{"id":136729,"date":"2011-07-29T00:00:00","date_gmt":"2011-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/varmora-vs-state-on-29-july-2011"},"modified":"2018-11-17T19:08:22","modified_gmt":"2018-11-17T13:38:22","slug":"varmora-vs-state-on-29-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/varmora-vs-state-on-29-july-2011","title":{"rendered":"Varmora vs State on 29 July, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Varmora vs State on 29 July, 2011<\/div>\n
Author: H.K.Rathod,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/13704\/2010\t 12\/ 12\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 13704 of 2010\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 13711 of 2010\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 13755 of 2010\n \n \n=========================================================\n\n \n\nVARMORA\nJAYANTILAL MOHANBHAI & 45 - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT THROUGH SECRETARY & 15 - Respondent(s)\n \n\n=========================================================\n\n \n\nAppearance\n: \nMR\nKB PUJARA for\nPetitioner(s) : 1 - 46. \nMR MAULIK NANAVATI, AGP for Respondent(s)\n: 1 - 2. \nRULE SERVED BY DS for Respondent(s) : 1 -\n16. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\nDate\n: 29\/07\/2011 \n\n \n\n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr. Pujara appearing for petitioners and learned AGP
\nMr. Maulik Nanavati appearing for respondent nos.1 to 9 only.  For
\nrest of respondents, no one is appeared though served.\n<\/p>\n
2.\tFor
\nfacts and circumstances of present case, synopsis and list of events
\nare relevant.  Therefore, same is quoted as under:\n<\/p>\n
“1.\tThe
\npetitioners are employee of the schools for disabled children.  This
\npetition is directed against ex-facie arbitrary and irrational action
\nof the respondent authorities in giving discriminatory treatment to
\nthe petitioners in the matter of  fixed monthly pay and in the
\nmatter of  automatic placement in the regular pay-scale on
\ncompletion of 5 years’ service merely because the petitioners
\nhave been appointed  prior to 16-2-2006 whereas  increased
\nfixed monthly pay and  automatic placement in the regular
\npay-scale on completion of 5  years’ service are granted to
\nthose employees who are appointed in the same schools  after
\n16-2-2006.\n<\/p>\n
2.\tThe
\nrelevant and important facts leading to the filing of this petition
\nare as under:-\n<\/p>\n
2.1.\tThe
\npetitioners are employed in the schools for disabled children
\non fixed monthly pay of Rs.2000, Rs.2200, Rs.2800 and Rs.4200 as
\nAttendants (Peons), Sweepers, Clerk-cum-Typist, Assistant Teachers,
\nCraft Teachers and Hostel Rectors (Gruh Pati\/Gruh Mata),
\nrespectively.\n<\/p>\n
2.2.\tThe
\nsaid institutions are “institutions for Persons with
\nDisabilities” as defined in Section2(m) of the Persons with
\nDisabilities (Equal Opportunities, Protection of Rights and Full
\nParticipation) Act, 1995.  The said institutions are duly registered
\nand recognized by the State Government under Section 51 of the Act
\nand they are provided 100% grant-in-aid towards the salaries of their
\nemployees.  The said institutions are running schools and
\ninstitutions for Disabled Children such as Blind and Visually
\nImpaired, Deaf & Dumb ad Mentally Retarded children.  They are
\nrun under the control, supervision and guidance of the Social Defence
\nDepartment of the State Government.  The said Department is now
\nre-named as Social Justice and Empowerment Department.\n<\/p>\n
2.3.\tThe
\npetitioners were duly selected and appointed pursuant to No Objection
\nCertificate (N.O.C.) granted by the respondent authorities for the
