L G Kacha vs State Of Gujarat
2024 Latest Caselaw 3914 Guj

Gujarat High Court

L G Kacha vs State Of Gujarat on 1 May, 2024

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     C/SCA/4683/2011                                JUDGMENT DATED: 01/05/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 4683 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                                L G KACHA
                                   Versus
                         STATE OF GUJARAT & ORS.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR JAY TRIVEDI AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                               Date : 01/05/2024

                              ORAL JUDGMENT

1. Present petition is filed by the petitioner under Article 226 of the Constitution of India with the following reliefs:-

(A) direct the respondent authorities to grant Transport

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allowance to the employees of the Non-Government Secondary and Higher Secondary Schools, with effect from the date on which the same is granted to the employees of the State Government with all consequential benefits, and

(B) pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to grant Transport Allowance to the employees of the Non-Government Secondary and Higher Secondary Schools, and

(C) award the cost of the petition, and

(D) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.

2. Heard learned counsel appearing for the petitioner and learned Assistant Government Pleader for the respondent - authorities.

3. Learned counsel for the petitioner has submitted that the benefit of transport allowance has not been granted to the employees working with Non-Government Secondary and Higher Secondary Schools. Learned counsel for the petitioner has submitted that there was no reason for the Government to discriminate the employees working with Non-Government Secondary and Higher Secondary Schools in comparison with the employees of the Government and other departments including the Panchayat department. It is also submitted by the learned counsel for the petitioner that the action of the respondent in not granting transport allowance to the employees is illegal, unjust and arbitrary. Learned counsel appearing for the petitioner has submitted that the petition deserves to be allowed.

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4. Learned Assistant Government Pleader appearing for the respondent - authorities has submitted that the petitioner has no locus to file the petition because there is no violation of any fundamental right and it is well settled law that in the service matter third party cannot prefer petition. Learned AGP has submitted that the recommendation is for the Central Government Employees and not for the teachers of grant in aid institutions and therefore the pay commission is not applicable to the State Government more particularly for grant in aid institutions. Learned AGP has submitted that the resolution dated 03.10.1997 to give transport allowance to the Central Government Employees and not for grant in aid institutions and the resolution dated 07.01.1998 was implemented towards the decisions taken by the Central Government pursuant to the recommendations of 5th Pay Commission and the same is qua Government employees of the State Government only because the Central Government Recommendation in its report clarified that the benefit of transport allowance is only for the Government Employees who are appointed by the Government only. Learned AGP being meritless deserves to be dismissed.

4.1 Learned AGP has referred to and relied upon the affidavit- in-reply filed by the respondent - authority. The relevant paragraphs of the affidavit-in-reply are as under:-

"6. I say and submit that in para 3.2 petitioner seeking parity of the 5th Central Pay Commission which recommended the grant of transport allowance to the Central Government Employees to suitably compensate them for the cost incurred on account of commuting between the place of resident and the place of duty. With this regard the deponent denied all averments made in the para 3.2 and submits that the said recommendation is qua

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to Central Government Employees and not for the teachers of grant in aid institutions. Therefore, the pay Commission would not applicable to the State Government more particularly for grant in aid institutes.

7. I say and submit that the present deponent categorically denied averments made in para 3.3 and it is humbly submit that the Resolution dated 03.10.1997 to give transport allowance to the Central Government Employees and not for grant in aid institutes.

8. I say and submit that the present deponent is categorically denied all averments made in para 3.4 and respectfully submit that the Resolution dated 07.01.1998 was implemented towards the decisions taken by the Central government pursuant to the recommendations of the central 5th Pay Commission Reports. The deponent humbly submit that the GR dated 07.01.1998 is qua Government Employees of the State Government only because the Central Government Recommendation in its Report clarify that the benefit of Transport Allowance is only for the Government Employee who are appointed by the Government only. I further submit that the petitioner is representing the association of grant in aid schools and he is asking the benefit of Resolution of Central Government dated 03.10.1997 and State Government Resolution dated 07.01.1998, which are applicable to Government Employee only. But the petitioner or its association (if any) is working in grant in aid institutes (Grant in aid schools). It is respectfully submit that employee of the grant in aid institutions was appointed by the concerned institutions i.e. management and therefore the management is the appointing authority of such employee, they are not the employee of government. Therefore, it is clear that the employees of grant in aid institutes are not entitled for the benefit of the Transport Allowance."

4.2 Learned AGP has referred to and relied upon the decision in the case of Directorate of Film Festivals and others Vs. Gaurav Ashwin Jain and others reported in (2007) 4 SCC 737 wherein the Hon'ble Supreme Court has held and observed in para 16 as under:-

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"16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. vide : Asif Hameed V/s. State of J&K, 1989 Supp2 SCC 364; Shri Sitaram Sugar Co. Ltd., V/s. Union of India, 1990 3 SCC 223; Khoday Distilleries V/s. State of Karnataka, 1996 10 SCC 304, Balco Employees Union V/s. Union of India, 2002 2 SCC 333, State of Orissa V/s. Gopinath Dash, 2005 13 SCC 495 and Akhil Bharat Goseva Sangh V/s. State of Andhra Pradesh, 2006 4 SCC 162."

4.3 Learned AGP has also referred to and relied upon the decision in the case of Anun Dhawan and others Vs. Union of India and others reported in 2024 LawSuit SC 154 = 2024 JX(SC) 132 wherein the Hon'ble Supreme Court has held and observed in para - 8 as under:-

"8. It is well settled that the scope of judicial review in examining the policy matters is very limited. The Courts do not and cannot examine the correctness, suitability or appropriateness of a policy, nor are the courts advisors to the executive on the matters of policy which the executive is entitled to formulate. The Courts cannot direct the States to implement a particular policy or scheme on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, would be the subject of judicial review."

5. Having considered the submissions canvassed by the learned counsel appearing for the respective parties and

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averments made in the petition as well as the affidavit-in-reply, it appears that by virtue of the policy decision taken by the Government Resolution dated 07.01.1998 under the 5 th Pay Commission, the petitioner is not entitled to get the benefit of the transport allowance and since it is a policy decision taken by the State Government, this Court is of the opinion that while exercising the jurisdiction under Article 226 of the Constitution of India, this Court can not interfere with the policy decision taken by the State Government. Considering the facts and circumstances of the case and the said decisions of the Hon'ble Supreme Court, it is well settled that the scope of judicial review in examining the policy matters is very limited and even this Court is not sitting in appeal, the petition is being devoid of merits, deserves to be dismissed.

6. In the result, the petition stands dismissed. Ruled is discharged. Interim relief, if any, shall stand vacated forthwith. There shall be no order as to costs.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL