BHURIYA JASUBHAI BIJIYABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition under Article 226 of the Constitution of India is field for the purpose of seeking the following reliefs:-

(2.) The case of the petitioner is that the respondent no.5 is running Ashramshala in Dahod District in the name of Ranjitsinh High School, Devgadh-Baria. The petitioner was given an appointment on 28.06.1999 by respondent no. 5 and he joined the services with effect from 01.07.1999. Along with the petitioner, two other persons namely Baria Kamleshbhai Veljibhai and Maganbhai Damor were appointed as Kamathi and Cook respectively. The petitioner was possessing the qualification of SSC/B.A., and since the Ashramshala is situated in the tribal area and in an underdeveloped area, no persons were ready to serve and resultantly, looking to the need of the Ashramshala though the petitioner is possessing qualification of untrained teacher, the Ashramshala Adhikari vide letter dated 02.03.2000 requested respondent no. 2 to accord approval to the appointment of the petitioner in the interest of the tribal students. Respondent no. 2 - Commissioner in turn requested respondent no. 1 - authority to accord approval by letter dated 20.04.2000 and subsequently vide order dated 14.06.2000, the approval was granted as a special case as an untrained teacher since the date of appointment. Later on, the Deputy Director informed respondent no. 5 vide his letter dated 04.07.2000 that the approval is granted for all the three employees for the purpose of grant. When the appointment of the petitioner was made there was no policy of the government to pay fixed salary or to appoint Vidhya Sahayak in Ashramshala. The aforesaid rule was made applicable only after the year 2001. As a result of this, the petitioner was required to be paid regular pay-scale of untrained teacher with effect from 01.07.1999. It is further asserted by the petitioner that though along with the petitioner, approval for two other employees namely, Baria Kamleshbhai Veljibhai as Kamathi and Maganbhai Damor as a Cook was given by the same order, only the petitioner's salary was fixed for a period of five years. However, after completion of the period of five years, respondent no. 2 vide order dated 17.10.2006 passed an order of regular pay of untrained teacher and since then the petitioner is getting the regular salary. During the passage of time, it is the case of the petitioner that the petitioner cleared the qualification of B.P.Ed., in the year 2008. Therefore, once again respondent no. 5 - Ashramshala made a proposal to pay a payscale of a trained teacher to Respondent no. 4 vide letter dated 01.09.2008, same cannot be adversely affected. In the meantime, it was learnt by the petitioner that as per the Government Resolution the salary of the petitioner was wrongly fixed as a Vidhya Sahayak and that he is entitled to receive regular pay scale from the date of his appointment. Resultantly, respondent no. 5 vide letter dated 31.12.2008 made a proposal to respondent no. 4 along with the calculation of difference of pay and allowances. However, for a pretty long period, no reply was given by the respondent authorities. Thereafter, respondent no. 4 - Ashramshala Adhikari informed respondent no. 5 on 24.12.2010 to produce certain documents, and the same were forwarded to respondent no. 3 who sent proposal for approval for payment of regular pay-scale. However, respondent no. 2 vide letter dated 07.06.2012 directed respondent no. 3 to provide certain details, and the said letter was submitted to respondent no. 4 whereby, on 24.09.2012 the objections were clarified. In the meantime, the petitioner got a Government Resolutions dated 05.03.2004 and 31.03.2001 which indicated that the fixed salary is to be paid to the employees who were appointed after the year 2000 i.e. after 07.11.2000. In spite of the aforesaid position, the respondent authorities have not taken any decision and the petitioner is continued to deprive of his legitimate salary and is suffering monetary loss every month, The petitioner in fact is entitled to regular pay-scale with effect from his date of appointment in the pay scale of Rs.3050- 4590, rather than the fixed salary for five years. The petitioner is also entitled to the pay-scale of trained teacher with effect from 19.05.2008 when he cleared the qualification of B.P.Ed., Thus, on the basis of the pay-scale from the date of the appointment, the petitioner's pay-scale is also required to be fixed as per the 6th Pay Commission recommendation and is required to pay the difference of salary by making necessary entries in the service book. It is submitted that along with the petitioner two persons who were appointed however, they are paid regular salary of Rs.2550-3200 from the date of their appointment and the petitioner is continued to deprive of his legitimate salary which has constrained the petitioner to approach this Court by way of the present petition under Article 226 of the Constitution of India.

(3.) Learned advocate Ms. Mamta Vyas appearing for the petitioner has vehemently contended that the petitioner's appointment which took place on 28.06.1999 may be initially on temporary basis, but there was a clear assertion in the terms of the appointment that the service condition of the petitioner will be on the government basis. It has further been clarified as per condition no.4 of his appointment order this service condition would be applicable to that of the government changing from time to time and the appointment was given in anticipation of approval from the Commissioner of Tribal Development. Learned advocate Ms. Vyas has further contended that even permission was also sought to grant the benefit to the petitioner, but then vide Resolution dated 14.06.2000 as a special case after considering sympathetically an approval has been granted in the year 2000 placing the petitioner in Vidhya Sahayak Scheme at a salary of Rs.2500/- per month which order is accepted under compulsion by the petitioner.