Kanzariya Bharatbhai Sondabhai vs State Of Gujarat
2021 Latest Caselaw 12135 Guj

    C/SCA/21757/2019                                     JUDGMENT DATED: 24/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 21757 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

================================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
                       KANZARIYA BHARATBHAI SONDABHAI
                                    Versus
                              STATE OF GUJARAT
================================================================
Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,3,4,5,6,7,8,9
for the Respondent(s) No. 2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MR JAYNEEL PARIKH, AGP for the Respondent-State
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2
================================================================

    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 24/08/2021

                                 ORAL JUDGMENT

Heard learned advocate Mr.Gaurav Chudasama for the petitioners, learned Assistant Government Pleader Mr.Jayneel Parikh and learned advocate

C/SCA/21757/2019 JUDGMENT DATED: 24/08/2021

Mr.H.S.Munshaw for the respondents.

Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Jayneel Parikh and learned advocate Mr.H.S.Munshaw waives service of notice of rule for the respective respondents.

1. In this petition, the petitioners were appointed as Vidhya Sahayak in the year 2010 with the condition that their appointment would be on a fix pay for a period of two years and thereafter, on vacancies arising on account of retirement of other Vidhya Sahayaks, the petitioners would be given regular pay scale and their services would be regularized. However, despite the vacancies existing and period of two years having been passed, respondents did not regularize the services of the petitioner. The petitioners have therefore approached this Court with the following prayers :

"A. This petition be admitted and allowed.

B. Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ or direction and order to quash and set aside order Dt.24-10-2019 passed by the respondent no.3 and further pleased to direct the respondents authorities to consider the revised full pay to all the petitioners as per the earlier revised full pay order Dt.15-05-2019 and further pleased to direct respondent no.3 to pay difference amount and seniority as per their entitlement and other benefits to the present petitioners as expeditiously as possible.

C. Your Lordships may be pleased to quash and set aside letter Dt.17-10-2017 issued by the respondent no.1.

D. During the pendency and final disposal of this petition, the order Dt.24-10-2019 may be stayed and

C/SCA/21757/2019 JUDGMENT DATED: 24/08/2021

further pleased to stay the recovery proceedings pursuant to the aforesaid order Dt.24-10-2019 and further pleased to direct the respondents authorities not to disturb the increment which have been granted pursuant to the order Dt.15-05-2019 of revised full pay.

E. Any other relief that may be deemed just, proper and necessary may also be kindly granted."

2. Learned advocate Mr.Chudasama appearing for the petitioner submitted that the prayers made by the petitioners is squarely covered by the judgment dated 16.10.2019 passed in Special Civil Application No.20873 of 2015 as the present petitioners are identically situated to the petitioners of the said petition. It was further submitted that the Division Bench of this Court (Coram: Hon'ble the Chief Justice Mr.Justice Vikram Nath as he was then and Hon'ble Mr.Justice Ashutosh J. Shashtri) has confirmed the order passed in Special Civil Application No.20873 of 2015 vide order dated 28.01.2021 in Letters Patent Appeal Nos.630 of 2020, 631 of 2020 and 632 of 2020 by clarifying that the absorption on regular pay scale to be awarded to the petitioners from the date of the vacancies available irrespective of the fact that they have completed more than two years of service and not from immediately completing the two years of service.

3. In the case of Patel Rajnikant Zinabhai and 54 Others V/s. State of Gujarat in Special Civil Application No.20873 of 2015, this Court on 16.10.2019 has held as under :

C/SCA/21757/2019 JUDGMENT DATED: 24/08/2021

"6. In the present case, the undisputed fact remains that the petitioners are appointed vide orders dated 03.07.2010 in view of the policy dated 15.04.2010. The condition No.12 of the appointment order, specificall narrates that after completion of 2 years of service as Vidhya Sahayak, they will be placed in the pay-scale of Rs.5200-20200. This condition has been incorporated in their appointment orders in view of the condition No.13 of the original policy/Government Resolution dated 03.04.2010, by which the State Government has introduced the policy appointing the Vidhya Sahayaks.

