Gujarat High Court
Ambabhai Dudhabhai Chavda & 22 vs State Of Gujarat & on 15 July, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12021/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12021 of 2001
With
SPECIAL CIVIL APPLICATION NO. 9349 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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AMBABHAI DUDHABHAI CHAVDA & 22....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR AS ASTHAVADI, ADVOCATE for the Petitioner(s) No. 1 - 23
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/07/2016
COMMON ORAL JUDGMENT
1. Since the issues raised, in both the captioned writ Page 1 of 13 HC-NIC Page 1 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT applications, are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the Special Civil Application No.12021 of 2001 is treated as the lead matter.
3. By this writ application under Article 226 of the Constitution of India, the petitioners, retired employees of the State Government have prayed for the following reliefs;
"18(A)To quash and set aside the order dated 6.10.2001.
18(B) To fix the second higher pay scale of the petitioners of Rs.20003500 and third higher pay scale of Rs.22004000 18(C) To declare that petitioners are entitled to get equivalent higher pay scale as are given to the Education Inspector who are recruited directly.
18(D) To grant consequential relief and pay fixation and also fixing the pensionary benefits of the petitioners accordingly, as if the petitioners are given the 2nd higher pay scale of Rs.20003500 from the date on which the direct recruits of Education Inspectors are given the first higher pay scale of Rs.20003500.
18(E) To declare that the respondent Government has misinterpreted the GR dated 14.8.1998 while denying the 2nd and 3rd higher pay scale to the petitioners.
18(F) Any other relief deemed fit, just and proper in the facts and circumstances of this case."
4. The facts of this case may be summarized as under:
5. The petitioners are retired primary teachers. The grievance Page 2 of 13 HC-NIC Page 2 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT voiced in the writ application is that they have been wrongly denied the 2nd and 3rd higher pay scale given to the Education Inspector. It appears that in the first round of litigation i.e. SCA No.1319 of 2000 with SCA No.3402 to 3421 of 2000, the following order was passed by learned Single Judge dated 8.12.2000.
"Heard learned advocate Mr. Raval for the petitioners and Ms. Manisha Lavkumar, learned AGP for the respondent authorities in this group of petitions.
It is the case of the petitioners that they were primary school teachers in the municipal school board and district school boards and they have retired. Some of them have retired prior to 16.8.1994 and some of them have retired in the year 1995 and 1996 respectively. It is the grievance of the petitioners that they were retired as primary teachers and are entitled to the higher grade to the post of Education Inspector which has been denied to them and this has adversely affected their right to get pension and, therefore, considering the submissions of the learned advocates for the parties and also after considering the representation made by the petitioners which is at page 125, annexure "K", and also after considering the reply dated 16th March, 1999 from the Examiner, Local Funds Accounts, Ahmedabad which is at page 133, Annexure "L", it is not clear as to whether the petitioners are entitled to the higher grade in the post of Education Inspector or not. No doubt, learned AGP Ms. Manisha Lavkumar has submitted that in between the post of primary teacher and the Education Inspector, there is one post of Assistant Education Inspector but even that past is also not clear in the reply dated 16th March, 1999 of the Examiner, Local Funds, Accounts Ahmedabad (page 133 annexure "L"). In view of these complications of the factual aspects between the parties, as per my view, it would be better and also in the interest of justice to direct the petitioners to approach the Director of Primary Education by some suitable representation as all the petitioners are retired employees and receiving pension and it is directly affecting their right of pension and, therefore, considering all these facts and circumstances of the case, it is directed to the petitioners to make detailed representation to the Director of Primary Education, respondent No. 2 herein within fifteen days from today in the subject matter of this Page 3 of 13 HC-NIC Page 3 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT petition. As and when such representation is received by the Director of Primary Education from the petitioners, it is directed to the Director of Primary Education to consider and examine the grievance of the petitioners in accordance with law after affording opportunity of personal hearing to the two representatives of the petitioners and to pass appropriate orders while keeping in mind the fact that the petitioners who were working as trained primary teachers are not receiving higher grade on the post of education inspector and to decide as to whether they are entitled to the second higher grade as per their grievances or not and to pass speaking order after giving opportunity of personal hearing to the two representatives of the petitioner in accordance with the rules, regulations and circulars of the State Government, within two months from the date of receipt of representation from the petitioners. Subject to the aforesaid observations, all these petitions shall stand disposed of, with a liberty to the petitioners to challenge the orders that may be passed by respondent NO. 2 after considering their representation before appropriate forum in accordance with law if such orders are adverse to the petitioners. Notice in each of these petitions shall stand discharged with no order as to costs."
