IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4225 of 2011 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= GOHEL HIRENKUMAR JAYANTILAL & 4 - Petitioner(s) Versus STATE OF GUJARAT - THROUGH SECRETARY & 5 - Respondent(s) ========================================================= Appearance :
MRNACHIKETDMEHTA for Petitioner(s) : 1 - 5. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 4, 6, NOTICE SERVED BY DS for Respondent(s) : 2 - 3, 5, ========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 30/04/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition under Article 226 of the Constitution of India, the petitioners employed as Assistant Teachers in the schools for disabled children have prayed for the following reliefs:-
(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 16.02.20069 and not government resolution dated 15.09.2000.
(C) Your Lordships may be pleased to issue a writ of declaration to declare that the State Government's action of changing the service conditions of the petitioners adversely without prior show cause notice and hearing and reducing their fixed monthloy 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 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 Lordship 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.”
2. The facts relevant for the purpose of deciding this petition may be summarized thus:-
2.1 The petitioners are employed as Assistant Teacher in the schools for disabled children on a fixed monthly pay of Rs.3500/-. This was revised to Rs.5000/- from the year 01.05.2010. Respondents nos. 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, 1995. 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. The said institutions are running schools and institutions for disabled children such as blind and visually impaired, deaf and dumb and mentally retarded children. They are run under the control, supervision and guidance of the Social Defence Department of the State Government. The said department is now re-named as Social Justice and Empowerment Department.
2.2 The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides for mandatory obligation of the State Government to provide for rehabilitation of the disabled persons and to take affirmative action for the said purpose. As a part of discharging the said statutory obligation, the State Government decided to recognize with grant-in-aid 20 institutions working in the field of rehabilitation of disabled persons. This was done by issuance of government resolution dated 15.09.2000.
2.3 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-typist, teachers and hostel rectors. 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 concenred 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 of 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. These persons include the petitioners of Special Civil Application No.13704/10.
2.4 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 dated 28.03.2006 to provide coverage to 1000 additional disabled children. Coverage of additional children would require additonal 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. Out of these 78 newly sanctioned posts, 44 posts were allocated for assistant teachers and 11 posts for craft teachers.
2.5 Thereafter, by order dated 13.06.2006, the approval of the State Government was taken for appointment of additional staff as provided for in government resoluition dated 28.03.2006 and in line with government resoultion dated 16.02.2006. This approval order dated 13.06.2006 stipulates that an assistant teacher is 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.
2.6 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 appointmens were extended periodically by separate contracts.
2.7 In the year 2009, the 6th Pay Commission came into force and the State Government vide government resolution dated 12.02.2009 adopted the recommandations of the 6th Pay Commission. The petitioners got a small benefit of 6th pay commission. In that their fixed monthly pay was increased from Rs.3,500/- to Rs.5,000/- w.e.f. 01.05.2010.
2.8 On 05.10.2010, the appointess under government resolution dated 15.09.2000 filed Special Civil Appliation No.13704/10 in this Court seeking parity with the present petitioners. As observed earlier, the petitioners of Special Civil Application No.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 they are senior to petitioners, they were paid less than the petitioners who from 01.05.2000 were drawing fixed montly pay of Rs.5,000/-.
2.9 On 14.10.2010, the following order was passed by this Court in Special Civil Application No.13740 of 2010:-
“ 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.”
2.10 Without understanding the import of the oral order dated 14.10.2010, passed by this Court in Special Civil Application No.13704 of 2010, 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 the government resolution dated 16.02.2006 (which includes the petitioners) be brought over to the old scheme of government resolution dated 15.09.2000.
2.11 Acting on this, respondent no.6 issued an titled "revised order" on 23.12.2010 stipulating that the petitioners' appointment would now be governed by government resoltuion 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 dated 23.12.2010 was issued to the petitioners without prior show cause notice and hearing.
2.12 The petitioner no.1 addressed a representation to respondent no.1 on 04.03.2011 against the revised order dated 23.12.2010 issued by respondent no.3.
3. However, it appears that no cognizance of the representation was taken by the respondents. Thus, revised order dated 23.12.2010 issued by the respondent no.3 was made effective from 01.04.2011 suggestive of the fact that the pay of the petitioners would be reduced from Rs.5000/- to Rs.2800/- from 01.04.2011.
4. Contentions of the petitioner:-
4.1 Mr.Shalin Mehta, learned Counsel for the petitioner submitted that the revised order dated 23.12.2010 issued by respondent no.3, and thereby, changing the petitioners' service conditions adversely without prior show cause notice and hearing is violative of the principles of natural justice.
4.2 He further submitted that the revised order dated 23.12.2010 issued by respondent no.3 and thereby changing the petitioners' service conditions adversely smacks of non-application of mind. It is arbitrary and capricious and therefore, violative of Article 14 of the Constitution of India.
4.3 Mr.Shalin Mehta also submitted that the revised order dated 23.12.2010 issued by respondent no.3 and thereby changing the petitioners' service conditions adversely is inconsistent and incompatible with the High Court's order dated 14.10.2010 passed in Special Civil Application No.13704 of 2010.
4.4 It is also submitted that revised order dated 23.12.2010 issued by respondent no.3 and thereby changing the petitioners' service conditions adversely is violative of the petitioners' fundamental right to life guaranteed under Article 21 of the Constitution of India. Over the years, pay of a government servant ought to increase. It cannot reduce. In the present case, the petitioners are sought to be given monthly pay of Rs.2800/- from 01.04.2011 which is even less than the prevailing minimum wage. This would violate Article 23 of the Constitution of India as well.
