
Versus
STATE
OF GUJARAT - THROUGH SECRETARY & 5 - Respondent(s)
=========================================================
Appearance
:
MRNACHIKETDMEHTA
for
Petitioner(s) : 1 - 5.
MR MAULIK NANAVATI, AGP for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) : 2 - 4, 6,
NOTICE SERVED BY
DS for Respondent(s) : 2 - 3,
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/07/2011
ORAL
ORDER
1. Heard learned advocate Ms. Vidhi Bhatt for learned advocate Mr. Shalin Mehta appearing on behalf of petitioners, learned AGP Mr. Maulik Nanavati appearing for respondent nos.1 to 3. Rest of respondents are served but no appearance is filed on behalf of them.
2. In this matter, in all five petitioners are there. For facts and circumstances of present case, synopsis and list of events are relevant. Therefore, same is quoted as under:
"The illegal action taken by the Director of Social Defence, Gujarat State, respondent no.3 on 23.12.2010 defies description. This is how it happens.
The petitioners herein are assistant teachers in schools for the disabled children run 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. They are appointed under government resolution dated 16.2.2006 issued by the Finance Department and government resolution dated 28.03.2006 issued by the Social Justice ad Empowerment Department. At the time of appointment, the petitioners were getting fixed pay of Rs.3,500/- per month. This was revised to Rs.5,000/- per month. So far, so good.
On 05.10.2010, Special Civil Application o.13704/10 was filed in this Court by some 46 persons who are employed also in schools for the disabled children as attendants (peons), sweepers, clerk-cum-typists, assistant teachers, craft teachers and hostel rectors (gruhpati/gruhmata). The principal grievance of the protagonists of Special Civil Application No.13704/10 was that they were paid less then the petitioners though appointed earlier and that their service was not treated to be regular after 5 years from the date of appointment. This Court found merit in their grievance and observed in its order dated 14.10.2010 that "the Court is prima facie of the opinion that there cannot be more grave example of indifference and sheer non-application of mind on the part of the authorities.". Further, the Court issued "Rule" returnable on 23.11.2010 and by way of ad interim relief, it directed the authorities to pay to the petitioners as per the government resolutions dated 16.02.2006 and 29.04.2010 from the month of October 2010. In other words, this Court accorded parity with petitioners by interim order.
This oral order dated 14.10.2010 passed in Special Civil Application No.13704/10 was facile and easy to implement. What did State Government do? Instead of increasing the fixed pay of the petitioners of Special Civil Application No.13704/10, respondent no.3 passed an order on 23.12.2010 reducing the pay of the petitioners from Rs.5,000/- per month to Rs.2,800/- per month. This means that respondent no.3 accorded parity to the petitioners with the petitioners of Special Civil Application No.13704/10 which was never asked for. This whimsical and capricious order dated 23.12.2010 was passed by respondent no.3 without prior show cause notice and hearing to the petitioners.
Hence, the present petition.
The petitioners are employed as assistant teachers in the schools for disabled children on a fixed monthly pay of Rs.3,500/-.
Respondents no.4 to 6 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, 1955. The said institutions are duly registered and recognized by the State Government under Section 51 of the Act and they are provided with 100% grant-in-aid towards the salaries of their employees.
15.09.2000
- As a part of discharging the said statutory obligation to provide for rehabilitation of the disabled persons and to take affirmative action for the purpose, the State Government decided to recognize with grant-in-aid 20 institutions working in the filed of rehabilitation of disabled persons by issuance of government resolution. Managements of the said institutions thereafter invited applications from the District Employment Exchange as well as by issuing advertisements in the newspapers for recruitment on the posts of attendants (peons), sweepers, clerk-cum-typists, teachers and hostel vectors. Several candidates applied in response to the said advertisements. The dates of interview were fixed by the respondent authorities. The selection process was undertaken by the selection committee comprising of the District Social Defence Officer of the concerned district and other representatives. All those who got selected were issued appointment orders initially for a period of one year and on a fixed monthly pay o Rs.2,000/-, Rs.2,200/-, Rs.2,800/- and Rs.4,200/- in respect of attendants (peons) and sweepers, clerk-cum-typists, teachers and rectors respectively.
28.03.2006
- To respond to the increase in the number of disabled children in the State, the Social Justice and Empowerment Department, respondent no.1, issued government resolution to provide coverage to 1000 additional disabled children. Coverage of additional children would require additional staff. Therefore, 78 new posts were sanctioned under this government resolution to be filled in as per government resolution dated 16.02.2006 issued by the Finance Department, respondent no.2. Out of these 78 newly sanctioned posts, 44 posts were allocated for assistant teachers and 11 posts for craft teachers.
13.06.2006
- Thereafter, by an order, 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. This approval order stipulates that an assistant teacher was 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 teachers and craft teachers.
Thereafter, public advertisements were issued by respondents no.4 to 6 for recruitment of assistant teachers and craft teachers. The petitioners applied in response to the said public advertisement. They were called for interview. On selection, they were issued appointment orders by respondent no.3. Though the petitioners were appointed initially for a period of one year, their appointments were extended periodically by separate contracts.
12.02.2009
- In year 2009 came the 6th Pay Commission and the State Government vide a government resolution, adopted the recommendations of the 6th Pay Commission.
May 2010 - The petitioners got a small benefit of this. In that their fixed monthly pay was increased from Rs.3,500/- to Rs.5,000/-.
05.10.2010
- The appointees under government resolution dated 15.09.2000 filed Special Civil Application No.13704/10 in this Court seeking parity with the petitioners. The petitioners o Special Civil Applications 13704/10 were appointed before the petitioners under government resolution dated 15.09.2000. The assistant teachers and craft teachers of government resolution dated 15.09.2000 were drawing a fixed monthly pay of Rs.2,800/-. Their main grievance was that though senior to petitioners, they were paid less than the petitioners who from 01.05.2000 were drawing fixed monthly pay of Rs.5,000/-.