6. Pursuant to the order passed by this Court as referred to above, the petitioners preferred a detailed representation. By the impugned order dated 6.10.2001 passed by the Director of Primary Education, it was decided that for a primary teacher, the next promotion is to the post of Education Inspector and the 1st higher pay scale given to the Education Inspector would be the same but so far as 2nd and 3rd higher pay scale is concerned, they are not entitled to receive on par with the Education Inspector.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Page 4 of 13 HC-NIC Page 4 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT petitioners are entitled to the relief prayed in this writ application.
8. I have to my advantage, a decision rendered by a learned Single Judge of this Court putting at rest, the issue which has been raised before me.
9. In the case of Kandoi Chimanlal Brijlal and others v. State of Gujarat vide judgment dated 30.1.2013 passed in SCA No.10142 of 2009 and allied matters, His Lordship considered the very same argument which has been canvassed before me in this Writ Application and took the view as under: "6. In above situation, learned Assistant Government Pleader Mr. Rindani submitted that it is not in dispute that all the petitioners are entitled to three higher grade scales pursuant to Government Resolution dated 5.7.1991. It is submitted that the employees, on completion of 9, 18 and 27 years of service, were entitled to first, second and third higher pay scale respectively. It is however contended that, he has instructions to contend that, since the petitioners had received selection grade, prior to coming into force of the present higher grade scale scheme dated 05.07.1991, the said selection grade has to be treated as one promotion or at least the first higher grade scale and therefore, now the petitioners would be entitled to only remaining two higher grade scales. It is submitted that, the normal pay scale of the cadre of teacher to which the petitioners originally belonged at the relevant time was Rs.12002040 (effective from 1.1.1986) and corresponding next higher grade scale was Rs. 14002600, next higher to it was Rs. 16402900, next to it was Rs. 20003500 and next to it was Rs. 22004000. Therefore, it is contended that the maximum pay scale which could have been conferred to a teacher could be of Rs. 2000 3500 and could not be Rs. 22004000 which is claimed by the petitioners.
7. The above contention of learned AGP needs to be appreciated in Page 5 of 13 HC-NIC Page 5 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT the back ground of various orders of this Court, reference to which is made hereafter and the fact that as on 1.1.1986, though the pay scale of the cadre of Primary Teacher, to which the petitioners belonged, was Rs. 12002040, as a matter of fact, all were drawing the pay in the pay scale of Rs. 14002600 since that was the corresponding revised pay scale of the selection grade which the petitioners had got prior to 31.12.1985. Thus, in effect, it is to be seen as to whether, the grant of selection grade should be treated as availing the first higher grade scale or, over and above it, the petitioners are entitled to three higher grade scales. If the grant of selection grade was to be treated as availing the first higher grade scale, the petitioners were entitled to only remaining two next higher grade scales which would take them to the maximum of the pay scale of Rs. 20003500. If on the other hand, the grant of selection grade was not to be treated as conferring the first of the three higher grade scales, the petitioners would be entitled to three more higher grade scales which would take them to the pay scale of Rs. 22004000. Thus, the only point to be answered is, as to whether the grant of selection grade to the primary teachers should be treated as availing first higher grade scale.
8. At the out set, it needs to be recorded that, above point is already gone into and concluded by this Court. There are more than one orders of this Court in this regard, which are on record, however, for the sake of convenience and brevity, the details of only relevant judgments and orders are recorded in this judgment, which are as under :
8.1 This Court in Special Civil Application No. 8871/1999 and cognate matters, after taking into consideration various orders passed by this Court, recorded judgment dated 19.12.2001 and gave directions to the respondents to give benefit of three higher grade scales to the petitioners therein and consequential benefit with 12% interest. The present petitioners are similarly situated to the petitioners of Special Civil Application No. 8871/1999 and cognate matters. 8.2 The above judgment dated 19.12.2001 was sought to be reviewed by the authorities of the Government, and for that purpose, number of applications being Misc. Civil Application No. 2147 of 2003 and cognate applications were filed, inter alia, taking contention to the effect that, in view of the clarification issued by the Government on 16.10.1993, the selection grade granted to a teacher, should be treated as if the first higher grade scale is already availed by him, and therefore, only remaining two higher grade scales will be granted to the teachers. While rejecting that contention and consequently the said review applications, this Court, on 24.11.2003 held that Government did not have any Page 6 of 13 HC-NIC Page 6 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT authority to issue such clarificatory instruction as contained in resolution dated 16.10.1993.
