IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11267 of 2004 with SPECIAL CIVIL APPLICATION Nos. 11266, 11268 to 11386, 11390, 11392 to 11397, 11514 to 11523, 12233 and 12348 to 12351 of 2004 (143 Matters) For Approval and Signature: HON'BLE MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PATEL GITABEN RAMANLAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 11266 to 11350 of 2004 MS AVANI S MEHTA for Petitioner No. 1 MR AD OZA, GOVERNMENT PLEADER for Respondent No. 1-2 MR PRANAV G DESAI for Respondent No. 3 NOTICE SERVED BY DS for Respondent No. 4-5 2. Special Civil Application No. 11351 to 11386, 11390, 11392 to 11397, 11514 to 11523, 12233 and 12348 to 12351 of 2004 MS AVANI S MEHTA for Petitioner No. 1 MS MITA PANCHAL AGP for Respondent No. 1-2 MR PRANAV G DESAI for Respondent No. 3 NOTICE SERVED BY DS for Respondent No. 4-5 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.S.SHAH Date of decision: 20/12/2004 COMMON CAV JUDGEMENT In this group of 143 petitions, the petitioners who are primary teachers rendering services in primary schools run by the Municipal School Board of the Baroda Municipal Corporation have claimed that just as teachers in the primary schools run by the District Panchayat Primary Education Committees as well as teachers in the primary schools by the Municipalities and Municipal Corporations are paid salary in the pay-scale of Rs.4000-6000; the first grade higher pay-scale being given to them upon completion of nine years' service should also be the same i.e. Rs.5000-8000 which is being given to the teachers in primary schools run by the District Panchayats upon completion of nine years' service, that the said scale already given to the 63 petitioners should not be withdrawn and that the remaining petitioners be given the same scale instead of offering them the lower scale of Rs.4500-7000. 2. The facts lie in a narrow compass. 2.1 The petitioners are primary teachers employed by the school board of the Baroda Municipal Corporation. At the time of their appointment, under the Revision of Pay Rules, 1987, the pay-scale for primary teachers was Rs.1200-2040. The petitioners' pay was accordingly fixed in the said pay-scale. However, upon coming into force of the Revision of Pay Rules, 1997, with effect from 1.1.1996, the petitioners' pay-scale came to be revised to Rs.4000-6000. 2.2 In the meantime, the Government had introduced the scheme for paying higher grade pay-scales to the Government employees as per the Government Resolution dated 5.7.1991. The scheme was modified and by Government Resolution dated 16.8.1994, the State Government gave the benefit of higher pay-scales to primary teachers also. The resolution provides that upon completion of 9, 20 and 31 years' service, primary teachers will be given first higher grade, second higher grade and third higher grade pay-scales respectively. Thereafter Government Resolution dated 14.8.1998 introduced certain modifications in the scheme to give higher grade pay-scales. 2.3 63 petitioners herein appointed as primary teachers after 1.1.1996 were granted the first higher grade pay-scale of Rs.5000-8000 upon completion of 9 years' service. The other petitioners were accordingly waiting for the said higher grade pay-scale. However, the petitioners came to learn that by letter dated 1.5.2001 (Annexure "D" to the petition), the Director of Primary Education had informed the Offices of the Local Fund Audit that the primary teachers employed by the Municipal Primary Education Committees (known as Municipal School Boards) were to be given the first higher grade pay-scale of Rs.4500-7000 and the pay-scale of Rs.5000-8000 was to be given as second grade higher pay-scale. The petitioners also came to learn that the Director of Accounts & Treasury also addressed communication dated 16.7.2001 to the Offices of the Local Fund Audit that the primary teachers employed by the District Primary Education Committees were to be given the first higher grade pay-scale of Rs.5000-8000 and the second grade higher pay-scale of Rs.5500-9000, but the primary teachers employed by Municipal Primary Education Committees are required to be given first grade higher pay-scale of Rs.4500-7000 and second grade higher pay-scale of Rs.5000-8000. 