14.10.2010
- The following order was passed by this Court in Special Civil Application No.13704/10 -
"The petitioners are the employees who were appointed pursuant to the Government Resolution dated 15.9.2000 (a copy of which is produced at Annexure-A collectively at p.30) and they are denied the benefits of Government Resolution dated 16.2.2006 only on the ground that, ' as you were appointed pursuant to a particular Government Resolution', for all time to come you will get only that fixed pay on which you were appointed and benefits flowing from any subsequent Government Resolution will not be available to you. The matter requires consideration. (emphasis supplied).
RULE returnable on 23rd November 2010. Notice as to interim relief returnable on 25th October 2010. By way of ad-interim relief it is directed that the respondents authorities shall pay to the petitioners as per the Government Resolutions dated 16.2.2006 and dated 29.4.2010 from the month of October, 2010 payable in November, 2010.
Direct service is permitted. A copy of this order be made available to the learned AGP Ms.Manisha Narsinghani for its onward communication for compliance."
After the said order of 14.10.2010, the State Government has chosen to challenge it. However, the appeal is not yet modified and the oral order dated 14.10.2010 is not yet stayed.
04.12.2010
- Without understanding the import of the oral order dated 14.10.2010 passed by this Court in Special Civil Application No.13704/10, a written communication was addressed by the Section Officer of the Social Justice and Empowerment Department to respondent no.3 recommending that the staff appointed under government resolution dated 16.02.2006 (which includes the petitioners) be brought over to the old scheme of government resolution dated 15.09.2000.
23.12.2010
- Acting on this, respondent no.3 issued an order titled "revised order" stipulating that the petitioners' appointments would now be governed by government resolution dated 15.09.2000 instead of government resolution dated 16.02.2006 under which they were appointed. This was done with a view to reduce the petitioners fixed pay from Rs.5,000/- per month to Rs.2,800/- per month. Horrendously, this revised order was issued to the petitioners without prior show cause notice and hearing.
04.03.2011
- The petitioner no.1 addressed a representation to respondent no.1 against the revised order dated 23.12.2010 issued by respondent no.3. The representation is not attended to by respondent no.1. The revised order dated 23.12.2010 issued by respondent no.3 is to be made effective from 01.04.2011. This means that the petitioners' pay would be reduced from Rs.5,000/- to Rs.2,800/- from 01.04.2011.
Hence, the present petition."
3. In view of above facts which has been given by this Court on basis of synopsis and list of dates and events, it is necessary to consider prayer made by petitioner in para-21(A) to (G). therefore, same are quoted as under:
"A. Your Lordships may be pleased to issue a writ of certiorari to quash and set aside the revised order dated 23.12.2010 (Annexure-J) issued by respondent no.3.
B. Your Lordships may be pleased to issue a writ of declaration to declare that the petitioners' appointments are to be governed by government resolution dated 16.02.2006 and not government resolution dated 15.09.2000.
C. Your Lordships may be pleased to issue a writ of declaration to declare tat the State Government's action of changing the service conditions of the petitioners adversely without prior show cause notice and hearing and reducing their faxed monthly pay from Rs.5,000/- to Rs.2,800/- is violative of Articles 14, 16, 21 and 23 of the Constitution of India.
D. Your Lordships may be pleased to issue a cease and desist order to permanently restrain the respondents from applying government resolution dated 15.09.2000 to the petitioners.
E. Your Lordships may be pleased to issue a writ of mandamus commanding respondents to treat the petitioners as having been appointed under government resolution dated 16.02.2006 and to continue to apply the said resolution to the petitioners.
F. Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of the revised order dated 23.12.2010 issued by respondent no.3 and to restrain the respondents from applying government resolution dated 15.09.2000 to the petitioners.
G. Any other and further orders being fit and proper in the interest of justice."
4. In view of prayer and facts which has been referred as above by this Court, this petition being a cross petition arising from earlier petition where short salary service conditions are required to be protected by this Court though claim has been made by earlier group of petitioners on the basis of subsequent circular. Present group of petitioners are getting benefit of salary and other service benefits on the basis of subsequent circular which has been demanded by earlier group of petitioners representing by learned advocate Mr.Pujara. Result subsequently given to that, State of Gujarat has reduced salary of present group of petitioners. Therefore, present petition is filed just to protect their service condition and salary. So it is interconnected matter arising from earlier group of petitions.
5. Recently Division Bench of this Court has passed following order on 27/7/2011 in Writ Petition (PIL) No.49 of 2011 which is quoted as under:
"Question that arises in this case is whether State Government is exploiting unemployed persons by paying wages lesser than prescribed scales for same and equivalent posts on which persons are performing similar duties, responsibilities, accountabilities with same qualifications, including those who have been appointed after following legal procedure, and thereby paying less than the minimum wages. Other question is whether paying meagre wages to the police personnel and teachers will boost the corruption in the State.
As the questions are of greater importance, we do not treat this petition as Public Interest Litigation in regard to any service matter, but will decide the questions as raised above.
ADMIT.
Respondents have appeared and filed reply affidavit. Petitioner may file rejoinder and may complete pleadings.
Post the matter for hearing on 9th August, 2011 at 2.30 p.m. on the top of the list as first case."
6. In view of above order passed by this court, this petition being interconnected matter, let registry may also place this matter before the Hon'ble the Chief Justice for necessary orders.
7. Ad interim relief granted earlier in this petition is extended till next date of hearing.
(H.K.RATHOD, J.) (ila) Top