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2016 DIGILAW 1443 (GUJ)

Sunil John Macwan v. State of Gujarat

2016-07-22

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants serving as Teachers in the Non-Government Grant-in-Aid Schools, have prayed for the following reliefs: "A. Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction holding and declaring that the impugned order and circulatory letter dated 12.6.2001 at Annexure 'A' is violative of Articles 14 and 16 of the Constitution of India and is also misconceived, contrary to the provisions of the scheme of modified higher pay scale applicable to the Petitioners, arbitrary, discriminatory and illegal as well as without jurisdiction and authority in law and void. B. Your Lordships may also be pleased to hold and declare that the action on the part of Respondent Nos. 1 to 4 of not considering the Petitioners eligible and entitled for the higher post of Education Inspector in the present scale of Rs. 5000-8000, is illegal, unjustifiable, arbitrary and bad in law. C. Pending hearing and final disposal of the present petition, Your Lordships may be pleased to grant stay against the implementation and execution of the impugned order and circulatory letter dated 12.6.2001 (Annexure 'A') passed by District Assistant Inspector, Local Fund Accounts, Nadiad, Respondent No. 5 hereto. D. Ex-parte ad-interim relief in terms of para 'C' above may kindly be granted. E. Any other and further relief/s as may be deemed just and proper in the facts and circumstances of present case may kindly be granted." 2. The case of the writ-applicants may be summarised as under: 3. The writ-applicants were all appointed as Teachers in the Non-Government Grant-in-Aid Primary Schools. They were all given the pay-scale of Rs. 5000-8000. This pay-scale was given to them on the strength of a clarificatory circular issued by the Director of Primary Schools, Gujarat State, Gandhinagar, dated 29th September 1998, that the Teachers of the private primary schools (grant-in-aid) were entitled to receive the higher scale of Rs. 5000-8000, i.e. the scale of Educational Inspector on completion of 9 years of service. For a period of about two years, they received the said pay-scale. 5000-8000, i.e. the scale of Educational Inspector on completion of 9 years of service. For a period of about two years, they received the said pay-scale. All of a sudden, on 12th June 2001, the District Assistant Inspector, Local Fund Accounts, Nadiad, issued an order that the Teachers including the writ-applicants herein of the private primary schools (grant-in-aid) were not eligible for the higher scale of Rs. 5000-8000 and that they should be placed in the scale of Rs. 4000-7000 with effect from 1.1.1996 and recovery of the amount paid in excess be recovered from the Teachers. Hence, this writ-application. 4. On 3rd July 2003, the following order was passed: "Heard learned advocate Mr. Kirit. J. Macwan for Petitioners; Mr. P.D. Bhate, AGP for Respondent No. 1-2 and No. 5; Mr. R.A. Mishra for Respondent No. 3; Mr. H.S. Munshaw for Respondent No. 4. Rest of the respondents have been served but no appearance has been filed by any of the head master or the school authority before this Court. In the present petition, the petitioner has challenged the order passed by respondent No. 5 dated 12th June, 2001 which is at Annexure-A. I have considered the submissions made by the learned advocates for the parties. I am of the view that the questions raised in this petition would require detailed examination. Hence. Rule. Interim Relief in terms of para 12(C) during the pendency and final disposal of this petition. Learned advocate Mr. R.A. Mishra appearing for respondent No. 3 has waived service of notice on behalf of respondent No. 3. Learned advocate Mr. H.S. Munshaw appearing for the respondent No. 4 has waived service of rule on behalf of respondent No. 4. Learned AGP Mr. Bhate appearing for the respondent No. 1, 2 and 5 has waived service of rule on behalf of respondent No. 1 and 2 alone. Therefore, rest of the respondents including respondent No. 5 are required to be served with the notice of rule." 5. None present on behalf of the writ-applicants. I have heard Mr. Swapneshwar Goutam, the learned AGP appearing for the State respondent, Mr. R.A. Mishra, the learned counsel appearing for the respondent No. 3, and Mr. H.S. Munshaw, the learned counsel appearing for the respondent No. 4. 6. None present on behalf of the writ-applicants. I have heard Mr. Swapneshwar Goutam, the learned AGP appearing for the State respondent, Mr. R.A. Mishra, the learned counsel appearing for the respondent No. 3, and Mr. H.S. Munshaw, the learned counsel appearing for the respondent No. 4. 6. On behalf of the respondent No. 5, an affidavit-in-reply has been filed, inter alia, stating as under: "8(2) It is submitted that any payment received which is not as per order/rule of Government cannot be claimed as a matter of right. The overpaid amount has not been ordered to recover with interest or penalty. Only the principal amount has been suggested to recover so that the case can be timely regularized. The amount overpaid is not to be recovered in single installment. It is to be recovered in proper installments from the monthly salary of the petitioners. It cannot be construed as penalty or financial loss. It is the matter of regularization of the case according to rule/order of Government. 