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2024 DIGILAW 739 (GUJ)

State Of Gujarat v. Amrutbhai Mathurbhai Patel

2024-04-03

BIREN VAISHNAV, PRANAV TRIVEDI

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ORDER : (Biren Vaishnav, J.) Oral Order In R/Letters Patent Appeal No. 120 of 2024 1. Heard Mr.Sanjay Udhwani learned AGP for the appellant – State and Mr.R.V.Deshmukh learned advocate appearing for respondent no.1. 2. Challenge in this appeal at the hands of the State is to the order of the learned Single Judge dated 24.11.2022, by which, the prayer set out in the petition was granted. 3. For the sake of brevity, we do not reiterate the facts of the petitioner’s career as they have been set out by the learned Single Judge in the order which read as under: “4 Brief facts giving rise to the present petition can be briefly summarized as under. 4.1 The petitioner is having qualification of B.Com., B.Ed. and was initially appointed as Assistant Teacher in Higher Secondary Section of Government aided minority educational institution called Janta Vidhyalaya on 1.7.1984. At the relevant point of time, the pay scale of teachers of secondary as well as higher secondary schools was the same in the pay scale of Rs.440-750. Thereafter vide Government Resolution dated 18.1.1989 separate scales were prescribed for teachers of higher secondary schools and higher secondary schools. As per the said Government Resolution, the teachers of secondary schools were entitled for pay scale of Rs.440-750 whereas for higher secondary school teachers it was Rs.550-900. As per the aforesaid Government Resolution, the benefits were to be granted notionally from 1.7.1979 upto 31.12.1985 and from 1.1.1986 onwards the salaries were required to be fixed in the pay scale of Rs.1640-2900. The aforesaid pay scale of Rs.550-900, which was revised by Rs.1640-2900 vide Government Resolution dated 18.1.1989, was made applicable only to the higher school teachers. 4.2 Since the petitioner was not given the benefit of Government Resolution dated 18.1.1989 by placing him under higher pay scale of Rs.1640-2900, he preferred an Application No.109 of 1991 before the Gujarat Higher Secondary Schools Service Tribunal and vide judgment and order dated 4.8.1998 the Tribunal allowed the application preferred by the petitioner and directed the respondents to fix the salary of the petitioner as per the Government Resolution dated 18.1.1989. Accordingly, the petitioner's salary was fixed at a pay scale was fixed at a basic pay of Rs.1700. However, verification of the same was not done by Local Fund Office. Accordingly, the petitioner's salary was fixed at a pay scale was fixed at a basic pay of Rs.1700. However, verification of the same was not done by Local Fund Office. In the meantime, some similarly situated teachers directly approached this Court for the same relief by filing Special Civil Application No.3804 of 2002 and allied matters and the learned Single Judge of this Court allowed those petition vide judgment and order dated 30.8.2002 holding that those teachers were entitled to pay scale of Rs.550-900 from their date of appointment and they were required to be given corresponding revised pay scale of Rs.1640-2900 from 1.1.1986. The aforesaid judgment dated 30.8.2002 was challenged before the Division Bench of this Court by filing Letters Patent Appeal No.839 of 2003 and allied matters. However, the aforesaid appeal preferred by the State of Gujarat was dismissed vide order dated 2.7.2004. Even thereafter the State of Gujarat preferred appeal before the Hon’ble Supreme Court being S.L.P. [Civil] Nos.10606-10611 of 2005 and all those appeals were dismissed by the Hon’ble Supreme Court vide order dated 7.1.2008. 4.3 In the meantime, the petitioner was declared surplus and was subsequently absorbed as surplus teacher in Sanskar High School, Kapdi Vad, Raipur vide order dated 11.1.2000 passed by the District Education Officer. Even thereafter also, the petitioner was declared surplus from Sanskar High School and was subsequently absorbed in Shri M.H.Vidhyamandir at Dabhoda, District Gandhinagar vide order dated 12.7.2004 passed by the District Education Officer. The petitioner served in the said school till attaining his superannuation on 31.5.2015. 4.4 It is the grievance of the petitioner that despite rendering 31 years of service, he has not been given the benefit of pay revision as per the 5th and 6th pay commission recommendation and benefit of two higher pay scales on completion of 9 years and 20 years of service, and therefore, the petitioner has preferred this petition. 4.5 In the meantime, during the pendency of this petition, co-ordinate Bench has passed a detailed interim order dated 14.6.2018. Paras 4 and 5 thereof read as under: “4. Under the circumstances, the respondents authorities are directed to send comprehensive revised proposal for fixation of pay in light of the 6th and 7th Pay Commission. While doing so, higher grade pay scale payable to the petitioner is also required to be taken into consideration. Paras 4 and 5 thereof read as under: “4. Under the circumstances, the respondents authorities are directed to send comprehensive revised proposal for fixation of pay in light of the 6th and 7th Pay Commission. While doing so, higher grade pay scale payable to the petitioner is also required to be taken into consideration. The respondents- authorities shall move such proposal to the concerned Competent Authority for getting approval of pay fixation by giving effect of higher grade pay scale, and thereafter, on the basis of the last salary drawn, the final pension amount has to be fixed. 5. The above exercised be undertaken by the respondents-authorities within a period of two months from the date of receipt of the order and the outcome of such exercise be placed before this Court on 27.08.2018.” 