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SCA/13704/2010 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13704 of 2010
With
SPECIAL
CIVIL APPLICATION No. 13711 of 2010
To
SPECIAL
CIVIL APPLICATION No. 13755 of 2010
=========================================================
VARMORA
JAYANTILAL MOHANBHAI & 45 - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 15 - Respondent(s)
=========================================================
Appearance
:
MR
KB PUJARA for
Petitioner(s) : 1 - 46.
MR MAULIK NANAVATI, AGP for Respondent(s)
: 1 - 2.
RULE SERVED BY DS for Respondent(s) : 1 -
16.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/07/2011
ORAL
ORDER
1. Heard
learned advocate Mr. Pujara appearing for petitioners and learned AGP
Mr. Maulik Nanavati appearing for respondent nos.1 to 9 only. For
rest of respondents, no one is appeared though served.
2. For
facts and circumstances of present case, synopsis and list of events
are relevant. Therefore, same is quoted as under:
“1. The
petitioners are employee of the schools for disabled children. This
petition is directed against ex-facie arbitrary and irrational action
of the respondent authorities in giving discriminatory treatment to
the petitioners in the matter of fixed monthly pay and in the
matter of automatic placement in the regular pay-scale on
completion of 5 years’ service merely because the petitioners
have been appointed prior to 16-2-2006 whereas increased
fixed monthly pay and automatic placement in the regular
pay-scale on completion of 5 years’ service are granted to
those employees who are appointed in the same schools after
16-2-2006.
2. The
relevant and important facts leading to the filing of this petition
are as under:-
2.1. The
petitioners are employed in the schools for disabled children
on fixed monthly pay of Rs.2000, Rs.2200, Rs.2800 and Rs.4200 as
Attendants (Peons), Sweepers, Clerk-cum-Typist, Assistant Teachers,
Craft Teachers and Hostel Rectors (Gruh Pati/Gruh Mata),
respectively.
2.2. The
said institutions are “institutions for Persons with
Disabilities” as defined in Section2(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 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 & Dumb ad 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.
2.3. The
petitioners were duly selected and appointed pursuant to No Objection
Certificate (N.O.C.) granted by the respondent authorities for the
vacancies in the duly sanctioned posts. Before making such
appointments the applications were invited through employment
exchange and by public advertisements, Selections were made by duly
constituted interview-Committee comprising of the District Social
Defence Officer and other members, and approval was granted by the
Department.
2.4. The
petitioners were initially appointed for a period of one year on
fixed monthly pay of Rs.2000 for Attendant (Peons) and Sweepers,
Rs.2200 for Clerk-cum-Typist, Rs.2800 for Teachers and Rs.4200 for
Hostel Rectors. Thereafter their continuation in the service has
been approved from year to year by the Director of Social Defence but
they are continued in the same monthly fixed pay as aforesaid until
this date since more than 6 to 7 years.
On
the other hand, those employees who are appointed in the very same
Institutions after 16-2-2006 are granted the benefit of increased
monthly fixed pay and they are also granted the benefit of automatic
placement in the regular pay-scale on completion of five years
service, pursuant to the Government Resolution dtd.16-2-2006,
1-8-2006 and 29-4-2010, issued by the Finance Department of the State
Government.
The
G.R. Dtd. 16-2-2006 provided for fixed monthly pay of Rs.1500 for
Class-IV employees, and Rs.2500, Rs.3500 and Rs.4500 for Class-III
employees.
The
said fixed monthly pays came to be revised by G.R. dated 29-4-2010 to
Rs.3500 per month for Class-IV employees, and Rs.4500, Rs.50000 and
Rs.6000 for Class-III employees.
However,
the aforesaid benefit of increased monthly fixed pay and placement in
the regular pay-scale on completion of five years’ service has not
been granted to the petitioners despite several representations, and
it has been declined by order at Anneuxre-O colly. (IMPUGNED).
Hence
this petition under Article 226 of the Constitution of India against
such ex-facie arbitrary and irrational action of the respondents.
3. The
petitioners are possessing requisite qualifications and they are much
more experienced than the employees who have been appointed after
16-2-2006. Therefore the respondents cannot give discriminatory
treatment to the petitioners. Even if the petitioners are not paid
more salaries than the subsequently recruited employees, the
petitioners are definitely entitled to at least the same monthly
fixed pay and placement in regular pay-scale on completion of 5
years’ service at par with the employees who have been
appointed after 16-2-2006.