2.4 Till July 2004, the 63 petitioners were getting their pay in the first higher grade pay-scale of Rs.5000-8000, but on apprehending that the Administrative Officer of the Baroda Municipal Corporation was now going to act upon the aforesaid instructions and was going to reduce the first grade higher pay-scale from Rs.5000-8000 to Rs.4500-7000, Special Civil Application No. 11273 came to be filed by Nagar Prathmik Shikshak Samiti Karmachari Maha Mandal, Vadodara, a registered union of primary teachers serving in the primary schools of the Municipal School Board of Baroda Municipal Corporation. This Court granted ad-interim relief to maintain status quo in respect of salary of the members of the association. Thereafter when the petition reached hearing on 17.8.2004, the Court (Coram : Hon'ble Miss Justice RM Doshit) held that the petition filed by the Association was not maintainable, but liberty was given to each of the members of the Association to file a substantive petition. Accordingly, that petition came to be disposed of and the present individual petitions came to be filed. 3. While issuing notice, this Court directed the respondents to maintain status quo regarding the petitioners' pay-scale. 4. In response to the notice, affidavit in reply dated 29.9.2004 has been filed by the Joint Director of Primary education, Gujarat State. Affidavit in reply dated 11.10.2004 has also been filed by the Administrative Officer, Municipal School Board, Baroda Municipal Corporation. All the respondents have resisted the petitions. The relevant submissions made in the respective affidavits will be referred to hereinafter. 5. At the hearing of these petitions, Ms Avani Mehta, learned counsel for the petitioners has raised the following contentions :- 5.1 In view of Government Resolution dated 11.12.1986, the primary teachers employed by the Municipal Corporations/Municipalities are to be given the same benefits which are being given to the primary teachers employees by the District panchayats without any further orders required to be issued by the State Government. Hence, the primary teachers employed by the District panchayats as well as those employed by the Municipal Corporations/Municipalities are given identical pay-scale of Rs.4000-6000. Accordingly, when the primary teachers employed by the District panchayats are being given the first higher grade pay-scale of Rs.5000-8000 upon completion of 9 years' service, the primary teachers employed by the Municipal Corporations are also entitled to get the same first higher grade pay-scale of Rs.5000-8000 upon completion of 9 years' service. 5.2 The primary teachers employed by the Municipal Corporations are similarly situate as the primary teachers employed by the District panchayats. All of them perform the same duties - teaching pupils in Standards I to VII and are governed by the same Bombay Primary Education Act, 1947 and Bombay Primary education Rules, 1949. Hence, the respondent authorities cannot mete out discriminatory treatment to the primary teachers employed by the Municipal Corporations by giving them the first higher grade pay-scale of only Rs.4500-7000, while giving the first higher grade scale of Rs.5000-8000 to primary teachers employed by District Panchayats. 5.3 The respondents are proceeding on an erroneous basis that there is no post of Education Inspector in the Municipal Corporations. Several such Inspectors have been appointed by the Administrative Officer of the Baroda Municipal Corporation. Reliance is placed on several such orders by which some primary teachers are promoted/appointed as Education Inspectors. 5.4 When the primary teachers employed by the respondent-Municipal Corporation who completed 9 years' service before 1.1.1996 are given pay-sale of Rs.5000-8000 after 1.1.1996, there is no justification not to give the same pay-scale to the primary teachers who completed 9 years' service after 1.1.1996. 5.5 Reliance is placed on the decisions of the Apex Court for invoking the doctrine of "Equal Pay for Equal Work". 6. On the other hand, Ms Mita S Panchal, learned AGP appearing for the State Government and the Director of Primary Education and Mr Pranav G Desai, learned counsel for the Baroda Municipal Corporation have made submissions on the basis of their reply affidavits broadly on the following basis :- 6.1 The gist of the defence of the State Government and the Director of Primary Education is that the first higher grade pay-scale of Rs.5000-8000 is being given to the primary teachers employed by the District panchayats because for them the promotional avenue is the cadre of Education Inspector Class-III in the pay-scale of Rs.5000-8000. For the primary teachers employed by the Municipal Corporations/Municipalities, there is no such promotional post of Education Inspector Class-III. Hence, for them the first higher grade pay-scale is Rs.4500-7000 as stipulated in Clause 3(2) in Government Resolution dated 16.8.1994 read with the Schedule thereto as amended by Government resolution dated 14.8.1998. Reference is also made to the orders passed by this Court in Special Civil Application Nos. 1425 and 2206 of 2003 wherein a similar grievance was made and the petitioners therein were asked to make a representation to the State Government. The representation made by the Association of Primary teachers employed by the Surat Municipal Corporation came to be rejected by the State Government and communicated to the association through letter dated 13.8.2003 from the State Government in the Education Department (Annexure "R4"). The said decision has become final. 