Pandit Amit Vedprakash vs State Of Gujarat
2021 Latest Caselaw 14307 Guj

     C/SCA/16810/2018                                ORDER DATED: 17/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16810 of 2018
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 3595 of 2019
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                PATEL PRATIKKUMAR VINODLAL & 10 other(s)
                                Versus
                      STATE OF GUJARAT & 4 other(s)
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No.
1,10,11,2,3,4,5,6,7,8,9
MR. ROHAN SHAH, AGP for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
MS RV ACHARYA(1124) for the Respondent(s) No. 5
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  CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                            Date : 17/09/2021
                          COMMON ORAL ORDER

1) RULE. Learned advocates appearing for the parties waive service of notice of rule on their behalf.

2) In the present writ petitions, the petitioners are seeking a direction on the respondent authorities to absorb them in the full pay against the vacant posts of the retired employees from the date from their entitlement as per the policy of the State Government.

3) At the outset learned advocate appearing for the petitioners has submitted that the issue is squarely covered by the judgment dated 16.10.2019 passed in Special Civil Application No. 20873 of 2015 confirmed by the Division Bench vide order dated 28.01.2021 passed in Letters Patent Appeal No. 632 of 2020 in Special Civil Application No. 20873 of 2015.

4) The facts narrated in the petition are that the respondent No. 3 to 5 had published an advertisement for the recruitment of Vidhya Sahayak.

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Thereafter, the petitioners have applied for the said posts and they have been selected and appointed as Vidhya Sahayak. It is clearly mentioned in the resolutions dated 11.06.1998 and 15.04.2010 that after the two years of satisfactory service the Vidhya Sahayak may be absorbed in the full pay against the vacant post of the retired teachers in the regular full pay scale as per the merit wise and the rest of the Vidhya Sahayak may be absorbed in the full pay at the end of 5 years of services.

3.1 The respondent No. 1 has issued Government Resolution dated 11.06.1998 for the scheme of filling up the vacant posts of Vidhya Sahayak in the Primary Schools, wherein the whole procedure of the appointment of the Vidhya Sahayak has been prescribed. The respondent No.1 has issued another Government Resolution Dated 15.04.2010 by considering the earlier government resolutions, wherein the respondent No.1 has sated in paragraph no. 13, that after the successful completion of 2 years of service, if the service of the Vidhya Sahayak is found satisfactory then he can be absorbed in the full pay scale against the vacant posts.

3.2 After after considering the resolution dated 11.06.1998, the respondent no. 2 has forwarded one communication to all District Primary Education Officers of the Gujarat State as well as District Education Committees of the Gujarat State on 10.10.2000, wherein in paragraphs Nos. 3,4 and 8 to 13, it has been stated that the Vidhya Sahayaks can be absorbed in the full pay scale from the date of the successful completion of two years of service on the vacant post available.

5) Learned advocate Mr. Munshaw has submitted that the Division Bench vide order dated 28.01.2021 while considering the analogues issue

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has clarified the that the petitioners can only be absorbed from the date of vacancies, which are available.

6) It is not disputed that the issue is squarely covered by the of judgment dated 16.10.2019 passed in Special Civil Application No. 20873 of 2015. . This Court in the said judgment has held thus:-

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, specifically 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

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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 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.

7) The Division Bench while confirming the order passed by the Single Judge vide order dated 28.01.2021 passed in Letters Patent Appeal No. 630 of 2020 and allied matters has held thus.

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

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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."

8) In view of the aforesaid observations, the writ petitions succeed. Rule made absolute. Since the issue is squarely covered, the respondent is directed to confer the benefits to the petitioners in light of the aforesaid judgments and place them in regular pay scale from the date of vacancies available irrespective of the fact that they have completed 2 years of service and not from immediately completing 2 years of service.

9) Such order shall be passed within a period of three months from the date of receipt of the order of this Court.

Sd/-

(A. S. SUPEHIA, J) VISHAL MISHRA