4.6 Pursuant to the aforesaid directions, the State Government considered the case of the petitioner and passed a detailed order dated 14.12.2018 granting most of the benefits to the petitioner. However, according to Mr.Deshmukh, learned advocate for the petitioner, the aforesaid order has remained on paper only and it has not been given effect by the State Government and the petitioner has not received a single penny though the order was passed in the year 2018. Vide order dated 14.12.2018, the Deputy Secretary, Education Department observed that the petitioner was an under qualified person, and therefore, his case would be governed by Government Resolution dated 29.4.1992 passed by the Education Department and only 60% of the period of the petitioner’s service will be considered for the purpose of higher pay scale and further directed the school to do the needful in furtherance of the aforesaid order. 4.7 The petitioner is aggrieved by even the aforesaid order dated 14.12.2018 as while passing the order what was considered by the authority was the fact that at the relevant point of time when the petitioner was appointed in the year 1984 the petitioner was under-qualified. According to the stand taken by the authority as per the order dated 14.12.2018 at the time of appointment, the petitioner was required to have a degree of B.Ed. along with 7 years experience. Though at the time of appointment, the petitioner was possessing the degree of B.Ed. According to the stand taken by the authority as per the order dated 14.12.2018 at the time of appointment, the petitioner was required to have a degree of B.Ed. along with 7 years experience. Though at the time of appointment, the petitioner was possessing the degree of B.Ed. he did not possess the prescribed experience which he acquired by working, and therefore, the petitioner was not entitled to get the pay scale of Rs.550- 900 and accordingly he cannot be given the corresponding pay scale in the pay scale of Rs.1640-2900 and even the other benefits of time scale promotion and all other pay revisions also can be given only after the petitioner acquired the necessary qualification on completion of 7 years experience. In other words, all the financial benefits of pay revision and time scale promotion that the petitioner is claiming from the date of appointment were required to be deferred by 7 years as per the stand taken by the respondent authorities, which would caused a great monetary loss to the petitioner.” 4. Considering the factual details, the learned Single Judge granted the prayers set out in the petition which included granting of benefit of higher grade pay to the petitioner based on the services rendered by him. 5. Mr.Sanjay Udhwani learned AGP for the State would assail the order of the learned Single Judge on the ground that there could not have been a cascading effect i.e. by virtue of a judgement rendered by a learned Single Judge in Special Civil Application No.3804 of 2002 dated 30.08.2002, which was only for the purposes of pay fixation, higher grade pay could not have been granted to the respondent. 6. Mr.Udhwani would press into service resolution dated 29.04.1992 to indicate that in case of a untrained teacher who subsequently acquires the requisite qualification, only 60% of the tenure needs to be taken for the purposes of awarding for higher grade pay. In his submission, therefore, the learned Single Judge ought not to have granted the prayer of granting the higher pay scale based on the findings of the judgement rendered in the case of the petitioners in Special Civil Application No.3804 of 2002. 7. In his submission, therefore, the learned Single Judge ought not to have granted the prayer of granting the higher pay scale based on the findings of the judgement rendered in the case of the petitioners in Special Civil Application No.3804 of 2002. 7. From the factual narration which we have reproduced herein above, what is evident is that the respondent who was the original petitioner, had initially approached the Tribunal stating that his date of appointment as an Assistant Teacher was 01.07.1984 and that he was possessing a qualification of B.Com and B.Ed. He prayed for the pay scale of Rs.550-900/-. The Tribunal in its operative portion granted the relief which reads as under: “6. Therefore, it is held that the applicants are Higher Secondary Teachers from 01/07/1984 and 01/07/1985 and entitled for the pay scale of Rs.550-900 notionally upto 31/12/1985 and 01/01/1986 pay scale of Rs.1640-2900. The school will send the difference of pay bills of the applicants to the DEO within thirty days from receipt of this order and DEO will clear it within thirty days thereafter as per rules.” 8. Having been granted the pay scale of Rs.550- 900/- which was subsequently revised to Rs.1640-2900/-, the respondent superannuated without any further benefits of higher grade pay scale and pay revisions. Hence the petition was filed which is a subject matter of this appeal. 9. Pursuant to an interim order passed by this Court, the State on 14.12.2018 granted the benefit of higher pay scale restricting the same to the extent of 60% of the services rendered as prescribed under the Government Resolution dated 29.04.1992 under perception that the respondent for the period in the interregnum prior thereto, was untrained. 