4. The
petitioners say and submit that in the past, the employees serving in
various institutions for Disabled Persons were not getting benefits
like time scale, selection grade and other benefits which were being
made available to the teaching and non-teaching employees of the
Grant-in-Aid Primary and Secondary Schools running under the Social
Defence Department, and therefore, they had approached this Hon’ble
Court by way o SCA No.6638/1992 and tis Hon’ble Court had
substantially redressed their grievances by judgment and order dated
22-4-1994 as per ANNEXURE-P. Consequently
all such employees were granted pay-scales at par with the employees
of the said Grant-in-Aid schools and the said employees have also
been granted benefit of higher grade pay-scales and other benefits
including pensionary benefits. The present petitioners are also
therefore entitled to be treated at par with other employees who have
been recruited on or after 16-2-2006 both in the matter of monthly
fixed pay as well as in the matter of placement in the regular
pay-scales on completion of 5 years’ service.
5. The
petitioners say and submit that the newly inserted Article 21-A of
the Constitution of India provides for free and compulsory education
to all children of the age of 6 to 14 years in the following words:-
“21-A Right
to education. – The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such manner as
the State may, by law, determine.
Thereafter
the Right of Children to Free and Compulsory Education Act, 2009 has
been brought into force with effect from 1-4-2010. Section-3 of the
said Act reads as under:-
“3. Right
of child to free and compulsory education.
(1) Every
child of the age of six to fourteen years shall have a right to free
and compulsory education in a neighbourhood school till completion of
elementary education.
(2) For
the purpose of sub-section (1), no child shall be liable to pay any
kind of fee or charges or expenses which may prevent him or her from
pursuing and completing the elementary education:
Provided
that a child suffering from disability, as defined in clause (I) of
Section 2 of the Persons with Disabilities (Equal Opportunities,
Protection or rights and Full Participation) Act, 1995 (1 of 1996),
shall have the right to pursue free and compulsory elementary
education in accordance with the provisions of Chapter V of the said
Act.”
Chapter
– V (Sections 26 to 31) of the Persons with Disabilities (Equal
Opportunities, Protection of rights and Full Participation) Act, 1995
casts an obligation on the appropriate Governments and local
authorities to provide for free education for children with
disabilities and to make schemes and programmes for their non-formal
education, for research for designing and developing new assistive
devices and teaching aids and materials, for setting up of teachers’
training institutions to develop trained manpower for schools for
children with disabilities, and other matters.
Thus,
the institutions in which the petitioners are employed are being run
under the control and supervision of the Government and the salaries
of the employees of the said institutions are paid by way of
grant-in-aid by the Government as a part and parcel of the
Constitutional as well as statutory obligation of the Government as
aforesaid. It is therefore not open to the respondent authorities to
give discriminatory treatment to the employees of the said
institutions vis-a-vis the employees of other grant-in-aid
institutions, or to give discriminatory treatment to the employees of
the same institutions. It is highly arbitrary, irrational, absurd
and unjust on the part of the respondent authorities to pay less
salaries to the petitioners who are appointed prior to 16-2-2006 and
to continue their appointments on ad-hoc basis and to pay more
salaries to other employees who are appointed after 16-2-2006 and to
place them in regular pay-scale after completion of 5 years’ service.
Such action is therefore liable to be quashed and set aside.
6. In
Rabinarayan Mohapatra v. State of Orissa, Air 1991 SC 1286 it is held
that the practice of giving ad-hoc appointments to teachers on 89
days basis with one day break
suffers from vice of discrimination. In Rattan Lal vs. State of
Haryana, AIR 1987 SC 478 it is held that the State Government is
expected to function as a model employer and it cannot adopt the
pernicious practice of employing teachers on ad-hoc basis and denying
benefits of regular employment to them. In State of Haryana vs.
Piara, 1992 (4) SCC 118 = AIR, 1992 SC 2130 it is held that the State
should not exploit its employees nor should it take advantage of
helplessness of either the employees or the unemployed persons and
that the State should act as a model employer and give equal pay for
equal work and it should not keep a person in temporary or ad-hoc
status for long. In Chief Engineer vs. Jagdish, 1991 Supp. (2) SCC 1
= AIR 1991 SC 2000 it is held that in general, the grant of higher
pay to a junior and lower pay to a senior in the same cadre would be
violative of the rule of “equal pay for equal work”. In
State of W. B. vs. Debdas, 1991 (1) SCC 138 (para 15) and State of
Rajasthan vs. Gurcharan, 1990 Supp SCC 778 = AIR 1990 SC 1760 (para
10-11) it is held that mandamus would issue to give the petitioner
the same pay-scale as has been given to employees of the same cadre,
without any rational justification.
7. Recently,
a Division of this Hon’ble Court, while dealing with a matter
relating to fix wages of Government employees, has directed the
Government to do away with the contractual appointments by making the
posts regular, if a fix pay post is continued for more than three
years. A copy of the said order dtd. 26-8-2010 passed in SCA
No.2492/2009 (Coram:S. J.Mukhopadhaya, CJ and Akil Kureshi, J) is at
ANNEXURE-Q.
8. In
case of the present petitioners, the wages being paid to them are far
less then even the minimum wages prescribed under the Minimum Wages
Act, 1948 for the comparable employments such as Municipal
Corporations, Municipalities, Gram Panchayats and Un-aided Private
Educational Institutions, as on 11-2-2009, the relevant extracts
whereof are at ANNEXURE-R colly.
9. The
arbitrary action of the respondents is therefore required to be
quashed and set aside and the respondents are required to be directed
to forthwith pay the revised
monthly fixed pay to the petitioners as per G.R. dated 16-2-2006 and
29-4-2010 and also to place all the petitioners in the regular
pay-scales on completion of 5 years’ service.”
3. In
light of aforesaid synopsis which has been quoted as above, it is
also necessary to consider prayer made by petitioner in present group
of petitions in para-25(a) to (k). Said prayers are quoted as under:
“25. The
petitioners therefore humbly pray that YOUR LORDSHIS BE PLEASED to
issue a writ of or in the nature of mandamus and/or any other
appropriate writ, order or direction:-
(a) to
direct the respondents to pay to the petitioners fixed monthly pay as
per G.R. dtd. 16-2-2006 and 29-4-2010 as per Annexure-I colly and to
place the petitioners in the regular pay-scales on completion of 5
years’ service accordingly.
(b) To
direct the respondent authorities to treat the petitioners at par
with the junior employees who have been subsequently appointed in the
same Institutions after 16-2-2006, by paying to the petitioners the
same monthly fixed pay as are being paid to the said employees who
are appointed after 16-2-2006, as per G.R. dated 16-2-2006 and
29-4-2010 for a period of 5 years and thereafter to place the
petitioners in the regular pay-scales;
(c) To
direct the respondents to pay the arrears becoming payable to the
petitioners pursuant to the aforesaid directions, along with interest
@ 18% p.a.
(d) to
hold and declare that the action of the respondent authorities in
continuing the petitioners in the same fixed monthly pay of Rs.2000,
Rs.2200, s.2800 and Rs.4200 to the Attendants (Peons) and Sweepers,
Clerk-cum-Typist, Teachers and Hostel Rectors (Gruh Pati/Gruh Mata)
respectively since the date of their initial appointments, is bad in
law, null and void, arbitrary, discriminatory, irrational and
violative of Articles 14, 16, 19 and 21 of the Constitution of India;
(e) to
quash and set aside the communication dtd. 24th November,
2009 addressed by the State Government to the Director of Social
Defense and Order of Resp No.3 dtd. 8-7-2010 as per ANNEXURE-O colly.
(f) to
hold and declare that the statement of fixed monthly pay annexed with
the G.R. dtd. 15-9-2000 at Annexure-A stands substituted by the
revised fixed monthly pay as per G.Rs. dtd. 16-2-2006. 1-8-2006 and
29-4-2010 as per Annexure-I colly.
(g) to
direct the respondent State Government to amend the G.R. dtd.
15-9-2000 at Annexure-A as well as the statement of fixed monthly pay
of employees annexed therewith in accordance with the G.Rs. dated
16-2-2006, 1-8-2006 and 29-4-2010 as per Annexure-I colly, and to
grant benefit thereof to the petitioners accordingly;
(h) PENDING
THE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, BE
PLEASED to direct the respondent authorities to immediately start
paying to the petitioners the monthly fixed pay as per G.R. dated
16-2-2006 and G.R. dtd. 29-4-2010 as per Annexure-I colly. Subject to
further orders that may be passed in the present petition;
(i) PENDING
THE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, BE
PLEASED to restrain the respondents from altering the service
conditions of the petitioners averse to them in any manner;
(j) PENDING
THE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, BE
PLEASED to direct the respondent authorities to put the petitioners
in the regular pay-scales on completion of 5 years’ service at lease
from 16-2-2006 i.e. w.e.f. 16-2-2011, subject to further orders that
may be passed in the present petition;
(k) To
grant any other appropriate and just relief/s;”
4. In
light of these facts and prayers made by petitioner before this Court
in this group of petitions, recently Hon’ble Division Bench of this
Court has passed 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 meager 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.”
5. In
view of above order passed by Division Bench of this Court, according
to my opinion, the question raised in present group of petitions is
also squarely covered in Writ Petition (PIL) No.49 of 2011 in which
order is passed on 27/7/2011.
6. Therefore,
let registry may place present matters before Hon’ble Chief Justice
for necessary orders.
(H.K.RATHOD,
J.)
(ila)
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