\nvacancies in the duly sanctioned posts.  Before making such
\nappointments the applications were invited through employment
\nexchange and by public advertisements, Selections were made by duly
\nconstituted interview-Committee comprising of the District Social
\nDefence Officer and other members, and approval was granted by the
\nDepartment.\n<\/p>\n
2.4.\tThe
\npetitioners were initially appointed for a period of one year on
\nfixed monthly pay of Rs.2000 for Attendant (Peons) and Sweepers,
\nRs.2200 for Clerk-cum-Typist, Rs.2800 for Teachers and Rs.4200 for
\nHostel Rectors.  Thereafter their continuation in the service has
\nbeen approved from year to year by the Director of Social Defence but
\nthey are continued in the same monthly fixed pay as aforesaid until
\nthis date since more than 6 to 7 years.\n<\/p>\n
\tOn
\nthe other hand, those employees who are appointed in the very same
\nInstitutions after 16-2-2006 are granted the benefit of increased
\nmonthly fixed pay and they are also granted the benefit of automatic
\nplacement in the regular pay-scale on completion of five years
\nservice, pursuant to the Government Resolution dtd.16-2-2006,
\n1-8-2006 and 29-4-2010, issued by the Finance Department of the State
\nGovernment.\n<\/p>\n
\tThe
\nG.R. Dtd. 16-2-2006 provided for fixed monthly pay of Rs.1500 for
\nClass-IV employees, and Rs.2500, Rs.3500 and Rs.4500 for Class-III
\nemployees.\n<\/p>\n
\tThe
\nsaid fixed monthly pays came to be revised by G.R. dated 29-4-2010 to
\nRs.3500 per month for Class-IV employees, and Rs.4500, Rs.50000 and
\nRs.6000 for Class-III employees.\n<\/p>\n
\tHowever,
\nthe aforesaid benefit of increased monthly fixed pay and placement in
\nthe regular pay-scale on completion of five years’ service has not
\nbeen granted to the petitioners despite several representations, and
\nit has been declined by order at Anneuxre-O colly. (IMPUGNED).\n<\/p>\n
\tHence
\nthis petition under Article 226 of the Constitution of India against
\nsuch ex-facie arbitrary and irrational action of the respondents.\n<\/p>\n
3.\tThe
\npetitioners are possessing requisite qualifications and they are much
\nmore experienced than the employees who have been appointed after
\n16-2-2006.  Therefore the respondents cannot give discriminatory
\ntreatment to the petitioners.  Even if the petitioners are not paid
\nmore salaries than the subsequently recruited employees, the
\npetitioners are definitely entitled to at least the same monthly
\nfixed pay and placement in regular pay-scale on completion of 5
\nyears’ service  at par with the employees who have been
\nappointed after 16-2-2006.\n<\/p>\n
4.\tThe
\npetitioners say and submit that in the past, the employees serving in
\nvarious institutions for Disabled Persons were not getting benefits
\nlike time scale, selection grade and other benefits which were being
\nmade available to the teaching and non-teaching employees of the
\nGrant-in-Aid Primary and Secondary Schools running under the Social
\nDefence Department, and therefore, they had approached this Hon’ble
\nCourt by way o SCA No.6638\/1992 and tis Hon’ble Court had
\nsubstantially redressed their grievances by judgment and order dated
\n22-4-1994 as per ANNEXURE-P. Consequently
\nall such employees were granted pay-scales at par with the employees
\nof the said Grant-in-Aid schools and the said employees have also
\nbeen granted benefit of higher grade pay-scales and other benefits
\nincluding pensionary benefits.  The present petitioners are also
\ntherefore entitled to be treated at par with other employees who have
\nbeen recruited on or after 16-2-2006 both in the matter of monthly
\nfixed pay as well as in the matter of placement in the regular
