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2024 DIGILAW 1051 (GUJ)

Patel Dakshaben Gulabbhai v. State Of Gujarat

2024-04-29

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. Since common issue is involved in the captioned writ petitions, the same are heard analogously and are being decided by this common judgment. 2. The present petitions are filed under Article 226 of the Constitution of India by the respective petitioners against the ex-facie illegal and arbitrary action of respondent Nos.4 and 5 in not approving the benefit of Higher Pay Scales to the petitioners by considering the entire service rendered by the petitioners including the service rendered in Ashramshala prior to their absorption/lien in the District Education Committee, though in cases of exactly similarly situated 9 (Nine) other teachers, the respondent Nos.4 and 5 have already approved such benefit. 3. The brief facts leading to the present petitions in nutshell are that, the petitioners were duly appointed as primary teachers in Ashramshalas of Valsad district in 1990. Though the petitioners were entitled to be absorbed in the District Education Committee as per the Government policy, they were illegally denied such benefit. The petitioners, therefore, preferred Special Civil Applications before this Court. Consequently, the State Government granted the benefit of absorption/lien to the petitioners by order dated 18.04.2006 and the respondent No.3 accordingly, passed the order of absorption/lien dated 29.07.2006. The respondent No.3, thereafter, passed orders granting the benefit of Higher Pay-scales and also for joining the service rendered by the petitioners in Ashramshalas for the purposes of pension, leave and pay and allowances. However, the respondent No.4 had declined to approve the Higher Pay-scales sanctioned to the petitioners by the respondent No.3 by stating in his letter that the service rendered by the petitioners in Ashramshalas from 1990 to 2000 and 1990 to 2003 respectively, cannot be counted for the purpose of the said benefit. That, the respondent Nos.4 and 5 have remained adamant on their such illegal stand despite repeated representations made to them by the petitioners. 4. Being aggrieved and dissatisfied by the impugned action on the part of the respondent authorities, the petitioners have preferred these writ petitions under Article 226 of the Constitution of India. 5. Heard learned advocate Mr.K.B. Pujara, appearing on behalf of the petitioners, learned Assistant Government Pleader Ms.Megha Chittaliya, appearing on behalf of the respondent – State Authorities and learned advocate Mr.Rutvij Bhatt, appearing on behalf of the respondent No.3. 5. Heard learned advocate Mr.K.B. Pujara, appearing on behalf of the petitioners, learned Assistant Government Pleader Ms.Megha Chittaliya, appearing on behalf of the respondent – State Authorities and learned advocate Mr.Rutvij Bhatt, appearing on behalf of the respondent No.3. 5.1 Learned advocate Mr.Pujara, appearing for the petitioners, has tendered today Further Affidavit-in-Rejoinder dated 20.03.2024 filed on behalf of the petitioners, the same is taken on record. 6. Learned advocate Mr.Pujara has submitted that there is no provision in law that the service rendered in Ashramshalas shall not be counted for the purpose of benefit of Higher Pay Scale. He has submitted that in case of other similarly situated teachers, the respondent authorities have extended the benefits of Higher Pay Scale and when it is put to the notice of the respondent authorities, they have taken a stand that by mistake the benefits have been extended in favour of other teachers who were serving in Ashramshalas. He has further submitted that the petitioners have been granted absorption/lien in the District Education Committee w.e.f. 13.08.2000 and 15.01.2003 respectively by order dated 29.07.2006, however, at the time of granting the benefit of Higher Pay Scales sanctioned to the petitioners by the respondent No.3, the respondent No.4 declined to approve the same on the ground that the service rendered by the petitioners in Ashramshalas cannot be counted for the purpose of Higher Pay Scale. 6.1 Learned advocate Mr.Pujara has submitted that the respondent authorities have granted the benefit of lien to 6 (six) Ashramshala Teachers of Valsad District by order of the Director of Primary Education dated 19.01.2013 and by the order of the District Primary Education Officer, Valsad dated 07.02.2013, wherein, it has been clearly stated that the lien is granted with effect from their initial date of appointment in the Ashramshala and the entire service shall be treated as continuous with effect from the original date of appointment for the purposes of Pay fixations, and therefore, the respondent No.4 cannot contend that the petitioners cannot be granted the higher pay-scale by considering their entire service from initial appointment in Ashramshalas, thereby giving discriminatory treatment to the petitioners. Referring to the G.R. dated 23.08.1973, learned advocate Mr.Pujara has submitted that as per the G.R. dated 23.08.1973, the services of the teachers of Ashramshalas who are absorbed in the District Education Committee count fully in the services of the District Education Committee from the date of selection by the Staff Selection Committee of the respective District Panchayat and therefore, once the teacher of Ashramshala is absorbed in the District Education Committee, there cannot be any discrimination in the pay-scales and Higher Pay-scales of the teachers who have come from Ashramshalas and who are in District Education Committee from the beginning. Therefore, the petitioners are entitled to the first Higher Pay-scale of Rs.5000-8000 and the second Higher Pay-scale of Rs.9300- 34800 Grade Pay-4400 at par with all other teachers of the District Education Committee. 6.2 Learned advocate Mr.Pujara has referred to the affidavit- in-rejoinder filed on behalf of the petitioners and submitted that identical issue has been decided by this Court in Special Civil Application No.11651 of 2004 with Special Civil Application No.13746 of 2005, which was subsequently confirmed in Letters Patent Appeal No.332 of 2007 preferred by the petitioners, wherein, the Division Bench of this Court has held that the staff of Ashramshalas are entitled for all the benefits of the Government Resolution dated 21.01.1986 as are being given to the staff of primary schools run by the District Panchayat Education Committees. Against the said decision, the respondents have approached the Hon’ble Supreme Court by way of preferring Special Leave Petition (Civil) Nos.168-171 of 2015, which came to be dismissed by the Hon’ble Supreme Court vide order dated 12.01.2015. He has therefore, submitted that the issue is now already covered and it is no more res integra and therefore, the petitioners are entitled to get similar benefits which are extended to the teachers who are working in the District Education Committee for all purpose from the date of their absorption and they are also entitled for the Higher Pay-scales at par with all other teachers of the District Education Committee and urged that the present petitions be allowed and the respondents be directed to grant the Higher Pay-scales to the petitioners at par with the Higher Pay-scales granted to other teachers of the District Education Committee. 7. 7. As against that, the learned AGP Ms.Chittaliya appearing on behalf of the respondent – State Authorities, has opposed the present petition and submitted that since the petitioners are originally appointed in Ashramshalas their services cannot be considered for granting the benefits of higher pay-scales which is applied in case of teachers who are appointed in the District Education Committee. Referring to the affidavit-in-reply filed on behalf of the respondent No.4, more particularly paragraphs 7, 8 and 9, learned AGP Ms.Chittaliya has submitted that as per the Government Resolution dated 23.08.1973 issued by the respondent authority, the petitioners were granted benefits of lien with respect to the services rendered by them with Ashramshalas. She has emphasized upon the Government Resolution dated 14.02.2005, more particularly clause 7, and reiterated that the petitioners are not entitled to get the benefits as prayed for in the petition. 7.1 Learned AGP Ms.Chittaliya has submitted that after issuing the Government Resolution of Tribal Development Department dated 24.06.2015 which states that the service of the Ashramshala is considered for the higher pay-scale similar to teachers of Grant-in-Aid School. She has further submitted that the petitioners were appointed in the year 1990 in the pay-scale of Rs.4000-6000 and they were due for their higher pay-scale in 1999 in the pay-scale of Rs.4500-7000 and the above mentioned entire period of 9 years, the petitioners have served in Ashramshala and thereafter, they were absorbed in District Panchayat School and therefore also, the petitioners are not entitled to get the benefits as claimed in the present petition. She has submitted that as per the letter dated 11.02.2021 by the Education Department which clarifies that the teachers who are absorbed from Ashramshalas to District Panchayat Schools will be eligible for the benefits of pay-scale of District Panchayat School teachers from the date of selection by Staff Selection Committee of the respective District Education Committee. She has therefore, submitted that so far as the First Higher Pay-scale is concerned, the same is extended to the petitioners by the respondent authorities from the date on which they have been absorbed in the District Education Committee but so far as the Second Higher Pay- scale is concerned, she has strongly objected the present petition by way of the affidavits filed on behalf of the respondent authorities and urged that the present petitions be dismissed. 8. 8. Learned advocate Mr.Rutvij Bhatt, appearing on behalf of the respondent No.3 has accepted the prayers made by the petitioners so far as granting of absorption/lien is concerned. But so far as the extended benefits of higher pay-scale is concerned, because of the objection raised by the respondent No.4, the respondent No.3 is unable to extend the benefits in favour of the present petitioners and this is how the petition stands. 9. I have heard the learned advocates appearing for the respective parties and considered the facts of the present case and considered the submissions made on behalf of all the concerned parties and considered the affidavits filed by both the sides at different stages of the petition. It appears that though the issue is considered by this Court in Special Civil Application No.11651 of 2004 with Special Civil Application No.13746 of 2005, now the issue involved in the present petition is also decided by the Co-ordinate Bench observing that the petitioners are entitled to the similar benefits which are extended to the teachers who are appointed by the District Education Committee and also considered the G.R. dated 21.01.1986 and granted all the benefits by way of observing in paragraphs 10 to 14 of the said judgment and after considering all the facts, allowed the petition by observing in paragraph 22 as under : “22. In view of the above observations and discussions, the action of the respondent authorities of denying to the teaching staff of Ashram Shalas vide Resolution dated 16.8.1994 is declared as discretionary and unconstitutional. It is further directed that the teaching staff of Ashram Shalas would be entitled to the benefits of the Government Resolution dated 16.8.1994 at par with the teaching staff of private Primate School. It is further directed that the teaching staff of Ashram Shalas would be entitled to the benefits of the Government Resolution dated 16.8.1994 at par with the teaching staff of private Primate School. Consequently the respective cases shall be considered by the competent authority in view of the Government Resolution dated 16.8.1994 and the benefit as per the Government Resolution dated 16.8.1994, if any, shall be considered for disbursement within a period of six months from the date of receipt of the order of this Court.” 9.1 It is pertinent to note herein that the above decision of this Court came to be challenged further by way of preferring Letters Patent Appeals, whereby the Division Bench of this Court had dismissed the appeal filed by the State and allowed the appeal filed by the original petitioners and confirmed the order passed by the learned Single Judge by observing in paragraphs 6 onwards. Finally, the said decision was carried further upto the Supreme Court by way of preferring SLP, which also came to be dismissed by the Hon’ble Supreme Court and therefore, now the issue is already decided and the same is approved by the Division Bench and confirmed by the Hon’ble Supreme Court. Considering all these aspects and considering the decision of this Court as well as the Hon’ble Supreme Court and considering various G.R.s produced on record, I am of the opinion that the present petitions deserve to be allowed and the petitioners are entitled to all the benefits at par with other teachers who are appointed in the District Education Committee. 10. Accordingly, the present petitions are partly allowed. The respondent No.4 is hereby directed to extend the benefits in favour of the present petitioners from the date of their absorption at par with teachers who are appointed and serving in the District Education Committee with all consequential benefits and the same is to be paid to the present petitioners within a period of 6 months from the date of receipt of order of this Court. The amount which is already paid to the petitioners by the respondent No.3 is to be deducted from the final amount due and payable to the petitioners. Rule is made absolute to the aforesaid extent. Direct service is permitted.