8.3 The above judgment of learned Single Judge dated 19.12.2001 and order dated 24.11.2003 i.e. the original judgment in the petitions, as well as the order rejecting the review applications of the Government, both were challenged by the authorities of the Government, by way of Letters Patent Appeal No. 1073 of 2004 and cognate matters, wherein, the Division Bench of this Court vide judgment dated 14.10.2004 held that, Government did have powers to issue clarification as was done on 16.10.1993, however, true interpretation of the Government circulars pertaining to selection grade prevailing at the relevant time, read with Government Resolution dated 5.7.1991 adopting the higher grade scale scheme, read with the clarification dated 16.10.1993, would still entitle the primary teachers to avail three higher grade scales, over and above the selection grade which they would have availed at the relevant time.
8.4 The said decision of the Division Bench of this Court was challenged by the authorities of the Government before Hon'ble the Supreme Court of India by filing SLPs, being Special Leave to Appeal (Civil) No. 18489/2005 and cognate matters and the same came to be dismissed on 16.9.2005. Reference to this fact is also made by the Government in its letter dated 25.1.2008 which is referred hereinafter.
8.5 Thus, whether a teacher who had availed selection grade as per policy of the Government in Education Department, was still entitled to get three higher grade scales flowing from the Government Resolution issued by the Finance Department on 5.7.1991, is an issue which has attained finality, as recorded above.
9. In above factual back ground, the only contention raised by the State authorities through learned AGP Mr. Rindani without filing any affidavitinreply, that grant of selection grade should be treated to have been conferred one of the three higher grade scales, can not be accepted. In fact, this contention of learned AGP is rejected by this Court time and again, even after the dismissal of SLP referred above. Reference in this regard may be made to the following further litigation.
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9.1 Taking note of above judgments, this Court while adjudicating the grievance voiced by Gujarat State Pensioners' Federation, in Special Civil Application No. 8828/1995 and cognate matter, recorded a detailed judgment and gave directions on 4.8.2006. Relevant paragraphs of the said judgment read as under:
7. Having heard the learned advocates appearing for the parties, the issues arising in these petitions need not detain this Court long. A Division Bench of this Court has already come to a definite conclusion in this regard. It is made clear that though the Government had the power to issue amending/clarificatory circular dated 16.10.93, with respect to those teachers who had already got selection grade, prior to the amending circular dated 26.12.85, the employees are entitled to retain the selection grade benefit as well as seek higher payscale pursuant to the resolution dated 5.7.91. To that extent, the petitioners' claim must succeed. However, if there are any teachers who had got selection grade after GR dated 26.12.85, such teacher cannot retain both the benefits i.e. of selection grade as well of higher pay scale. This has been made amply clear by the Division Bench.
8. For want of individual details of each employee, though this Court does not give specific individual directions, in the interest of justice, the respondents are directed to consider the case of each individual concerned employee herein and apply the ratio laid down by the Division Bench of this Court as noted hereinabove. The respondents shall examine each individual case as provided hereinabove and the conclusion reached therein shall be communicated to the concerned teachers or their heirs. This exercise shall be done expeditiously and in any case not later than three months from the date of receipt of a copy of this order.
9. If any of the teachers are held entitled to release of the amounts withheld from the pensionary benefits, the same shall be paid within the said period with simple interest at the rate of 10 per cent from the date such amount fell due and payable till its actual payment. Ultimate conclusion of the Government, if aggrieves any individual teacher, it will be open for him to seek redressal of the grievance in accordance with law.
10. With the above directions, the petitions are disposed of.
Rule is made absolute to the above extent with no order as to costs.
9.2 Inspite of above directions, primary teachers were made to approach this Court time and again. Few of such Page 8 of 13 HC-NIC Page 8 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT litigations were Special Civil Application No. 950/2007 and cognate matters decided on 11.1.2007, and Special Civil Application No. 23579 of 2007 and cognate matters decided on 13.9.2007. In those matters, this Court by referring to the above referred judgment dated 4.8.2006, again gave directions to the authorities.