6.2 The stand of the Municipal Corporation is that they have followed the Government instructions and particularly the amended schedule to the Government Resolution dated 16.8.1994 providing that for employees in the pay-scale of Rs.4000-6000, the first higher grade pay-scale would be Rs.4500-7000. It is further clarified that the primary teachers of the Baroda Municipal Corporation, who were in the pre-revised pay-scale of Rs.1200-2400, upon completion of 9 years' service prior to 1.1.1996 were given the first higher grade pay-scale of Rs.1400-2600 (pre-revised) and those teachers were, upon revision of the pay-scale, placed in the revised pay-scale of Rs.5000-8000 with effect from 1.1.1996. However, those employees who were in the pay-scale of Rs.4000-6000 with effect from 1.1.1996 were entitled to receive the first higher grade pay-scale of Rs.4500-7000 and the second higher grade pay-scale of Rs.5000-8000 as per the instructions dated 1.5.2001 of the Deputy Director of Education. 6.3 Reliance is placed on the decisions of the Apex Court in support of the submission that in petitions under Article 226 of the Constitution, this Court would not examine the applicability or otherwise of the doctrine of "Equal Pay for Equal Work" as that would require investigation into various factual aspects like the nature of duties, responsibilities, disciplinary control, etc. 7. Having heard the learned counsel for the parties, the Court has given anxious and thoughtful consideration to the rival submissions. But before dealing with the submissions or even before referring to the relevant statutory provisions and Government Resolutions, it is necessary to enumerate the different pay-scales in order to have clarity about the issues involved in this group of petitions :- ------------------------------------------------ | Pre-revised | Revised Pay-Scale | | Pay-scales | (from 1.1.1996 | | (from 1.1.1986 to | onwards) | | 31.12.1995) | | ------------------------------------------------ | 1640-2900 | 5500-9000 | ------------------------------------------------ | 1600-2660 | | | 1400-2600 | 5000-8000 | ------------------------------------------------ | 1400-2300 | 4500-7000 | ------------------------------------------------ | 1200-2040 | 4000-6000 | ------------------------------------------------ 8. Now reference may be made to Government Resolution dated 16.8.1994 laying down the scheme for higher grade pay-scales. The resolution stated that the main intention of the Government was to give the higher grade pay-scales to the employees who had no opportunity of promotion in their service as Government employees. While in case of the other Government servants, the benefit was to be given upon completion of 9, 18 and 27 years' service, in case of teachers the Government decided to give such benefits to teachers upon completion of 9, 20 and 31 years' service. Clause 3(2) of the resolution is material for the purposes of the present controversy and reads as under :- "3(2) First Higher Pay Scale means the immediate higher pay scale but in case of separate pay scales or more than one pay scales or promotion for one posts are there then in the case the pay scale of their first higher pay scale in such promotion posts will be treated as the lowest post pay scale. But, in case there is no pay scale for promotion then in that case the first higher pay scale equivalent to its present salary will be as mentioned in Schedule (1) attached to this Government Resolution. But, in a special case in the case of additional scale of various pay scales, then in that posts instead of the Higher Pay Scale promotion pay, the higher pay scale as mentioned in Schedule (1) of this Government Resolution equivalent to his present pay scale will be taken into consideration." The schedule to the said Resolution gave pre-revised pay-scales and higher grade pay-scales against the pre-revised scales. Upon revision of pay-scales by the Gujarat Civil Services (Revision of Pay) Rules, 1998, the pay-scales came to be revised with effect from 1.1.1996. Hence, by Government Resolution dated 14.8.1998, the Government amended Clause 3(2) of the Government Resolution dated 16.8.1994 and particularly revised the schedule thereto. The relevant portion of the said revised schedule reads as under :- ----------------------------------------- | Revised Pay-scale | Higher Grade | | (w.e.f. 1.1.1996) | Pay-scale | | |(w.e.f. 1.1.1996)| ----------------------------------------- | 5500-9000 | 6500-10500 | ----------------------------------------- | 5000-8000 | 5500-9000 | ----------------------------------------- | 4500-7000 | 5000-8000 | ----------------------------------------- | 4000-6000 | 4500-7000 | ----------------------------------------- 9. Having regard to the stand adopted by the respondent authorities, two controversies emerge - (i) whether the primary teachers employed by the Baroda Municipal Corporation have any promotional avenue, and (ii) irrespective of the answer to the first question, whether the primary teachers employed by Municipal Corporation have any right to get the same first/second/third higher grade pay-scales as are being given to the primary teachers employed by District panchayats. 10. According to the respondents, the schedule to Government Resolution dated 16.8.1994 as amended by Government Resolution dated 14.8.1998 provides that the employees are entitled to get the higher grade pay-scale of their promotional post. For primary teachers employed by District panchayats in the pay-scale of Rs.4000-6000, their promotional post is Education Inspector Class-III in the pay-scale of Rs.5000-8000. Hence, their first higher grade pay-scale would also be of Rs.5000-8000. On the other hand, primary teachers employed by Municipal Corporations and Municipalities are employees in the pay-scale of Rs.4000-6000 who have no promotional avenues and are, therefore, to be given the first higher grade pay-scale of Rs.4500-7000 upon completion of 9 years' service as indicated in clause 3(2) read with the revised Schedule. 11. The petitioners' answer to the above case of the respondent authorities is two fold. In the first place, the Baroda Municipal Corporation also does have the posts of Educational Inspector known as School Inspectors who perform supervisory duties over the primary teachers employed by the Baroda Municipal Corporation. Copies of orders dated 31.7.1982, 28.3.1983, 26.6.1984, 19.4.1988/24.11.1988, 2.6.1989 and 21.1.2002 are produced by the petitioners with their affidavit in rejoinder dated 18.10.2004. All the said communications/orders do show that the posts of School Inspectors do exist on the establishment of the Baroda Municipal Corporation. However, it also appears from the said communications that School Inspectors, though being given supervisory duties over primary teachers employed by the Baroda Municipal Corporation, are not given any higher pay-scale, but they are only given additional pay over and above the salary in the scale of primary teachers. The orders dated 26.6.1984 and 19.4.1988 also indicate that the posts of School Inspector are filled in by selection from amongst qualified primary teachers who have alteast 10 years teaching experience. It, therefore, appears that inspite of availability of posts of School Inspector, the respondent authorities have not passed any orders sanctioning a separate or higher pay-scale for them. 12. Turning to the provisions of the Bombay Primary Education Act, 1947 Chapter III thereof provides for powers, duties and functions of District school board, authorized municipalities and municipal school boards. Part A (Sections 11 to 15) deals with district school boards. Part B (Section 16 and 17) provides that the State Government may authorize any municipality to control all approved schools within its area. Section 17 reads as under :- "17.(1) Subject to the provisions of this Act and the rules made thereunder an authorized municipality shall perform the following duties and functions, namely - (a) ... ... ... ... ... (b) ... ... ... ... ... (c) to maintain an adequate staff of Assistant Administrative Officers, Supervisors, Attendance Officers, clerks, teachers, inferior servants and staff as may in the opinion of the State Government be necessary. (d) ... ... ... ... ... (e) to sanction with or without variation the budget of the municipal school board; (f) ... ... ... ... ... (2) ... ... ... ... ... (3) The authorized municipality shall, subject to the sanction of the State Government, make regulations - (i) determining the qualifications, pay and terms of employment of the Assistant Administrative Officers, Supervisors, Attendance Officers, Clerks, inferior servants and other staff; Part C (Section 18) provides that subject to the provisions of this Act and the rules made thereunder, the municipal school board shall be responsible for the management and control of all primary schools which vest in the authorized municipality and the board shall exercise such powers and perform such duties and functions of the authorized municipality in respect of primary education as may be prescribed. Sub-section (2) of Section 18 provides that to the provisions of this Act and the rules made thereunder, a municipal school board shall, inter alia, (a) to prepare schemes to be submitted by the authorized municipality to the State Government for expansion of primary education and to carry out the provisions of such scheme; (b) to disburse monies from the primary education fund in accordance with the budge sanctioned by the authorized municipality; Chapter V of the Act provides for administrative machinery and, in so far as the same is relevant, reads as under :- "20.