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Gujarat High Court · body

2015 DIGILAW 255 (GUJ)

PATEL INDIRABEN JORABHAI & 22 v. SHREE AYURVED VIKAS MANDAL & 2

2015-03-05

RAJESH H.SHUKLA

body2015
JUDGMENT : Rule. Service of rule is waived by learned advocate Shri DS Vasavada for opponent No.1 and learned AGP Ms. Vacha Desai for opponent No. 2. 2. The present Civil Application is filed by the applicants, original respondents Nos. 3-25 (employees) for the prayer that the respondents may be directed to pay salary for the month of December, 2014 and may be paid regularly and also to protect the service benefits of the applicants, on the grounds stated in the application. 3. The background of facts briefly summarized is as follows: 3.1 The aforesaid Special Civil Application No. 18548 of 2014 is filed by the petitioner-Trust, Shree Ayurved Vikas Mandal, Lodra for the prayres, inter alia, that the order passed by respondent No.2 Director of Indian System of Medicines and Homeopathy, Gandhinagar, dated 22.12.2013, at Annexure-O may be quashed and set aside and the respondent may be restrained from insisting for compliance of the conditions mentioned in the said order regarding payment of salary to the applicants in the Civil Application. The petitioner-Trust runs the ayurved college at Lodra imparting education. It is averred that as per the meeting held by the Principal Secretary in 2007 it was resolved that all the institutes may go for self-finance on the same line with J.S. Ayurvedic College, Nadiad. Therefore, the petitioner-Trust had applied for conversion of the college into self-financed college by making an application. Initially, that status was not granted which led to filing of the earlier petition being Special Civil Application No. 10319 of 2010. However, subsequently, the petitioner has been granted permission to run the college as self-financed college as per recommendations of the Director subject to the terms and conditions as stated, which is the bone of contention in the petition regarding the liability for payment of the salary of staff already employed in the college. 4. Heard learned advocate Shri Hriday Buch for the applicants, learned counsel Shri Shirish Joshi appearing with learned advocate Shri D.S. Vasavada for respondent No. 1 and learned AGP Ms. Vacha Desai for respondent No.2-State. 5. Learned advocate Shri Buch referred to the background of facts and submitted that the applicants are working in the college and the college is run and managed by opponent No.1-Trust, original petitioner. The institution is affiliated with Jamnagar Ayurvedic University since 1981 and were given 100% grant-in-aid by the State. Vacha Desai for respondent No.2-State. 5. Learned advocate Shri Buch referred to the background of facts and submitted that the applicants are working in the college and the college is run and managed by opponent No.1-Trust, original petitioner. The institution is affiliated with Jamnagar Ayurvedic University since 1981 and were given 100% grant-in-aid by the State. However, thereafter the same was permitted to be converted into a self-financed institution and after the direction of the High Court the college was converted into a self-financed college on various conditions. He submitted that one of the conditions is that the institution shall have to bear the administrative, financial and legal responsibility of the teaching and non-teaching staff in the set-up and shall have to pay the salary and perquisites as per the rules of the Government. Learned advocate Shri Buch submitted that as it was apprehended that the institution will not shoulder this burden and will not give the salary, a representation was made by the applicants for transferring the same to other grant-in-aid institutions run by the State. He referred to the said representation at Annexure-G dated 15.12.2014. He submitted that a communication was received from opponent No. 3 that the salary for the month of December 2014 shall not be paid by opponent No. 2 State as the college is no longer a grant-in-aid institution with effect from 4.12.2014. 6. Learned advocate Shri Buch, therefore, submitted that it is not in dispute that the applicants are employed by the college and till it was converted into a self-financed college, 100% grant was admissible by the government and therefore either they may be accommodated in other government colleges or the salary may be paid to the applicants either by the college run by the Trust or by the government and they may not be made to suffer. He emphasised that for the change in the situation the applicants are deprived of their salary and they are finding it difficult to maintain themselves. Therefore, the present application is filed. He has also referred to the papers and submitted that in case of other institutions the staff has been accommodated in other government colleges. He emphasised that for the change in the situation the applicants are deprived of their salary and they are finding it difficult to maintain themselves. Therefore, the present application is filed. He has also referred to the papers and submitted that in case of other institutions the staff has been accommodated in other government colleges. He submitted that the applicants are constrained to file the present application as, on one hand, opponent No. 1 has come out with an advertisement in daily newspapers inviting applications for the posts of Professors/Readers/Lecturers and on the other hand salary is not paid to them and therefore appropriate order may be passed protecting their salary as well as the service conditions. 