8(3) It is submitted that the petitioners are very well aware of the provision of para No. 3(2) and 3(12) of G.R. dated 16.8.1994 Annexure B to the petition. This provision in G.R. has not been inserted after issuance of the said G.R. The provision was already there in the G.R. Only its proper implementation has been insisted. It is humbly further submitted that in a quite similar case of Special Civil Application No. 5037/2000 : Shri Ajitsinh Laxmansinh Solanki v. Administrative Officer, Municipal School Board, Nadiad, this Hon. High Court has given oral judgment dated 27.9.2000 (Coram : Mr. Justice S.K. Keshote). In para No. 3 of this judgment, this Hon. High Court has quashed and set aside the order dated 8.5.2000 of Administrative Officer, Municipal School Board, Nadiad, in which the first higher grade of Rs. 4500-7000 was sanctioned by canceling previously sanctioned higher grade of Rs. 5000-8000 and recovery of over paid amount had been ordered to effect. The para No. 3 of this judgment has been reproduced here under: "3. In the result, this special civil application succeeds and the same is allowed and the order dated 8-5-2000 is quashed and set aside. The respondents are free to pass fresh order after giving opportunity of hearing to the petitioner in accordance with law. Rule is made absolute accordingly. In the result, this special civil application succeeds and the same is allowed and the order dated 8-5-2000 is quashed and set aside. The respondents are free to pass fresh order after giving opportunity of hearing to the petitioner in accordance with law. Rule is made absolute accordingly. No order as to costs." A copy of this judgment dated 27-9-2000 is annexed with this affidavit-in-reply and marked as ANNEXURE No. II. 8(4) It is submitted that the petitioners have adopted triple standard. On one side the petitioners want benefit under G.R. dated l6.8.1994, on the second side they do not want to follow the condition/provision of the same G.R. and on the third side the petitioners claim as matter of right the benefits which they have received against the provision of the G.R. dated 16.8.1994. 8(5) It is submitted that prima facie, the claim of petitioners seems to be only for pay. But it is not so. In fact the claim is not limited only to basic pay of teachers. Besides pay, the Government also has to make recurring payment per month in form of grant to these schools for dearness allowance, house rent allowance etc. on the basis of basic pay during the service of the teachers. Not only that, after retirement also, the Government has to make huge recurring payment towards pensionary benefits to the teachers of Non-Government primary schools. And the pension is also based on basic pay, i.e. 50% of the pensionable pay. Thus, the claim of petitioners is for both; for higher pay scale and also for pensionary benefits which are admissible to the primary teachers working under District Panchayats, who are considered Government servants and who are entitled for higher grade as per provision of the G.R. dated 16.8.1994. 8(6) It is submitted that the Government has to consider carefully all aspects while making decision/G.R. involving huge recurring expenditure, such as financial position of the state, financial recurring burden to be shouldered, number of beneficiaries etc. It is submitted that as narrated in the preamble in para No. 3 of G.R. dated 16.8.1994 (Annexure B to the petition) having been considered all relevant aspects carefully the Government has revised Ab-Initio the scheme of higher grade by making necessary provisions. It is submitted that as narrated in the preamble in para No. 3 of G.R. dated 16.8.1994 (Annexure B to the petition) having been considered all relevant aspects carefully the Government has revised Ab-Initio the scheme of higher grade by making necessary provisions. 8(7) It is submitted that the petitioners are entitled to benefits for higher grade under this G.R. and all the benefits according to provision of the said G.R. have been given to them. The petitioners have not been deprived of any benefit/right which is admissible under the said G.R. The benefits, which are not permissible under the rule, cannot be claimed as matter of right. 8(8) It is submitted that the petitioners have not been placed in lower pay scale. The higher pay scale for which they are entitled under the provision of rule have been given. Thus, the question of financial loss does not arise. It is submitted that had the scheme of higher grade not been made applicable to the teachers of Non Government schools, the petitioners would have retired in the pay scale of primary teacher Rs. 4000-6000 without any benefit under G.R. dated 16.8.1994. Instead which they are enjoying benefit under G.R. dated 16.8.1994. This is considerable financial benefit to the petitioners. 9. In respect of para No. 8 of the petition it is humbly submitted that the petitioners are not state Government servant under provision of any act. The Government has given possible benefit to these petitioners as explained in para No. 8 of this affidavit in reply. Having been considered all relevant aspects carefully the Ab-Initio Revised Higher Grade Scheme has been introduced vide G.R. dated 16.8.1994. The benefit under the scheme can be given as per provision of the rule. That which has not been provided in the rule cannot be claimed as matter of right and hence the question of breach of constitutional right does not arise. The contention regarding discrimination is not acceptable. 