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2024 DIGILAW 1748 (GUJ)

Rajesh Ganpatrao Shinde v. State Of Gujarat

2024-08-21

VAIBHAVI D.NANAVATI

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JUDGMENT : 1. Heard Mr. Nimit Y. Shukla, learned advocate appearing for the petitioner and Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for the respondent Nos. 1, 2 and 3- State. Though served, none appears for and on behalf of the respondent no.4. 2. By way of the present petition, petitioner herein is aggrieved and dissatisfied by the impugned order passed by the respondent no.1 dated 07.01.2004, duly produced at Annexure-H, Pg-37, whereby, by the impugned action, the respondent nos. 2 and 3 withheld the benefit of last pay protection and reduced the basic pay of the petitioner from Rs.8500/- to Rs.6500/- and issued recovery for the services rendered by the petitioner herein in a non-granted secondary school for a period from 05.12.1996 to 31.12.1999. 3. Brief facts leading to the filing of the present petition reads thus: 3.1. The petitioner herein was appointed after following due procedure of selection and approval of the respondent – District Education Officer (DEO) as provided under Section 35 of the Gujarat Secondary Education Act, w.e.f. 01.01.2000 in the respondent no.4 school. 3.2. Prior to the joining of the respondent no.4 school, the petitioner was initially appointed as Assistant Teacher in Higher Secondary section in I.P. Mission High School on 15.09.1984 and had worked there till 17.07.1986. Due to reduction of classes, the petitioner was declared surplus and was absorbed in Kadod High School in higher secondary section and thereafter, joined as Assistant Teacher in higher secondary section in R.S.M. Punawala Sarvajanik Experimental High School, Surat. Accordingly, the petitioner had put the services as an Assistant Teacher in higher secondary section from 15.09.1984 to 04.12.1996. The petitioner herein is deprived of the 1st higher grade pay scale on completion of 9 years of service, w.e.f. 27.12.1995 in the pay scale of Rs.2000-3500 and on that basis, his basis pay was fixed at Rs.7700/-. 3.3. The petitioner herein joined as Head Master on 05.12.1996 in Jeevanbharti Pravuti Vidyalaya, Surat, which was being run and managed by the respondent no.4 management, viz. Jeevanbharti Mandal, Surat, after following due procedure of selection. The said school is a non-granted school, but all the provisions of the Gujarat Secondary Education Act, Regulations and Grant-in-Aid Code Rules are made applicable. The petitioner herein joined as Head Master on 05.12.1996 in Jeevanbharti Pravuti Vidyalaya, Surat, which was being run and managed by the respondent no.4 management, viz. Jeevanbharti Mandal, Surat, after following due procedure of selection. The said school is a non-granted school, but all the provisions of the Gujarat Secondary Education Act, Regulations and Grant-in-Aid Code Rules are made applicable. The Gujarat Secondary and Higher Secondary Education Board had also issued a Circular on 20.01.2005 directing all the District Education Officers that registered non-granted school should have complied all the provisions of the Gujarat Secondary and Higher Secondary Education Act and Regulations framed there-under, regarding qualification of the teacher and for making a prescribed salary as per Regulation No. 24 prescribed by the State of Gujarat and accordingly, in the said non-granted school, the petitioner herein was paid a regular pay scale which is prescribed for the post of Head Master, i.e. Rs.6500-10500 from month to month by the respondent no.4 management. 3.4. The petitioner thereafter joined R.D. Ghael Jeevanbharti Madhyamik Vidyalaya on the post of Head Master, which was being managed by the respondent no.4 herein, after obtaining NOC, advertisement, interview, selection procedure as per Section 35 of the Act and upon following due procedure and approval from the DEO, the petitioner was selected and appointed as Head Master and he joined the duty on 01.01.2000 as Head Master and accordingly he was paid the regular monthly salary alongwith giving the pay protection of basic pay of Rs.7700/- for rendering the earlier services from month to month. 3.5. The respondent school submitted the proposal for pay fixation for the post of Head Master to the respondent – DEO on 28.11.2001. The respondent- DEO submitted the proposal of pay fixation of the petitioner as Head Master to the respondent no.2 – Commissioner of Schools, for approval. The said proposal came to be declined by the respondent no.3 by the impugned communication dated 07.01.2004, duly produced at Annexure-H, Pg-37, on the ground that as the services of the non-granted institution was for more than a period of 15 months, the last pay protection cannot be given. It is the case of the petitioner that the aforesaid, was ignoring the services rendered as Head Master in non-granted registered secondary school by the petitioner. It is the case of the petitioner that the aforesaid, was ignoring the services rendered as Head Master in non-granted registered secondary school by the petitioner. Furthermore, the respondent-DEO had given the instruction that the pay scale of Head Master, i.e. Rs.6500-10500, should be put on initial stage of basic pay, and thereafter the pay shall be assessed. It is also the case of the petitioner that, immediately the respondent – DEO reduced the basic pay of the petitioner from Rs. 8500/- to Rs.6500/- and also ordered the recovery for a period from 01.01.2000 to December, 2003, for which the payment was made to the petitioner as basic pay of Rs.8500/- alongwith the other admissible allowances. 3.6. Being aggrieved by the impugned action undertaken by the respondent no.2 herein, the petitioner herein approached this Court and has prayed for the following reliefs, which reads thus: “(A) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction by quashing and setting aside the impugned action of the respondent Nos.2 and 3 for withholding the benefit of last pay protection and reduce the basic pay from Rs.8,500/- to Rs.6,500/- and raising recovery as violative of Articles 14 and 16 of the Constitution of India and against the principles of natural justice and further be pleased to declare that the services rendered by the petitioner in non-granted registered secondary school for the period from 5.12.1996 to 31.12.1999 shall be considered continue for all services benefit inclusive of last pay protection and for the purpose of pension and leave which the petitioner is entitled and eligible to get it; (B) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction by staying the impugned action of respondent Nos.2 and 3 for raising the recovery of pay and for reduction in the basic pay and further be pleased to direct the respondent No.3 to release the salary without reduction of basic pay as Head Master to the petitioner as on 1.1.2000 was paid, pending admission, hearing and final disposal of the present petition; (C) To grant such other and further relief/s as the Hon’ble Court may deem fit in the facts and circumstances of the case.” 4.1. Mr. Mr. Nimit Y. Shukla, learned advocate appearing for the petitioner, at the outset submits that the impugned action/impugned order dated 07.01.2004 undertaken by the respondent authority, whereby, the respondent authority has ordered recovery for the period from 05.12.1996 to 31.12.1999, during which period the petitioner has served with the respondent no.4 school, and reduced the pay scale of the petitioner from Rs.8500/- to Rs.6500/-, is violative of the basic principles of natural justice. 4.2. It is submitted that, the impugned action undertaken by the respondent authority is required to be quashed on the aforesaid ground alone that the petitioner herein is adversely affected, whereby, the pay scale of the petitioner is reduced from Rs.8500/- to Rs.6500/- and the same has been passed in violation of the principles of natural justice and before arriving such a decision, which is adverse, petitioner herein has not been granted any opportunity of hearing. 4.3. Reliance is placed on the decision rendered in the Special Civil Application No. 7366 of 2014 and allied matters, judgment and order dated 26.11.2018 and Civil Appeal No. 1635 of 2013 in the case of Jagdish Prasad Singh v/s. State of Bihar and others, decided by the Hon’ble Apex Court dated 08.08.2024 and has submitted that the aforesaid issue is no longer res- integra that the person, who is adversely affected by any order that may be passed, an opportunity of hearing is required to be granted. 4.4. It is submitted that there are other contentions also, which requires consideration, however, the petitioner herein limits his submission to the extent that the impugned action/decision is undertaken, in gross violation of the principles of natural justice, whereby, the petitioner herein is adversely affected to the impugned order dated 07.01.2004. 5.1. Per contra, Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for the respondent – State authorities has placed reliance on the affidavit-in-reply filed by the respondents, which is duly produced at Page-54 and has submitted that, no error can be said to have been committed by the respondent authority in passing the impugned order, in view of various communications that were entered into between the respondent no.4 school and the respondent – DEO from time to time. 5.2. 5.2. It was also submitted that the respondent no.2 has rightly ordered, by the impugned order dated 07.01.2004, that the petitioner having rendered services with the non-granted institute, i.e. the respondent no.4 herein for more than 15 months, i.e. for the period of three years and one month, i.e. for the period from 05.12.1996 to 31.12.1999 and as per the resolution dated 02.08.1995, there was a break between the service and in view thereof, the benefit of the government resolution dated 02.08.1995 cannot be extended to the petitioner. Therefore, the pay protection is not available to the petitioner. 5.3. It was submitted that, in light of the aforesaid undisputed facts, it is not open for the petitioner to agitate such grievance, wherein, the petitioner is aware that the petitioner had rendered service for three years with non-granted institute and the benefit of pay protection is not available to the petitioner. 6. Mr. Shukla, learned advocate appearing for the petitioner, in rejoinder submitted that the learned Assistant Government Pleader is not in a position to dispute the fact that the impugned order dated 07.01.2004 is an order, which adversely affects the rights of the petitioner and is passed without following principles of natural justice. 7. Having heard the learned advocates appearing for the respective parties, this Court has perused the impugned order dated 07.01.2004, which is duly produced as Annexure-H, at Page-37, which reads thus: “No.MA-6/ACHARYA PAGAR/2003/1264/66 Office of District Education Officer, C-5, Muti-storeyed Building, Nanpura, Surat. Date: 07/01/2004. To, Mantri, Jivan Bharati Mandal, Surat. Subject : Regarding fixation of Pay of Shri R.G.Shinde, Principal. Reference: Letter No.PEN./PAY. VERI/2003-04/17408 dated 15/11/2003 of the Commissioner, Mid- day Meal and Schools, Gandhinagar. While referring to the subject and reference noted above, it is submitted that as stated in the letter No.PEN./PAY. VERI/2003-04/17408 dated 15/11/2003 of the Commissioner, Mid-day Meal and Schools, Gandhinagar, Shri Shinde has worked as a Principal in the non-granted institution during the period from 05/12/1996 to 31/12/1999. As