Patel Meghna Motibhai vs State Of Gujarat
2022 Latest Caselaw 9127 Guj

    C/SCA/16996/2022                             JUDGMENT DATED: 14/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16996 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 ?

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                        PATEL MEGHNA MOTIBHAI
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
for the Respondent(s) No. 1
MR MP PRAJAPATI(677) for the Respondent(s) No. 3
MR.UTKARSH SHARMA, AGP BY DS for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 14/10/2022

                            ORAL JUDGMENT

ORAL JUDGMENT

1 RULE returnable forthwith. Learned advocates

C/SCA/16996/2022 JUDGMENT DATED: 14/10/2022

waives service of notice of rule on behalf of the

respective respondents.

2 Mr.Gaurav Chudasama, learned counsel for the

petitioners, places reliance on a decision rendered by

this Court in Special Civil Application No. 144 of 2019

to submit that the issue raised in this petition is

squarely covered by the decision rendered in the

aforesaid petition, which reads as under:

"1. Rule. Learned advocates appearing for the respective respondents waive service of notice of rule.

2. At the outset, learned advocate Mr.Gaurav Chudasama appearing for the petitioner has submitted that the issue is squarely covered by the decision of this Court dated 16.10.2019 passed in Special Civil Application No.20873 of 2015, which is confirmed by the Division Bench vide order dated 28.01.2021 passed in Letters Patent Appeal No.630 of 2020.

3. Learned advocate Mr.Gaurav Chudasama for the petitioner has submitted that the petitioner is claiming the absorption in the regular payscale of Rs.5,200-20,200/- after completion of 2 years. He has submitted the case of the petitioner is denied by the respondents only

C/SCA/16996/2022 JUDGMENT DATED: 14/10/2022

while placing reliance on the resolutions dated 15.04.2010 and 27.04.2011, which are already considered by this Court. It is submitted that the petitioner was appointed as Vidhya Sahayak on 23.06.2010 on a fixed pay of Rs.4,500/-. He is claiming to be absorbed in the regular pay-scale after completion of 2 years.

4. Learned advocate Mr.Gaurav Chudasama for the petitioner has submitted that the petitioner cannot be denied the absorption in full payscale despite the post having been fallen vacant because of the retirement of the employees.

5. In response to the aforesaid submissions, learned advocate Mr.Chauhan, while placing reliance on the affidavit, has submitted that the State Government has issued a resolution dated 15.04.2010 extending the benefit of regular pay- scale to those Vidhya Sahayak, who have completed minimum service of 2 years. It is submitted that thereafter another resolution dated 27.04.2011 was issued by the respondent no.1 stating that such benefit of regular pay- scale of Rs.5,200-20,200/- would be available after completion of 5 years. Thus, he has submitted that once the State Government has issued Government Resolution dated 27.04.2011, the petitioner can only be absorbed after 5 years in the payscale of Rs.5,200-20,200/-

5.1. It is further submitted by the learned advocate Mr.Chauhan that the present writ petition is barred by delay as the petitioner has approached after 4 years after the passing of the order dated 15.12.2014.

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6. Learned AGP Mr.Adityasinh Jadeja has submitted in view of the policy of the State Government dated 27.04.2011, the petitioner can only be absorbed after he completes 5 years of service and not before that.

7. I have heard the learned advocates appearing for the respective parties.

8. The Court has also perused the judgment dated 16.10.2019 passed in Special Civil Application No.20873 of 2015. In the similar case having identical facts, the Court after perusal of the resolutions dated 15.04.2010 and 27.04.2011 has observed 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 payscale 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.

C/SCA/16996/2022 JUDGMENT DATED: 14/10/2022

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 benefits arising out of the resolution dated

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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

The Coordinate Bench has held that the Vidhya Sahayak cannot be discriminated and denied the regular pay-scale after completion of 2 years of service as envisaged in their appointment order as well as the policy dated 15.04.2010, only because subsequently the State Government has issued a resolution dated 27.04.2011, modifying the effect from 2 years to 5 years, the Court has held that the resolution dated 27.04.2011 will have no retrospective effect and the appointments, which are made pursuant to the resolution dated 15.04.2010 will be governed by the conditions as mentioned therein.

9. In the present case also, it is also not in dispute that the service of the petitioner will be governed by the resolution dated 15.04.2010,

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which provides for absorption in the pay-scale of Rs.5,200-20,200/- after completion of 2 years of service and as per the condition of appointment order. The aforesaid judgment was subject matter of appeal before the Division Bench in Letters Patent Appeal No.630 of 2020 and allied matters.

10. The Division Bench vide order dated 28.01.2021 has dismissed the appeal by observing 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 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

C/SCA/16996/2022 JUDGMENT DATED: 14/10/2022

completing 2 years of service."

The Division Bench has only clarified the aspect that such absorption shall be given from the date of vacancy of respective post.

11. Thus, the present writ petition is allowed in terms of the direction issued by the Division Bench and the respondents are directed to extend the benefit and absorb the petitioner in regular pay-scale Rs.5,200- 20,200/-from the date of vacancy of the post. So far as the aspect of delay is concerned, the contention is rejected as non confirming or absorption of the petitioner in the regular pay-scale would be continuous cause of action and hence, the writ petition cannot be said to be barred by any delay. Rule is made absolute.

12. Appropriate orders shall be passed within a period of two months from the date of receipt of the writ of this order. Direct service is permitted."

3 In view of the aforesaid decision, the present

writ petition is allowed in terms of the direction

issued by the Division Bench and the respondents are

directed to extend the benefit and absorb the

petitioners in regular pay-scale Rs.5,200- 20,200/-

from the date of vacancy of the post. So far as the

C/SCA/16996/2022 JUDGMENT DATED: 14/10/2022

aspect of delay is concerned, the contention is

rejected as non confirming or absorption of the

petitioner in the regular pay-scale would be

continuous cause of action and hence, the writ

petition cannot be said to be barred by any delay.

Rule is made absolute.

12. Appropriate orders shall be passed within a

period of two months from the date of receipt of the

writ of this order. Direct service is permitted.

(BIREN VAISHNAV, J) ANKIT SHAH