9.3 Even thereafter, the authorities did not grant benefits to those petitioners, leave aside similarly situated teachers whose cases were directed to be examined by this Court in judgment dated 4.8.2006. Under these circumstances, petitioners of Special Civil Application No. 950/2007 and cognate matters moved this Court under the Contempt of Courts Act by filing Miscellaneous Civil Application No.1955/2007 and cognate applications. Authorities of the Government, including the Director of Primary Education, appeared before this Court, where, the stand of the authorities of the Government and consequential directions issued by this Court, as reflected in the order dated 17.9.2007, reads as under:
Stand of the Authorities of the Government: Mr Sunit Shah, learned Government Pleader states, under instructions of Mr. R.C.Raval Director of Primary Education and Mr. Sutaria Officer on Special Duty, Education Department, that the respondent authorities have taken the decision in principle to accept the petitioners' representation, but in view of the fact that implementation of such decision will be required to be done in case of as many as 9000 to 10,000 teachers and this will involve examination of old service records of such a large number of individuals and the computation of the amounts will also require interpretation of certain rules, the entire process will take about five months' time for the purposes of actual implementation and payment.
Directions issued by this Court : It is, therefore, clear that the respondents will make the payments pursuant to the decision on the petitioners' representation in all such cases by 31st January 2008 as per the statement made by Mr Sunit Shah, learned Government Pleader.
We accordingly dispose of these applications with a direction to the respondents to carry out the statements made above within the timelimit indicated hereinabove.
Subject to the above direction, notice is discharged.
10. Thereafter, authorities of the Government in Education Department, issued written instructions to the Director of Primary Education on 25.1.2008 and 29.1.2008 to do Page 9 of 13 HC-NIC Page 9 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT needful. These written instructions were, on the basis of and after referring to all the above referred judgments and orders of this Court, including the judgment dated 4.8.2006 as well as the contempt proceedings dropped by this Court on 17.9.2007 in view of the statement made by competent and responsible officer, through responsible Law Officer.
11. Inspite of above facts, even today, those retired primary teachers, including those who were petitioners before this Court, have stood there only. Some of them have died also. To give one example, it is noted that one Mr. Amrutlal Dave was one of the petitioners in Special Civil Application No. 9959 of 2007, in whose favour the order dated 13.4.2007 was recorded by this Court and thereafter, the statement was made before contempt Bench of this Court on 17.9.2007 to make payment before 31.1.2008, died and his widow Kundanben is petitioner in Special Civil Application No. 5581 of 2009, which is being considered in this group of petitions. Be it noted that the said petitioner was from Bhavnagar district and there was specific written instruction of the Government dated 29.1.2008, which is referred above and even then it is the widow who is petitioner before this Court. Even her husband ought not to have been here.
12. Reverting back to the grievance of the petitioners, viza viz the contest put forward by the Directorate of Primary Education, I find that this court at this stage, has nothing to adjudicate as to whether the petitioners are right in their claim or not. More than once, the stand of the authorities which is taken now, is rejected by this Court. It has attained finality right up to the Apex Court. Under these circumstances, to say that the stand of the authorities of the Government is rejected would mean that, it was at least open to them to do so at this stage. In my view, respondents are not justified even to that extent. It is to be noted that the stand which is taken now could not have been written on oath by any officer by filing reply, since that would be in straight conflict with the judicial pronouncement of this Court. Therefore, inspite of the direction of this Court, the authorities have chosen not to file reply. But at the same time, have asked learned AGP to reiterate the said stand. This is required to be viewed seriously and keeping this aspect in mind, in the final directions which are issued by this Court in this judgment, cost is also being imposed against the authorities. While awarding cost, this Court has also kept in mind the principles annunciated by Hon'ble the Supreme Court of India in this regard in the judgment in the case of Salem Advocate Bar Association versus Union of Page 10 of 13 HC-NIC Page 10 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT India reported in (2005) 6 SCC 344, more particularly, para 37 and 39 thereof.