Shri Shinde has worked in non- granted school for more than 15 months before joining as a Principal in the granted school with effect from 01/01/2000, he is not entitled to protection of pay or pay scale as per rules. As Shri Shinde has worked in non- granted school for more than 15 months before joining as a Principal in the granted school with effect from 01/01/2000, he is not entitled to protection of pay or pay scale as per rules. (copy of the letter dated/11/2003 is enclosed herewith) Under the above circumstances, as Shri Shinde is not entitled to protection of last pay or pay scale, you are requested to forward to this office, the proposal for his pay fixation as Principal upon his appointment in the granted school as a Principal, at the earliest. You are further requested to recover the salary paid to him as per the last pay protection and deposit the same to the Government by challan and forward copy of the challan to this office. It is hereby instructed to assess his pay by placing him at the initial stage in the pay scale of the Principal i.e. 6500-200-10500 till his pay fixation. Kindly contact the school and get the correction done in his pay scale accordingly. Sd/- District Education Officer, Surat District, Surat.” 8. The aforesaid order as referred above, affects the rights of the petitioners adversely. The said order is passed, placing reliance on the government resolution dated 02.08.1995. Placing reliance on the same, petitioner’s service which was rendered for the period of three years with the respondent no.4 institute, as referred above, the same being for more than 15 months, the petitioner is declined to grant the benefit of pay protection, further, petitioner’s pay scale is also reduced. The pay protection of the basic pay, which was granted to the petitioner to the tune of Rs.7,700/- w.e.f. 01.01.2000 to 31.12.2003 and on 01.01.2000, the basic pay of the petitioner was Rs.8,500/-, which came to be reduced to Rs.6,500/- and vide letter dated 07.01.2004 ordered recovery for the period from 05.12.1996 to 31.12.1999, during which the petitioner has served with the respondent no.4 school, is violative of the basic principles of natural justice. In the opinion of this Court, the impugned action undertaken by the respondent – State adversely affects the petitioner. The impugned order is passed without issuing show cause notice or opportunity of being heard to the petitioner. 9. It is well settled principle of law that, principles of natural justice are required to be followed for any action, adversely affecting an employee. The impugned order is passed without issuing show cause notice or opportunity of being heard to the petitioner. 9. It is well settled principle of law that, principles of natural justice are required to be followed for any action, adversely affecting an employee. It is apposite to refer to the ratio as laid down by the Hon’ble Apex Court in Civil Appeal No. 1635 of 2013 in the case of Jagdish Prasad Singh v/s. State of Bihar and Others, dated 08.08.2024, wherein, in Para-20, the Hon’ble Apex Court has held as under: “20. Without prejudice to the above findings, we are of the view that no departmental action could have been initiated by the State against the appellant after eight years following his superannuation because the employer employee relationship had come to an end after the appellant's superannuation. The order directing reduction in pay scale and recovery from the appellant was manifestly not preceded by any show cause notice and was thus, passed in gross violation of the principles of natural justice. Pursuant to the order dated 20th July, 2009 passed in the Writ Petition No. 6714 of 2009 filed by the appellant, he submitted a representation to the Secretary, Food and Consumer Protection Department, Government of Bihar, which vide order dated 8th October, 2009 was rejected, preceded by a personal hearing. A perusal of the said order would indicate that the Secretary took a view that as per paragraph 11(supra) of the Government Resolution, the first/second time bound promotion of the appellant had come to an end automatically w.e.f. on 1st January, 1996 and thus, the appellant was required to be redesignated to the post of Marketing Officer and would be entitled to the revised pay of Rs.5500-9000 w.e.f. 1st January, 1996 as recommended by the Fitment Committee. Thus, even in this order, the promotion conferred to the appellant to the post of ADSO on 10th March, 1991 is not doubted.” 10. In light of the aforesaid position of law as referred above and in the facts of the present case, the impugned action of the respondent authorities of withholding the benefits of last pay protection and reducing the basic pay from Rs.8,500/- to Rs.6,500/- and raising recovery is violative of principles of natural justice and in view thereof, the said action is quashed and set aside. The matter is remanded back to the respondent No.3- District Education Officer, Surat to grant an opportunity of hearing to the petitioner, and upon issuance of show cause notice to the petitioner, and upon receipt of the copy of the present order. The respondent no.3 herein shall also follow the cardinal principles of natural justice and shall take a decision afresh, in accordance with law. The respondent no.3 shall decide the matter independently and shall examine the grievance of the petitioner, without being influenced by the aforesaid impugned action. The reasonings in the present petition are with respect of arriving at a decision in the present matter and the same would not come in the way of respondent authority, while deciding the issue afresh. This Court has not opined on the merits of the matter. 11. The present Petition stands allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. Direct service is permitted.