10. The root of the controversy with regard to fixation of pay between trained and untrained teachers was a case where the teachers like the petitioners faced reduction of pay from that of Rs.550-900 to that of Rs.440-750/-. It appears that some of the petitioners like the present respondent on being aggrieved by such reduction in pay, approached this Court by filing Special Civil Application No.3804 of 2002 and allied petitions. The learned Single Judge of this Court on 30.08.2022 allowed the petition and set aside the reduction. The question of interpretation of the Government Resolution dated 28.10.1975 which prescribed the qualification, was a subject matter of discussion before the learned Single Judge in the aforesaid petition. The learned Single Judge of this Court on 30.08.2022 allowed the petition and set aside the reduction. The question of interpretation of the Government Resolution dated 28.10.1975 which prescribed the qualification, was a subject matter of discussion before the learned Single Judge in the aforesaid petition. Reading the order of the learned Single Judge which is under challenge here, it appears that the learned Single Judge has reproduced the relevant portion of the judgement rendered in the case on hand in Special Civil Application No.3804 of 2022. 11. Having independently read the judgement in the case of Ushaben Lallubhai Patel v. State of Gujarat rendered in Special Civil Application No.3804 of 2002 and allied matters, we find that before the Court in the petition there was no dispute that the petitioner did not possess the qualification but did acquire the qualification subsequently. Admittedly, the petitioner did possess the qualification of B.Com with B.Ed. On the question of pay fixation on the interpretation of the relevant clause of Government Resolution dated 28.10.1975 and the resolution dated 08.12.1989 which was a subject matter of consideration before the Court in the case of Ushaben Lallubhai Patel (supra), what is evident is that, as observed by the learned Single Judge while quoting the relevant para, the running scheme throughout the various Government Resolutions issued after 1975 is that in view of the fact that teachers possessing qualifications prescribed in the resolution of 1975 were not available, the teachers possessing the qualification for the post of teacher in the secondary schools, but not possessing the qualification of higher secondary teacher may be granted time to acquire higher qualification or the additional experience. 12. It is not even disputed by the State as is evident from the affidavit in reply filed before the learned Single Judge that there was any dispute with regard to the qualification of the respondent herein. 13. Be that as it may, once having interpreted the resolution of 28.10.1975 in the judgement rendered in case of Ushaben Lallubhai Patel (supra) and when it was a case where the petitioner was not in the later part of the resolution being untrained but was admittedly a qualified teacher, the resolution of 29.04.1992 could not have been pressed into service. 14. 14. Once pay fixation was done in the pay scale of Rs.550-900/- and consequential pay scale of Rs.1640-2900/- in the true spirit of resolution for granting the higher pay scale, the State could not have pressed into service the resolution of 29.04.1992 restricting the benefits of service rendered for the entire period prior to his retirement in case of the respondent and deprive him of the benefit of the higher pay scale without the disqualification of the resolution dated 29.04.1992. 15. We also note that the learned Single Judge has observed that the judgement rendered in Special Civil application No.3804 of 2002 stood the test in the Division Bench in Letters Patent Appeal and also before the Supreme Court. It will be apt to reproduce the observations of the Division Bench which dismissed the Letters Patent Appeal of the State which have been quoted by the learned Single Judge in para 7.2 of the order under challenge. The said para reads as under: “7.2 Even in the Letters Patent Appeal No.839 of 2003 preferred by the State of Gujarat challenging the judgment dated 30.8.2002 passed by the learned Single Judge in Special Civil Application No.3804 of 2002 and allied matters, Division Bench of this Court in para 6 of order dated 2.7.2004 observed as under: “6. Giving careful consideration to the matter, we are of the opinion that the petitioners were appointed obviously because their services were needed for teaching in higher secondary schools. Therefore, permission should have been sought by the management and in case it was not sought, the default is of the management and not of the petitioners. Even otherwise, seeking permission is regulatory and not mandatory. Simply because permission was not sought by the management, petitioners cannot be deprived of the benefit of the Government Resolution dated December 8, 1989 particularly when similarly placed teachers have been extended this benefit, may be on the footing that in their cases, permission was sought from the competent authority by the managements. Therefore, petitioners are entitled to pay scale of Rs.550-900 from the date of their appointment notionally till 31.12.1985. Thereafter, they be fixed in the pay scale of Rs.1640-2900 with effect from 1.1.1986. Therefore, petitioners are entitled to pay scale of Rs.550-900 from the date of their appointment notionally till 31.12.1985. Thereafter, they be fixed in the pay scale of Rs.1640-2900 with effect from 1.1.1986. Therefore, direction of the learned Single Judge in para-9 referred to hereinabove, is modified to the extent that the petitioners would be fixed in the pay scale of Rs.550-900 with effect from the date of their appointment notionally, thereafter fixed in the pay scale of Rs.1640- 2900 from 1.1.1986. No further point arose for consideration between the parties in this group of Letters Patent Appeals and therefore, this group of Appeals stand allowed to the extent indicated hereinabove.” 16. For the aforesaid reasons, we do not find merit in the appeal. The appeal therefore stands dismissed. 17. It appears that even after the judgement was pronounced, due to some typographical error, speaking to minutes was filed and the error was rectified by a subsequent order dated 18.12.2023. ORAL ORDER IN CIVIL APPLICATION (FOR STAY) NO. 1 of 2023 Leave to amend. In view of disposal of the main Letters Patent Appeal, present Civil Application for stay will not survive and hence, the same is hereby disposed of.