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2011 DIGILAW 762 (GUJ)

Pinakin N. Trived v. State of Gujarat

2011-11-17

ANANT S.DAVE

body2011
Judgment Anant S. Dave, J.—This petition under Article 226 of the Constitution of India is filed by the petitioners employed in Homeopathic Medical Colleges run by non-government public trusts and institutions receiving grant-in-aid from the Government of Gujarat, with a prayer to quash and set aside Government Resolution dated 21.11.1998 issued by the Department of Health and Family Welfare, Government of Gujarat, by which, conditions Nos. 3, 4, 5, 6, 7, 8 and 11 came to be deleted and wherever a reference was made to General Provident Fund [GPF] in condition Nos. 10, 12 and 13 to be replaced by Contributory Provident Fund [CPF]. By deletion of the above condition, the petitioners are deprived of certain retiral benefits which are available to the employees of the State of Gujarat and similarly situated employees working in non-government Ayurvedic Colleges getting grant-in-aid from the Government of Gujarat. 1.1 According to the petitioners, there are about five non-government Homeopathic Medical Colleges who receive grant-in-aid from the Government of Gujarat and as per Government Resolution dated 8.9.1972, which referred to a letter dated 17.1.1972 received by the Government of Gujarat from the Government of India by which the State Government was to provide necessary funds to encourage homeopathic education to bring selected institutes to the required standard and, accordingly, the Government of India proposed to give assistance to the selected private Homeopathic Medical Colleges and certain norms were determined as required for 4th Five Year Plan. By issuing another Government Resolution dated 8.1.1976, financial assistance to be provided by the Central Government was continued as per the letter dated 3.3.1975 of the Government of India and further on 24.12.1976 a resolution was passed for providing rules for regulating Homeopathic research and teaching institutions and hospitals. Even by Government Resolution dated 3.6.1988, it was decided to apply recommendations of 4th Pay Commission to the State Government employees and various other employees of non-government institutions receiving grant-in-aid and, accordingly, benefits of 4th Pay Commission were conferred upon the petitioners. 1.2 By subsequent Government Resolution dated 13.11.1998, revised pay-scale as per the recommendations of 5th Pay Commission was accepted and further clauses 5, 6 and 10 conferring certain retiral benefits to the employees who have retired prior to 1.1.1996 and thereafter. 1.2 By subsequent Government Resolution dated 13.11.1998, revised pay-scale as per the recommendations of 5th Pay Commission was accepted and further clauses 5, 6 and 10 conferring certain retiral benefits to the employees who have retired prior to 1.1.1996 and thereafter. However, on 21.11.1998, after 11 days, a corrigendum was issued by which certain conditions came to be deleted which resulted adversely to the petitioners since benefits of clauses Nos.3, 4, 5, 6, 7, 8 and 11 were taken away by deleting the above condition and reference of GPF in various clauses was replaced by CPF. It is also not in dispute that the employees, namely, teaching and non-teaching of non-government Ayurvedic Medical Colleges receiving grant-in-aid are conferred gratuity, pension and other retiral benefits and further, in case of disciplinary action and certain other allowances, rules were framed for governing service conditions of the employees of the State Government are applicable to the petitioners.That, various communications/orders passed by the Authorities are relied upon by the petitioners. That even non-government law colleges receiving grant-in-aid and their employees teaching as well as non-teaching are conferred the retiral benefits. 2. In the above back-drop of facts, Mr. N.K. Majumdar, learned counsel for the petitioner, would submit that, when teaching and non-teaching staff of non-government Ayurvedic Medical Colleges as well as Allopathy Medical Colleges receiving grant-in-aid are conferred all benefits, a different treatment to the petitioners depriving of such benefits itself is discriminatory ad the decision of the respondents to deny such benefits is unreasonable and arbitrary exercise of powers in violative of Article 14 of the Constitution of India and, therefore, this Court may interfere in exercise of power under Article 226 of the Constitution of India and set aside the impugned decision, as prayed for. Besides, all the petitioners worked under the same department of the Government of Gujarat, namely, Department of Health and Family Welfare, and the employees of one branch of medicine are conferred benefits depriving the employees of other branch of medicine almost discharging similar duties again amounts to discrimination, which is illegal and needs to be set right. Besides, all the petitioners worked under the same department of the Government of Gujarat, namely, Department of Health and Family Welfare, and the employees of one branch of medicine are conferred benefits depriving the employees of other branch of medicine almost discharging similar duties again amounts to discrimination, which is illegal and needs to be set right. It is next contended that, once the benefits are conferred by Government Resolution dated 13.11.1998, deletion of certain conditions vide the impugned Government Resolution dated 21.11.1998 and that too without assigning any reasons and affording opportunity of hearing to the petitioners is violative of principles of natural justice and, further, exercise of powers by the Authority in absence of reasons reveals non-application of mind and, for the grounds as above, the impugned decision is to be struck down. It is further submitted that right from 1976 when a decision was taken by the State Government on the basis of communication or letter dated 3.3.1975 by the Government of India to strengthen Homeopathic Branch of Indian Medicine and to provide grant-in-aid to Homeopathic research even at private teaching institutions and hospitals, for all purposes, the employees like the petitioners who were treated on par with the government employees for receiving pay-scale and other allowances and benefits and further similarly situated employees in other non-governmental grant-in-aid colleges where the employees were conferred benefits, deprivation of similar benefits by the State Authority is not justified particularly when till 2005 the subject matter was under consideration. It is, therefore, submitter that the petitioners for all purpsoes having requisite qualification performing similar duties and conferred other benefits on par with government employees deserve to be treated even for receiving retiral dues including pension and, thus, the present petition may be allowed and and the relief as prayed for may be granted. 