7. Learned AGP Ms. Vacha Desai referred to the papers and submitted that the liability for payment of salary of the staff of the college run by the petitioner-Trust cannot be foisted upon the government. She submitted that on one hand opponent No.1 original petitioner-Trust desired the status of self-finance college and on the other they do not want to accept the obligation towards the staff regarding payment of salary and absorption of such staff. She submitted that the reference to other cases or past litigation has no relevance for the purpose of the present application. She has also tried to reflect about the conduct of the original petitioner-Trust and submitted that on one hand they have given advertisement for fresh recruitment and on the other hand they do not want to take responsibility of the existing staff which is not permissible. She submitted that at the time of granting the status as self-finance college pursuant to the order dated 4.12.2014 at Annexure-N, the terms and conditions were very much clear as stated in the Schedule. She pointedly referred to the Schedule and submitted that it was accepted and understood that after the college is permitted the status of self-finance college no financial aid or grant shall be paid. Further, it was made clear that the college will be liable for payment of salary of the employees. She submitted that at the same time it was also permitted that the college may charge the fees or decide the fee structure as per the R.J. Shah Committee report. Learned AGP Ms. Further, it was made clear that the college will be liable for payment of salary of the employees. She submitted that at the same time it was also permitted that the college may charge the fees or decide the fee structure as per the R.J. Shah Committee report. Learned AGP Ms. Desai submitted that admittedly since 2010-2011 the students are not there and still the grant was received and therefore once the college which was run by opponent No.1 Trust with the status of self-finance college was granted permission subject to the terms and conditions including the obligations which has been accepted, it cannot approbate and reprobate that it would like to enjoy the status of self-financed college but would decline to take any responsibility for the staff which has already been employed in the college. 8. Per contra, learned counsel Shri Shirish Joshi appearing with learned advocate Shri Vasavada for opponent No.1 original petitioner referred to the background of facts and submitted that the conduct of the State is also required to be considered. For that purpose, he referred to the papers and the orders passed by the High Court including the order passed in Special Civil Application No. 10770 of 2014 dated 14.8.2014 at Annexure-A (Coram: Harsha Devani, J.) and also the order passed in Letters Patent Appeal No. 1131 of 2014 in Special Civil Application No. 10770 of 2014 dated 18.11.2014 and submitted that for various reasons including political mala fides opponent No. 1 petitioner is not treated on the same footing like other colleges which have also been given permission for converting into self-finance colleges without any such conditions imposing liability of the staff. He tried to submit that even according to the order dated 4.12.2014 at Annexure-F in the Civil Application the permission is granted from the academic year 20115-2016 and therefore the college could give admission to the students and charge the fees thereafter. He submitted that as it is now a self-finance college it has to generate its own funds and they would be able to get fees and generate funds from the academic year 2015-2016 which may start after June 2015. He therefore submitted that during the interregnum period they cannot be saddled with the liability. 9. He submitted that as it is now a self-finance college it has to generate its own funds and they would be able to get fees and generate funds from the academic year 2015-2016 which may start after June 2015. He therefore submitted that during the interregnum period they cannot be saddled with the liability. 9. Learned counsel Shri Joshi submitted that in any case, admittedly, it was a grant-in-aid college covered under the direct payment system and the government was making payment of the salary which it must continue. He emphasised that merely because the order dated 4.12.2014 at Annexure-F is granted it may not be considered as a date for the purpose of discontinuation of the aid and the respondent government must continue to pay at least till the next academic year. Learned counsel Shri Joshi also submitted that the employees are covered under the direct payment system and therefore it will have to be considered whether they can be said to be employees of opponent No.1 Trust or the college run by the Trust who had the control over such staff. He submitted that as a self-finance college they have the freedom to engage the staff and if the staff which is already existing is continued it would be additional burden. Learned counsel Shri Joshi tried to submit that they are required to engage staff to meet with the norms so that qualified staff to maintain the standard of education is engaged and on the other hand if the staff which is already existing may have to be continued it will add to the liability of opponent No.1 Trust. He submitted that it is only out of mala fide that the status of self-finance was given pursuant to the order passed by the High Court. The respondent has tried to insert such conditions and thereby trying to saddle opponent No.1 Trust with the liability for payment of salary of the staff. He also referred to the affidavit-in-reply with all details to support the contentions. He submitted that for a newly set up self-finance college where no objection certificate is issued such condition is not imposed as it is found in the order dated 4.12.2014 and therefore it offends Art. 14 of the Constitution. 