13. Before parting it also needs to be observed that, in the judgment recorded by this Court dated 4.8.2006 in Special Civil Application No. 8828/1995 and Special Civil Application No. 8829 of 1995, which were filed by the Pensioners' Association, it was directed that the case of each individual employee shall be looked into by the authorities and appropriate decision shall be taken and communicated to the concerned teachers or their heirs. The same is not done. Even in the contempt proceedings referred above, time was prayed for by the State authorities mainly on the ground that there are about 9000 to 10000 such cases and therefore some time is required, which was stipulated to be 31.1.2008 and inspite of that, not only nothing, in consonance with the above orders, is done by the authorities, on the contrary, fresh round of avoidable litigation is thrust upon senior citizens and the same is sought to be contested without filing affidavitinreply, inspite of directions of this Court. Therefore, it is directed that, no similarly situated employees should be made to approach this Court and Principal Secretary, Education Department shall do needful in that regard.
14. Learned advocates for the District Primary Education Officers have taken the stand to contest these petitions. Learned advocates for the petitioners have raised serious grievance against such a stand of the field officers. There is some substance in the grievance of the petitioners in this regard, however, when this Court has found that this is the Directorate of Primary Education who is the Head of Department of these field officers, has taken such an adamant, illegal and even contemptuous stand, to make any observation against field officers, would be less justified. The stand of Director of Primary Education on the face of various orders of this Court which are referred above, is worth initiating contempt proceedings against him. However, it is left to the Government in Education Department to look into the matter with due seriousness and do needful against erring officers. For the present, by awarding cost to the tune of Rs. 5000/ payable to each petitioner, the matter is left there.
15. For the reasons recorded above, this court arrives at the judgment and passes the order, as under :
i) Inspite of more than one judgments of this Court against the respondent authorities, the denial of benefit of higher grade scale to the petitioners as claimed by them and Page 11 of 13 HC-NIC Page 11 of 13 Created On Wed Jul 20 01:36:04 IST 2016 C/SCA/12021/2001 JUDGMENT similarly situated persons, is held to be illegal, arbitrary and lacking bonafide on the part of respondent authorities, more particularly, Director of Primary Education, Gujarat State.
ii) The petitioners shall be paid all the three higher grade scales as per Government Resolution dated 5.7.1991, over and above selection grade availed by them which was prior to 26.12.1985, as held by this Court in Letters Patent Appeal No. 1073/2004 and cognate matters vide judgment dated 14.10.2004.
iii) The retirement dues of the petitioners shall also be recalculated accordingly.
iv) Arrears of difference of pay as well as retirement dues shall be calculated and paid within a period of four months from today.
v) The petitioners shall also be entitled to interest from 1.1.1995 till 31.1.2013 on the above amount, at the rate of 10% per annum, which shall also be paid along with arrears, as directed above.
vi) While implementing these directions, it shall also be kept in view that the petitioners of Special Civil Applications No.10878 of 2008, 11380 of 2008 and 11160 of 2008, had availed one promotion on the post of Education Inspector and therefore, they will be entitled to only remaining two higher grade scales and qua them, the directions shall be implemented accordingly.
vii) For the reasons recorded in paras8.5, 9.2, 9.3 and 10 to 14, more particularly para 12 of this judgment, each petitioners shall be paid cost of Rs. 5000/ by the Director of Primary Education, Gujarat State, which shall be paid within a period of three months from today. It would be open to the State authorities to recover this amount from erring officer(s), in accordance with law.
viii.The Principal Secretary, Education Department is further directed to carry out the directions contained in para 13 of this judgment within a period of three months from today.
Petitions stand allowed. Rule made absolute with costs as directed above."
10. In view of the judgment referred to above, no further adjudication is required.
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11. In the result, both the Writ Applications succeed and are hereby allowed. The impugned order is hereby ordered to be quashed. The authorities concerned are directed to refix the salary and consequential benefits including the pensionary benefits keeping in mind that the petitioners are entitled to 20003500 as the 2nd higher pay scale and Rs.22004000 as 3rd higher pay scale. The difference in the salary in accordance with 2nd higher pay scale and 3rd higher pay scale as declared shall also be calculated and paid to the petitioners.
12. I take notice of the fact that all the petitioners by now are aged about 80 years. This entire exercise shall be initiated immediately and the same shall be completed within a period of two months from the date of the receipt of this order.
13. Rule is made absolute to the aforesaid extent.
Direct Service is permitted.
(J.B.PARDIWALA, J.) * Vatsal Page 13 of 13 HC-NIC Page 13 of 13 Created On Wed Jul 20 01:36:04 IST 2016