3. Per contra, the learned AGP has basically relied upon the affidavit-in-reply filed by the Joint Secretary, Department of Health and Family Welfare, State of Gujarat, and submitted that in a matter conferring benefits to the employees like the petitioners who are from non-governmental grant-in-aid colleges is an executive decision and is a matter of policy for the State of Gujarat. Besides, providing 100% expenditure towards pay-scale or maintenance and even exercising control over such institutions by itself would not be sufficient to confer benefits upon the petitioners as claimed. Besides, providing 100% expenditure towards pay-scale or maintenance and even exercising control over such institutions by itself would not be sufficient to confer benefits upon the petitioners as claimed. The employees of the State Government and their service conditions are governed by Gujarat Civil Services (Classification & Control) Rules, Disciplinary Appeal Rules and Pension Rules framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India. No parity can be conferred upon the petitioners who are serving non-government colleges and recruited accordingly. It is also submitted that the decision of the State government to extend benefits to the employees of non-government Ayurvedic Medical Colleges receiving grant-in-aid was based on the consideration of nature of system of ayurvedic medicine, its availability and acceptability and requirement based on belief of the people at large. It is further submitted that parity in pay-scale, similarity of performance of duties, qualification of employees in both systems, namely, Homeopathic and Ayurvedic, are based on working of such system and administrative exigency. Even the government resolution referred to by the learned counsel for the petitioners would reveal that the petitioners were conferred only benefits about pay-scale and no other benefits were conferred. Considering the above, the petition deserves to be rejected. 4. Having heard the learned counsels for the parties and considering the rival submission and on perusal of the record, I am unable to persuade with the submissions made by the learned counsel for the petitioners in as much as while issuing Government Resolution dated 21.11.1998 the Department of Health and Family Welfare, Government of Gujarat, in fact, issued a corrigendum within a short time of 11 days and it cannot be said that the benefits granted to the petitioners by Government Resolution dated 13.11.1998 were taken away by the said Government Resolution. Even if Government Resolutions prior to 13.11.1998 are seen, they are all pertaining to providing financial assistance to non-government Homeopathic Medical Colleges in view of the instructions and recommendations received from the Government of India to strengthen and improve Homeopathic system of Indian Medicine as per the provisions made in 4th five year plan. Even if Government Resolutions prior to 13.11.1998 are seen, they are all pertaining to providing financial assistance to non-government Homeopathic Medical Colleges in view of the instructions and recommendations received from the Government of India to strengthen and improve Homeopathic system of Indian Medicine as per the provisions made in 4th five year plan. That, in terms of communication received from the Government of India, central assistance was to be sanctioned to the extent of 50% of grant-in-aid for non-recurring and recurring expenditure and rest of 50% was to be borne by the Government of Gujarat and, while extending certain benefits, no other benefits were conferred upon the employees of non-governmental Homeopathic grant-in-aid colleges. The subsequent Government Resolutions dated 8.9.1972, 8.1.1976, 24.12.1976 and 3.6.1988 all provided a mechanism for receiving and disbursement of grant and at the most the pay-scale and allowances were to be paid to the teaching and non-teaching employees of such colleges on par with the employees of the government and Ayurvedic colleges. The Government Resolution dated 13.11.1998 if perused again referred to revision of pay-scale of the employees of non-government grant-in-aid five Homeopathic Medical Colleges and, by Clauses 3 to 11, provision of payment of pension to employees who retired prior to 1.1.1996 an thereafter was made. At the same time, in clause 21 of the said Government Resolution, a reference was made to various other Government Resolutions issued by the Department of Finance, Government of Gujarat, and, therefore, the service conditions of the petitioners and other benefits were to be governed in terms of the above Government Resolution. Upon realizing the mistake, immediately within 11 days, a corrigendum was issued on 21.11.1998 by which certain clauses came to be deleted and reference to GPF made in various clauses was replaced by CPF. Thus, a conscious decision was taken by the respondent-Authority not to confer any retiral dues including pension upon the petitioners and that post retiral dues were to be fixed and paid in terms of CPF scheme. Thus, a conscious decision was taken by the respondent-Authority not to confer any retiral dues including pension upon the petitioners and that post retiral dues were to be fixed and paid in terms of CPF scheme. The above decision of the State Government taken in administrative exigency and public interest cannot be said or termed as unreasonable or arbitrary or violative of Article 14 of the Constitution of India in as much as the petitioners, employees of non-governmental private colleges receiving grant-in-aid only for payment of pay and other expenditure cannot be equated on par with the employees of the State government or even the employees of other governmental grant-in-aid colleges of different branches of medicines like Ayurvedic or Allopathy. The petitioners serving under one department of the State Government by itself is not sufficient to claim parity in the matter of retiral dues with the employees of different branches of medicine. For no purpose, the petitioners can be said to be a homogeneous group and be equated with the employees of other branch of medicine. So far as the service conditions of government employees are concerned, they are governed by the statutory rules framed under proviso to Article 309 of the Constitution of India and are protected by Article 311 of the Constitution of India in the matter of discipline and appeal rules being civil servants and some communication addressed by officer or director of one department of Government branding the petitioners as civil servants will not confer any benefits or right upon the petitioners. The claim of the petitioners is based on inherent inequality and they are different group of employees for which no specific rule was framed in exercise of powers by the competent authority, namely, Government of Gujarat, under any statute or even by issuing specific resolution. No case is made out to entertain the present petition. Hence, this petition is rejected. Rule is discharged. There shall be no order as to costs.