10. He also referred to the affidavit-in-reply with all details to support the contentions. He submitted that for a newly set up self-finance college where no objection certificate is issued such condition is not imposed as it is found in the order dated 4.12.2014 and therefore it offends Art. 14 of the Constitution. 10. In view of these rival submissions, it is required to be considered whether the Civil Application requires consideration pending hearing of the main matter with regard to payment of salary to the existing staff who are the applicants in this civil application. 11. It is not in dispute that the staff has been engaged in the college run by opponent No.1 Trust for many years. The status of self-finance is claimed by the college of opponent No. 1 Trust which suggests that opponent No. l desires to run the college as a self-finance college. In fact, litigation was pursued to get such status of self-finance which in turn would give more freedom to the college run by opponent No.1 Trust. Therefore, the moot question is, the staff engaged in the college run by opponent No.1 Trust should be paid the salary by whom, that is, whether the government should continue to pay even after the status of the college has changed, or opponent No.1 should make arrangement for payment of the salary of the staff. 12. The contentions which have been raised referring to the direct payment system, method of recruitment and the aspect of control that opponent No.1 has no control and they cannot be treated as employees of opponent No.1 Trust is thoroughly misconceived inasmuch as the employees are engaged and are working in the college run by opponent No.1 Trust. The aspect of direct payment because of the grant-in-aid has a reference to the grant and the system of payment and it does not make the employees engaged in the college run by opponent No.1 Trust as government employees. Further, though the government may in some cases have made efforts to accommodate such staff in other government run colleges, but it does not necessarily invite the criticism of Art. 14 merely because the staff of the college run by opponent No.1 is not accommodated in other government run colleges. Further, though the government may in some cases have made efforts to accommodate such staff in other government run colleges, but it does not necessarily invite the criticism of Art. 14 merely because the staff of the college run by opponent No.1 is not accommodated in other government run colleges. It is required to be mentioned that as far as possible if there are vacancies then subject to such vacancies the government may accommodate, but it does not cast any obligation to accommodate such staff particularly when the college run by opponent No.1 Trust on its own has claimed the status of self-finance college which has been granted and permitted subject to the terms and conditions. The said terms and conditions granting the status of self-finance college has been accepted and now opponent No.1 original petitioner Trust cannot make any grievance in order to wriggle out of its own obligations. 13. As rightly contended, on one hand, the college run by opponent No.1 Trust wants the status of self-finance college with liberty to have its own say including the fee structure and on the other it does not want to continue the staff which has already been engaged in the college. Had there been any objection, then the original petitioner should have raised the objection granting such permission to convert itself into a self-financed college that such terms and conditions are not acceptable or they do not desire to convert itself into self-finance college. One cannot take only the advantages of the status of self-finance college without accepting the corresponding obligations. It is well-accepted that the permission is subject to such terms and conditions which have been accepted and if it is not acceptable opponent No.1 may not go for the status of self-finance college which is entirely left to its discretion. Further, in order to run the college of opponent No.1 original petitioner the government cannot be made to pay the salary of the staff engaged for the purpose of the college run by opponent No.1 Trust. 14. Further, in order to run the college of opponent No.1 original petitioner the government cannot be made to pay the salary of the staff engaged for the purpose of the college run by opponent No.1 Trust. 