4.5 Lastly, Mr.Shalin Mehta, contended that action of respondent no.3 in issuing the revised order dated 23.12.2010 and thereby changing the service conditions of the petitioners adversely without prior show cause notice and hearing is inconsistent and incompatible with the Supreme Court of India's decision in Bhagwan Shukla Vs. Union of India and others, reported in (1994) 6 SCC 154.
5. Contentions of the respondents:- The petition has been opposed by the respondents by filing affidavit-in-reply. The stands taken in the affidavit is as under:-
5.1 Learned Assistant Government Ms.Maithili Mehta submits that petitioners have preferred this petition praying for writ of certiorari to quash and set aside the order dated 23.12.2010, passed by the respondent no.3 herein and has further prayed for a writ to declare that the petitioners appointment are governed by the Government Resolution dated 16.02.2006 and not by the Government Resolution dated 15.09.2000. The petitioners in this petition have also prayed for a writ to declare that the State Government's action of changing the service condition of the petitioners without prior show cause notice and hearing in reducing the fixed monthly pay from Rs.5000/- to Rs.2800/- is violative of Articles 14, 16, 21 and 23 of the Constitution of India.
5.2 Learned Assistant Government Ms.Maithili Mehta further submits that in all 20 institutions were granted sanction by the State Government to discharge the said mandatory obligation cast upon the State Government. Out of 20 institutions 16 institutions were functioning through several trusts and out of those institutions started by different trust, one institution, which was not functioning properly its recognition came to be cancelled by the State Government, therefore, in total there are 15 institutions, which are functioning in accordance with the Government Resolution dated 15.09.2000.
5.3 Learned Assistant Government Ms.Maithili Mehta submits that appointment of 78 employees were made in those institutions, which were sanctioned by the State Government as per Government Resolution dated 15.09.2000 and as per the said resolution the employees were given appointment on the condition of paying fixed salary per month, which was as per the policy of the State Government and in accordance with the object mentioned in the said resolution.
5.4 Learned Assistant Government Ms.Maithili Mehta further submits that it is necessary to mention here that the prayer of the petitioners herein have been accepted by respondent authority subject to final outcome of the present petition and accordingly, an order has been made for considering their case in accordance with the provision of Government Resolution dated 16.02.2006.
6. Having heard learned Counsel for the respective parties and having gone through material on record, we find that the present petition can be disposed of in term of the judgment, which we have rendered in Special Civil Application No.13704 of 2010 with Special Civil Application No.13711 of 2010 to Special Civil Application No.13755 of 2010.
7. We find that the petitioners of Special Civil Application No.13704 of 2010 and other allied matters are all identical placed with the petitioners of the present petition. They are all serving as Assistant Teachers in the schools for the disabled children on a fixed monthly pay as per resolution passed by the State Government time to time. In Special Civil Application No.13704 of 2010 and other allied matters, we have taken view relying on our earlier decision in the matter of Shri.Yogesh Foundation for Human Dignity Versus. State of Gujarat and Others, reported in 2012(1) G.L.H. 321. That teachers in the schools for the disabled children are entitled to get the minimum of the pay-scale prescribed for the respective scale of pay available to the teachers doing the same job. In Special Civil Application No.13704 of 2010 and other allied matters, we have held as under:-
" In the aforesaid view of the matter, we are convinced by the fact that the petitioners serving as teachers in the schools for the disabled children are entitled to get the minimum of the pay- scale prescribed for the respective scale of pay available to the teachers doing the same job. The petitioners who have completed five years of service from the initial appointment i.e. from 2000 shall be placed in the regular pay-scale. The newly appointed employees, before getting the benefit of the regular scale on being found to be suitable on completion of the fixed period, should get at least, the total amount payable to an employee in the lowest grade of pay-scale for that post from the date of their appointment. The first five years of service from the date of initial appointment shall also be treated to be part of their service period for all future benefits including the retiral one.
The writ-petitions are allowed to the aforesaid extent. The State Governmnet is directed to modify the scheme accordingly in terms of our directions and shall extend the benefit of our directions from the date of the appointment as Assistant Teachers in schools for the disabled children run and managed 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."
8. The present petition also can be allowed in terms of relief, which we have granted to the petitioners of Special Civil Application No.13704 of 2010 and other allied matters.
9. In the aforesaid view of the matter, we are convinced by the fact that the petitioners serving as teachers in the schools for the disabled children are entitled to get the minimum of the pay-scale prescribed for the respective scale of pay available to the teachers doing the same job. If the petitioners have completed five years of service from the initial appointment then in that case, they shall be placed in the regular pay-scale. However, fixed period of five years from the date of appointmentis still to be completed then in that event, till the completion of period of five years from the date of appointment, the petitioners shall be paid the lowest grade of the regular pay-scale for that post from the date of their appointment. The first five years of service from the date of initial appointment shall also be treated to be part of their service peirod for future benefit including the retiral one.
10. The writ-petitions are allowed to the aforesaid extent. The State Governmnet is directed to modify the scheme accordingly in terms of our directions and shall extend the benefit of our directions from the date of the appointment as Assistant Teachers in schools for the disabled children run and managed 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.
(BHASKAR BHATTACHARYA, ACTING C.J.) (J.B.PARDIWALA,J.) Girish