\npay-scales on completion of 5 years’ service.\n<\/p>\n
5.\tThe
\npetitioners say and submit that the newly inserted Article 21-A of
\nthe Constitution of India provides for free and compulsory education
\nto all children of the age of 6 to 14 years in the following words:-\n<\/p>\n
“21-A\tRight
\nto education. – The State shall provide free and compulsory education
\nto all children of the age of six to fourteen years in such manner as
\nthe State may, by law, determine.\n<\/p>\n
\tThereafter
\nthe Right of Children to Free and Compulsory Education Act, 2009 has
\nbeen brought into force with effect from 1-4-2010.  Section-3 of the
\nsaid Act reads as under:-\n<\/p>\n
“3.\tRight
\nof child to free and compulsory education.\n<\/p>\n
(1)\tEvery
\nchild of the age of six to fourteen years shall have a right to free
\nand compulsory education in a neighbourhood school till completion of
\nelementary education.\n<\/p>\n
(2)\tFor
\nthe purpose of sub-section (1), no child shall be liable to pay any
\nkind of fee or charges or expenses which may prevent him or her from
\npursuing and completing the elementary education:\n<\/p>\n
Provided
\nthat a child suffering from disability, as defined in clause (I) of
\nSection 2 of the Persons with Disabilities (Equal Opportunities,
\nProtection or rights and Full Participation) Act, 1995 (1 of 1996),
\nshall have the right to pursue free and compulsory elementary
\neducation in accordance with the provisions of Chapter V of the said
\nAct.”\n<\/p>\n
\tChapter\n<\/p>\n
– V (Sections 26 to 31) of the Persons with Disabilities (Equal
\nOpportunities, Protection of rights and Full Participation) Act, 1995
\ncasts an obligation on the appropriate Governments and local
\nauthorities to provide for free education for children with
\ndisabilities and to make schemes and programmes for their non-formal
\neducation, for research for designing and developing new assistive
\ndevices and teaching aids and materials, for setting up of teachers’
\ntraining institutions to develop trained manpower for schools for
\nchildren with disabilities, and other matters.\n<\/p>\n
\tThus,
\nthe institutions in which the petitioners are employed are being run
\nunder the control and supervision of the Government and the salaries
\nof the employees of the said institutions are paid by way of
\ngrant-in-aid by the Government as a part and parcel of the
\nConstitutional as well as statutory obligation of the Government as
\naforesaid.  It is therefore not open to the respondent authorities to
\ngive discriminatory treatment to the employees of the said
\ninstitutions vis-a-vis the employees of other grant-in-aid
\ninstitutions, or to give discriminatory treatment to the employees of
\nthe same institutions.  It is highly arbitrary, irrational, absurd
\nand unjust on the part of the respondent authorities to pay less
\nsalaries to the petitioners who are appointed prior to 16-2-2006 and
\nto continue their appointments on ad-hoc basis and to pay more
\nsalaries to other employees who are appointed after 16-2-2006 and to
\nplace them in regular pay-scale after completion of 5 years’ service.
\n Such action is therefore liable to be quashed and set aside.\n<\/p>\n
6.\tIn
\nRabinarayan Mohapatra v. State of Orissa, Air<\/a> 1991 SC 1286 it is held
\nthat the practice of giving ad-hoc appointments to teachers on 89
\ndays basis with one day break
\nsuffers from vice of discrimination.  In Rattan Lal vs. State of
\nHaryana, AIR 1987 SC 478 it is held that the State Government is
\nexpected to function as a model employer and it cannot adopt the
\npernicious practice of employing teachers on ad-hoc basis and denying
\nbenefits of regular employment to them.  In State of Haryana vs.