14. The submission made by learned counsel Shri Joshi that it can raise the finance or the resources from the academic year 2015-16 and during the interregnum period they may not be saddled with the liability and the government continue to pay the salary till the new academic year starts when opponent No.1 can start getting the fees on admission is also misconceived. The order dated 4.12.2014 is very clear when clause (2) of the schedule clearly mentions about this obligation that from the date of the order granting the status of self-finance college the college will have to bear such responsibility. It is clearly stated that from the date the permission of converting the college into a self-finance college is granted all such responsibility and the liability shall be of the college run by opponent No. 1 Trust. Therefore, it leaves no doubt as to the date from which opponent No.1 would be liable. The submission that during the interregnum period they may not have the finance is too difficult to digest that, on one hand. You want permission to run the college as self-finance college and on the other it is not able to manage even for payment of salary during the interregnum period. In fact, if one wants to have self-finance college it would be obligatory to have necessary resources managed with infrastructure for some time and therefore such contentions are without any merit. 15. The reference to the observations made by the Bench in the earlier round of litigation could be considered at the time of final hearing of the main petition and therefore as the issue confined in the present civil application is only with regard to the aspect payment of salary to the applicants who are the staff engaged in the ayurvedic college run by opponent No.1 Trust, it hardly leaves any doubt that it is the liability of opponent No.1 to manage the resources and continue to make the payment as the order dated 4.12.2014 granting permission to convert the college into self-finance college with the schedule regarding the terms and conditions is very clear. 16. 16. Another facet of the submission with regard to discrimination that other colleges are granted such permission and no condition is imposed is also misconceived. In fact, the example of J.S. Ayurvedic Mahavidyalaya is cited which requires a close scrutiny and it could be considered at the time of final hearing along with other such colleges also where permission to convert into self-finance is granted. Therefore, it may not be a matter of right under Art. 14, still, it can be a matter of propriety that when such an institute is converted into self-finance college with more autonomy, then, as far as possible the staff may be accommodated or adjusted in other government run colleges to avoid any heart-burning and protecting the interests of the staff who are working with the concerned college like opponent No.1 herein. However, again, it has to be subject to availability of vacancies with the government run or aided ayurvedic colleges and one cannot therefore claim as of right as the situation prevailing in a particular year, for example the year 2007 when the staff of J.S. Ayurvedic Mahavidyalaya would have been accommodated, the same situation would be prevailing now and therefore the submissions with regard to Art. 14 and discrimination are without any justification. In fact, as it transpires, even though opponent No.1 college had no students it could run for 3-4 years and still they want to have the college as self-finance and autonomous college itself suggests that opponent No.1 desires to run the college without corresponding obligations. It cannot also be disputed that the staff employed by opponent No.1 college is the staff of the college and merely because 100% grant is paid by the government it does not ipso facto become the employees of the government. However, it can be considered with further details at the time of final hearing of the main matter. 17. It is required to be mentioned that it may not be identical but an analogy could be considered that when a company or a running concern is taken over, the labour or interest of the labour is protected and the new management is obliged to continue the labour as it requires trained labour. 17. It is required to be mentioned that it may not be identical but an analogy could be considered that when a company or a running concern is taken over, the labour or interest of the labour is protected and the new management is obliged to continue the labour as it requires trained labour. In the same way, trained staff would also be required by the college run by opponent No. 1 which is the existing staff available to them and therefore there should not be any difficulty. The aspect of compliance with the norms or qualification as per the norms could be considered at the time of final hearing, particularly when they desire to make fresh recruitment the existing staff should be accommodated by opponent No. 1. 18. Therefore, the present Civil Application seeking directions for payment of salary deserves to be granted. However, prayer in para 17(A) is not clear as to the payment should come from which opponent. Therefore, as observed hereinabove, opponent No.1 is directed to make the payment of salary for the month of December 2014 forthwith within a period of 15 days and shall continue to pay regularly the monthly salary to the applicants. If there is any default it would be open for the applicants to take appropriate measures as may be advised. It is however clarified that it is without prejudice to the rights and contentions of opponent No.1. 19. With the aforesaid observations and directions, the present Civil Application stands allowed to the aforesaid extent. Rule is made absolute. FURTHER ORDER After the order was pronounced, learned counsel Shri Joshi appearing with learned advocate Shri Vasavada has requested for stay of the operation of the ordered for two weeks, which is opposed by learned advocate Shri Hriday Buch. In the circumstances, interest of justice would be served if the operation of the order is stayed for a period of one week to enable opponent No.1 to approach the higher forum.