10. With reference to para No. 9 of the petition it is submitted that as explained earlier the Government has issued G.R. dated 16.8.1994 having been considered all relevant aspects carefully and Ab-Initio revised the scheme of higher grade. The petitioners have been given benefits admissible under provision of rule. The petitioners cannot claim benefit which is not admissible under rule, as a matter of right. The petitioners have been given benefits admissible under provision of rule. The petitioners cannot claim benefit which is not admissible under rule, as a matter of right. The claim of petitioners is not as per rule, just, fair, proper and legal because: (i) That the letter dated 12.6.2001 issued by my office Annexure A to the petition, is very well within the jurisdiction, as per Government rule, proper, just, fair, rational and legal as explained in para No. 7 and 8(1) of this affidavit in reply. (ii) That the letter issued by my office is as per instruction issued from the Directorate of Primary Education, Gandhinagar, which is based on instruction of the Government in accordance with the provision of the rule and hence the letter is not arbitrary nor question of misinterpretation is there. (iii) That the amount received for which the petitioners are not entitled as per rule, cannot claim as matter of right. Hence there is no question of financial loss as explained in para No. 8 of this affidavit in reply. (iv) That question of violation of principle of natural justice is not there. As explained in para No. 7 and 8(3) of this affidavit in reply the provision in G.R. dated 16.8.1994 Annexure B to the petition has not been inserted after the issuance of this G.R. The provision in G.R. dated 16.8.1994 is from very beginning. The petitioners themselves are teachers and not a layman. They are fully aware of the provision. (v) That the question of doctrine of equal pay for equal work does not arise. The pay scale of primary teachers in District Panchayat and in Non Government primary schools are already equal. Here the question is for promotional pay scale, i.e. opportunity of promotion without there being sanctioned post in their set up. Although the benefits of higher pay scale of Rs. 4500-7000 prescribed in Annexure 1 of G.R. dated 16.8.1994 have already been given. The claim is for higher pay scale of Rs. 5000-8000 which is prescribed for the sanctioned promotional post of Education Inspector in District Panchayats. Since the position is different, as explained in para No. 7 of this affidavit in reply, question of equal benefit does not arise. (vi) That the question of creating class within class or discrimination does not arise. 5000-8000 which is prescribed for the sanctioned promotional post of Education Inspector in District Panchayats. Since the position is different, as explained in para No. 7 of this affidavit in reply, question of equal benefit does not arise. (vi) That the question of creating class within class or discrimination does not arise. As explained in para No. 7 and 8 (5 to 9) of this affidavit in reply different position deserves different provision. The Government has given possible benefits to the teachers of Non Government primary schools. (vii) That there is no question of taking away right of the petitioners. Because, as explained in para No. 8 of this affidavit in reply, the petitioners have already been given benefits admissible under G.R. dated 16.8.1994. They have not been deprived of their benefits or right for which they are entitled under provision of rule. (viii) That the instructions issued from the Directorate of Primary Education, Gandhinagar, is uniform in the state. Copy of that letter dated 1.5.2001 has been sent to all administrative officers for necessary action. (ix) That as explained in para No. 8 of this affidavit in reply, the amount received for which one is not entitled as per provision of rule can not be claimed as a matter of right. The petitioners want to adopt triple standards which naturally can not be accepted. (x) That the matter is explained in detail in para No. 8 of this affidavit in reply, the petitioners have not been placed in lower scale than they are entitled as per rule. Only the question is of regularization of the case as per provision of GR. Dated 16.8.1994." 7. Thus, the stance of the respondent No. 5 is that the writ-applicants are not entitled to the pay-scale of Rs. 5000-8000, the scale which is being provided to the Educational Inspector on completion of 9 years of service. 8. It appears that the impugned order was passed without giving any opportunity of hearing to the writ-applicants. If a particular pay-scale was offered to the writ-applicants and they started receiving the same, then later on if that scale had to be withdrawn and that too after a period of more than two years, then it was expected of the concerned authority to have issued notice, given opportunity of hearing to the writ-applicants and then pass the impugned orders. 9. 9. It appears that straightway without giving any opportunity, the impugned order came to be passed. On this ground alone the impugned order dated 12th June 2001 is hereby quashed. It shall be open for the respondent Nos. 3, 4 and 5 to issue notice to the writ-applicants, give them an opportunity of hearing in this regard and then pass appropriate orders in accordance with law. 10. I also take notice of the fact that this writ-application was admitted way back on 3rd July 2003 and interim relief has also continued till this date. This is suggestive of the fact that the writ-applicants, as on date, are receiving the pay-scale of Rs. 5000-8000, which must have been revised over a period of time. Till fresh decision is taken, this interim relief shall continue. Rule made absolute.