\nPiara, 1992 (4) SCC 118 = AIR, 1992 SC 2130 it is held that the State
\nshould not exploit its employees nor should it take advantage of
\nhelplessness of either the employees or the unemployed persons and
\nthat the State should act as a model employer and give equal pay for
\nequal work and it should not keep a person in temporary or ad-hoc
\nstatus for long.  In Chief Engineer vs. Jagdish, 1991 Supp. (2) SCC 1
\n= AIR 1991 SC 2000 it is held that in general, the grant of higher
\npay to a junior and lower pay to a senior in the same cadre would be
\nviolative of the rule of “equal pay for equal work”.  In
\nState of W. B. vs. Debdas, 1991 (1) SCC 138 (para 15) and State of
\nRajasthan vs. Gurcharan,<\/a> 1990 Supp SCC 778 = AIR 1990 SC 1760 (para
\n10-11) it is held that mandamus would issue to give the petitioner
\nthe same pay-scale as has been given to employees of the same cadre,
\nwithout any rational justification.\n<\/p>\n
7.\tRecently,
\na Division of this Hon’ble Court, while dealing with a matter
\nrelating to fix wages of Government employees, has directed the
\nGovernment to do away with the contractual appointments by making the
\nposts regular, if a fix pay post is continued for more than three
\nyears.  A copy of the said order dtd. 26-8-2010 passed in SCA
\nNo.2492\/2009 (Coram:S. J.Mukhopadhaya, CJ and Akil Kureshi, J) is at
\n ANNEXURE-Q.\n<\/p>\n
8.\tIn
\ncase of the present petitioners, the wages being paid to them are far
\nless then even the minimum wages prescribed under the Minimum Wages
\nAct, 1948 for the comparable employments such as Municipal
\nCorporations, Municipalities, Gram Panchayats and Un-aided Private
\nEducational Institutions, as on 11-2-2009, the relevant extracts
\nwhereof are at  ANNEXURE-R colly.\n<\/p>\n
9.\tThe
\narbitrary action of the respondents is therefore required to be
\nquashed and set aside and the respondents are required to be directed
\nto forthwith pay the revised
\nmonthly fixed pay to the petitioners as per G.R. dated 16-2-2006 and
\n29-4-2010 and also to place all the petitioners in the regular
\npay-scales on completion of 5 years’ service.”\n<\/p>\n
3.\tIn
\nlight of aforesaid synopsis which has been quoted as above, it is
\nalso necessary to consider prayer made by petitioner in present group
\nof petitions in para-25(a) to (k).  Said prayers are quoted as under:\n<\/p>\n
“25.\tThe
\npetitioners therefore humbly pray that YOUR LORDSHIS BE PLEASED to
\nissue a writ of or in the nature of mandamus and\/or any other
\nappropriate writ, order or direction:-\n<\/p>\n
(a)\tto
\ndirect the respondents to pay to the petitioners fixed monthly pay as
\nper G.R. dtd. 16-2-2006 and 29-4-2010 as per Annexure-I colly and to
\nplace the petitioners in the regular pay-scales on completion of 5
\nyears’ service accordingly.\n<\/p>\n
(b)\tTo
\ndirect the respondent authorities to treat the petitioners at par
\nwith the junior employees who have been subsequently appointed in the
\nsame Institutions after 16-2-2006, by paying to the petitioners the
\nsame monthly fixed pay as are being paid to the said employees who
\nare appointed after 16-2-2006, as per G.R. dated 16-2-2006 and
\n29-4-2010 for a period of 5 years and thereafter to place the
\npetitioners in the regular pay-scales;\n<\/p>\n
(c)\tTo
\ndirect the respondents to pay the arrears becoming payable to the
\npetitioners pursuant to the aforesaid directions, along with interest
\n@ 18% p.a. <\/p>\n
(d)\tto
\nhold and declare that the action of the respondent authorities in
\ncontinuing the petitioners in the same fixed monthly pay of Rs.2000,
\nRs.2200, s.2800 and Rs.4200 to the Attendants (Peons) and Sweepers,
\nClerk-cum-Typist, Teachers and Hostel Rectors (Gruh Pati\/Gruh Mata)
\nrespectively since the date of their initial appointments, is bad in
\nlaw, null and void, arbitrary, discriminatory, irrational and
\nviolative of Articles 14, 16, 19 and 21 of the Constitution of India;\n<\/p>\n
(e)\tto
\nquash and set aside the communication dtd. 24th November,
\n2009 addressed by the State Government to the Director of Social
\nDefense and Order of Resp No.3 dtd. 8-7-2010 as per ANNEXURE-O colly.\n<\/p>\n
(f)\tto
\nhold and declare that the statement of fixed monthly pay annexed with
\nthe G.R. dtd. 15-9-2000 at Annexure-A stands substituted by the
\nrevised fixed monthly pay as per G.Rs. dtd. 16-2-2006. 1-8-2006 and
\n29-4-2010 as per Annexure-I colly.\n<\/p>\n
(g)\tto
\ndirect the respondent State Government to amend the G.R. dtd.
