Gujarat High Court

Iliyasbhai Yusufbhai Kadva vs State Of Gujarat on 23 January, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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     C/SCA/11632/2023                             ORDER DATED: 23/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11632 of 2023

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                        ILIYASBHAI YUSUFBHAI KADVA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, ASST.GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,5
SERVED BY RPAD (N) for the Respondent(s) No. 3,4
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 23/01/2024

                               ORAL ORDER

1. Heard learned advocate Ms.Mamta Vyas on behalf of the

petitioner and learned Assistant Government Pleader Mr.Sahil

Trivedi on behalf of the respondent - State.

2. By way of this petition, the petitioner has sought for the

following reliefs:-

"(a) Your Lordships may be pleased to issue a writ order or direction to the respondents to consider the full pay of the present petitioner as per the resolution dt.11/06/1998 which is annexed at Annex. "A" issued by the resp.no.1 and communications dt.10/10/2000 and 14/09/2001 issued by the resp.no.2 and further be pleased to direct resp.no.3 and 4 to pay difference amounts, seniority and other consequential all benefits to the present petitioner as expeditiously as possible in he interest of justice Annex. D & E.

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(b) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents to take a decision in the case of the petitioner putting them in regular pay scale and submit the same before this Hon'ble Court.

(c) Be pleased to pass such other and further relief as may be deemed fit by Your Lordships in the facts and circumstances of the case and in the interest of justice."

3. It is the case of the petitioner that the petitioner had

been appointed as a Vidhya Sahayak in a selection process

undertaken in the year 2000 and whereas, as per the policy of

the State Government, while the petitioner was entitled to be

placed in regular pay scale after completion of two years, yet,

the petitioner had not been granted such benefit.

4. Considering the submissions made by learned advocate

Ms.Vyas, it would also appear that the issue raised in the

present petition is covered by the decision of the learned

Coordinate Bench of this Court dated 18.09.2023 in Special

Civil Application No.9307/2023.

4.1. The facts of the issue raised in the present petition being

similar to the facts of the decision in Special Civil Application

No.9307/2023 and allied matters, could not be disputed by

learned AGP Mr.Trivedi.

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4.2. Considering the same, paragraphs no. 3, 4, 5, 6, and 7 of

order dated 18.09.2023 is reproduced hereinbelow for

benefit:-

"3. Briefly stated the case of the petitioners is that they had appeared for selection to the post of Vidhya Sahayak in an advertisement published by the respondent no.3 herein and whereas the petitioners after being had been selected appointed as Vidhya Sahajak in the year 2010 or thereabouts. It would appear that in terms of resolution dated learned Advocate would rely upon Government Resolution dated 11.06.1998 and resolution dated 15.04.20210, after period of two years of satisfactory service a Vidhya Sahayak could be absorbed in full pay against vacancies which would arise on account of retirement of teachers in the regular full pay scale and whereas such absorption would be on the basis of the merit list originally prepared. It also appears that Vidhya Sahayaks were not required to complete the period of five years in which they had been originally appointed on fix pay for being eligible and entitled for full pay. It appears that the petitioners are aggrieved by the fact that after completing two years of service, inspite of there being vacancies available, the petitioners were not absorbed against the vacancies which had arisen on account of retirement of teachers, who were on full pay scale and whereas the petitioners were required to wait for completion of 5 years for being entitled for being granted benefit of full pay.

4. It also appears that the issue raised in the present petitions is no more res integra more particularly in cases where similar issues had been raised, learned Co-ordinate Benches of this Court had held in favour of the petitioners therein and whereas the decision had been upheld by Division Benches of this Court. Considering the same, more particularity since the

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fact of the issue no more being res integra could not be disputed by learned AGP , at this stage, this Court seeks to place reliance upon observations of learned Co-ordinate Bench of this Court in Special Civil Application No. 2877 of 2022 dated 05.08.2022. Relevant observations of the learned Coordinate bench are reproduced hereinbelow:

"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 payscale after completion of 2 years of service by various orders dated 12.11.2014, one of which is placed at Annexure-G. Thus, the

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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 Vidhya sahayaks 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 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

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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, 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

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irrespective of the fact that they have completed more than 2 years of service and not from immediately 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 payscale 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.

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 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."

5. Considering the law laid down by the learned Co- ordinate Bench more particularly since it would appear that the learned Co-ordinate Bench had also referred to decision of the Division Bench of this

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Court whereby a similar view expressed by a learned Co-ordinate Bench has been confirmed, in the considered opinion of this Court, the present petitions are required to be allowed.

6. The respondents are directed to extend the benefit and absorb petitioners in the regular pay scale of Rs. 5200-20,200 from the date of vacancy had arisen in terms of Resolution dated 11.06.1998 and 15.04.2010.

7. Furthermore as observed by Division Bench of this Court in Letters Patent Appeal No. 630 of 2020 and allied matters dated 28.01.2021, it is directed that the absorption and regular pay scale would be awarded to the petitioners from the date the vacancies were available irrespective of the fact that the petitioners had completed more than two years of service and wheres such absorption and payment of regular pay scale would not be automatically available to the petitioners from the date they complete two years in service. The aforesaid exercise to be completed by the respondent authorities within a period of three months from the date of receipt of this order."

5. Having regard to the observations made by this Court in

the above order, more particularly since the decision in

identical circumstances relying upon decision of learned Co-

ordinate Bench as well as of Hon'ble Division Bench, the same

benefit as has been accorded to the petitioners therein is

required to be granted to the present petitioners

6. Hence, it is directed that the respondents to extend the

benefit and absorb the petitioner in regular pay-scale of

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Rs.5,200-20,200 from the date of vacancy arising in terms of