7. Thus, the services of the petitioners are governed by the conditions incorporated in their appointment orders. Despite the aforesaid policy as well as appointment orders, the State Government did not place them in the regular pay-scale of Rs.5200-20200 in view of the subsequent resolution dated 27.04.2011, which can be termed as an illegal and arbitrary action.

8. It is pertinent to note that the Director of Education vide communication dated 20th September 2014, addressed to all the concerned District Primary Education Officers, had specifically called for the information about the Vidhya Sahayaks, who are appointed prior to the issuance of resolution dated 27.04.2011 are still left out of being regularized. Thereafter, in other districts the Vidhya Sahayaks were placed in the regular pay-scale after completion of 2 years of service by various orders dated 12.11.2014, one of which is placed at Annexure-G. Thus, the petitioners cannot be discriminated due to the remissness of the respondents no.3 and 4 in carrying out necessary exercise in their district by not placing them in the pay-scale of Rs.5200-20200 after completion of 2 years of service.

9. A perusal of the resolution dated 24.04.2011 reveals that vide condition No.14, the State Government has decided to place such Vidhyasahayaks after completion of 5 years of service. The resolution dated 27.04.2011 cannot be made applicable to the petitioners since they are appointed in view of the resolution dated 15.04.2010 and their service conditions are governed by the same. The resolution dated 27.04.2011 can only be made applicable prospectively to those Vidhya Sahayaks, who are appointed pursuant to it. Unless it is specifically provided in the resolution dated 27.04.2011 that it will have retrospective effect and the appointments made pursuant to the former resolution dated 15.04.2010 will be governed by the same, the respondents cannot deny the

C/SCA/21757/2019 JUDGMENT DATED: 24/08/2021

benefits arising out of the resolution dated 15.04.2010. Furthermore, it is not disputed that the resolution dated 15.04.2010 is implemented in other districts.

10. In this view of the matter, the petitioners cannot be discriminated and be denied the benefit of regular pay- scale after completion of 2 years of service as envisaged in their appointment orders as well as the policy dated 15.04.2010. The respondents are hereby directed to place the petitioners in the regular pay-scale of Rs.5200-20200 after completion of 2 years of service from the date of their appointment orders. The respondents are also directed to pay the consequential arrears to the petitioners. Necessary orders shall be passed within a period of 02 (two) months from the date of receipt of the writ of this order.

11. The present writ petition is allowed. Rule is made absolute. Direct service is permitted. "

4. The aforesaid decision was challenged by way of a Letters Patent Appeal which was decided by the Division Bench on 28.01.2021, wherein, it is held as under :

"7 The first submission made by Mr. Munshaw does not merit consideration inasmuch as the policy of the NCTE and the subsequent Government Resolution of the State Government were issued after the writ petitioners had been appointed and as such would not have any effect on the terms and conditions of the appointment of the writ petitioners. Coming to the second alternative submission of Mr. Munshaw, apparently Ms. Pandya can have no objection that their absorption and regular pay scale would arise only upon vacancies being available upon retirement, however, from the date the vacancies available they would be entitled to the regular pay scale.

8 Thus, to the limited extent, without interfering with the judgment of the learned Single Judge we only clarify that the absorption and regular pay scale to be awarded to the writ petitioners from the date the vacancies available irrespective of the fact that they have completed more than 2 years of service and not from immediately completing 2 years of service."

C/SCA/21757/2019 JUDGMENT DATED: 24/08/2021

5. The aforesaid averments were not controverted by the learned Assistant Government Pleader Mr.Parikh. Therefore, the judgment rendered in Special Civil Application No.20873 of 2015 is required to be followed.

6. Under these circumstances, this petition is allowed in terms of the judgment dated 16.10.2019 passed in Special Civil Application No.20873 of 2015 with clarification that the absorption in regular pay scale to be awarded to the petitioners from the date of vacancies available irrespective of the fact that they have completed more than two years of service and not from immediately completing two years of service. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J)

PALAK