\n15-9-2000 at Annexure-A as well as the statement of fixed monthly pay
\nof employees annexed therewith in accordance with the G.Rs. dated
\n16-2-2006, 1-8-2006 and 29-4-2010 as per Annexure-I colly, and to
\ngrant benefit thereof to the petitioners accordingly;\n<\/p>\n
(h)\tPENDING
\nTHE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, BE
\nPLEASED to direct the respondent authorities to immediately start
\npaying to the petitioners the monthly fixed pay as per G.R. dated
\n16-2-2006 and G.R. dtd. 29-4-2010 as per Annexure-I colly. Subject to
\nfurther orders that may be passed in the present petition;\n<\/p>\n
(i)\tPENDING
\nTHE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, BE
\nPLEASED to restrain the respondents from altering the service
\nconditions of the petitioners averse to them in any manner;\n<\/p>\n
(j)\tPENDING
\nTHE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, BE
\nPLEASED to direct the respondent authorities to put the petitioners
\nin the regular pay-scales on completion of 5 years’ service at lease
\nfrom 16-2-2006 i.e. w.e.f. 16-2-2011, subject to further orders that
\nmay be passed in the present petition;\n<\/p>\n
(k)\tTo
\ngrant any other appropriate and just relief\/s;”\n<\/p>\n
4.\tIn
\nlight of these facts and prayers made by petitioner before this Court
\nin this group of petitions, recently Hon’ble Division Bench of this
\nCourt has passed order on 27\/7\/2011 in Writ Petition (PIL) No.49 of
\n2011 which is quoted as under:\n<\/p>\n
\t“Question
\nthat arises in this case is whether State Government is exploiting
\nunemployed persons by paying wages lesser than prescribed scales for
\nsame and equivalent posts  on which persons are performing similar
\nduties, responsibilities, accountabilities with same qualifications,
\nincluding those who have been appointed after following legal
\nprocedure, and thereby paying less than the minimum wages. Other
\nquestion is whether paying meager wages to the police personnel and
\nteachers will boost the corruption in the State.\n<\/p>\n
\tAs
\nthe questions are of greater importance, we do not treat this
\npetition as Public Interest Litigation in regard to any service
\nmatter, but will decide the questions as raised above.\n<\/p>\n
\tADMIT.\n<\/p>\n
\tRespondents
\nhave appeared and filed reply affidavit. Petitioner may file
\nrejoinder and may complete pleadings.\n<\/p>\n
Post
\nthe matter for hearing on 9th
\nAugust, 2011 at 2.30 p.m. on the top of the list as first case.”\n<\/p>\n
5.\tIn
\nview of above order passed by Division Bench of this Court, according
\nto my opinion, the question raised in present group of petitions is
\nalso squarely covered in Writ Petition (PIL) No.49 of 2011 in which
\norder is passed on 27\/7\/2011.\n<\/p>\n
6.\tTherefore,
\nlet registry may place present matters before Hon’ble Chief Justice
\nfor necessary orders.\n<\/p>\n
(H.K.RATHOD,
\nJ.) <\/p>\n
(ila)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Varmora vs State on 29 July, 2011 Author: H.K.Rathod, Gujarat High Court Case Information System Print 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 ========================================================= […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-136729","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nVarmora vs State on 29 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/varmora-vs-state-on-29-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Varmora vs State on 29 July, 2011 - 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