(1) Every district school board with the approval of the State Government and every authorized municipality shall maintain an adequate staff of Assistant Administrative Officers, Supervisors, Attendance Officers, clerks, primary school teachers and inferior servants and other staff (including engineering staff), as may in the opinion of the State Government be necessary for the administration, management and control of approved schools within its area .. ... (1A) ... ... ... ... ... (2) The staff maintained under sub-section (1) shall be servants of the district school board or of the authorized municipality, as the case may be and shall receive their pay, allowances, gratuities and pensions from its primary education fund. Such staff maintained by a district school board shall receive their provident fund from the fund established under section 46A and the primary school teachers maintained by an authorized municipality shall receive their provident fund from the primary education fund. (2A) ... ... ... ... ... (3) The rates of the pay and allowances and terms of employment in respect of all the members of the staff maintained by a district school board and of the primary school teachers maintained by an authorized municipality shall be as fixed from time to time by the State Government. (4) The State Government may from time to time prescribe the duties to be performed by the staff maintained under sub-section (1) (5) The State Government may constitute State Level Committee, namely Vidyasahayak Committee to exercise such powers and perform such functions as may be prescribed. (6) The State Government may constitute Village Education Committee and Village School Constitution Committee to exercise such powers and perform such functions as may be prescribed." (emphasis supplied) 13. The Bombay Primary Education Act, therefore, provides that while every District School Board has to obtain approval of the State Government for maintaining its staff, as far as the authorized Municipality is concerned (the Municipal School Board maintains and controls all primary schools which vest in the authorized municipality), it shall maintain an adequate staff of Assistant Administrative Officers, Supervisors, primary school teachers, etc. as may, in the opinion of the State Government, be necessary for the administration, management and control of approved schools within its area. The staff maintained under sub-section (1) of Section 20 shall be servants of the district school board or of the authorized municipality, as the case may be and shall receive their pay, allowances, gratuities and pensions from their primary education fund as per the rates fixed by the Government. It is, therefore, incumbent upon every authorized municipality and the municipal school board to maintain adequate staff of assistant administrative officers, supervisors, clerks, primary school teachers, etc. Of course, how many posts of assistant administrative officers or supervisors in a higher pay scale should be sanctioned is a matter to be decided by the State Government, but the statute does provide for such posts of supervisors for primary schools under every authorized municipality. Various orders issued by the Administrative Officer of the Baroda Municipal Corporation appointing/promoting primary teachers as School Inspectors are, therefore, in consonance with the provisions of sub-section (1) of Section 20 of the Act. 14. The next question is whether in absence of any specific orders of the State Government or the Baroda Municipal Corporation sanctioning higher pay-scale for supervisors or school inspectors, will it be open to this Court to hold that school inspectors under an authorized municipality be paid salary in the scale of Rs.5000-8000. While the answer would not be in the affirmative, at the same time the contents of the Government Resolution dated 11.12.1986 cannot be overlooked. From time to time, the State Government revises the pay-scales and gives various monetary benefits to the Government employees and by the same orders also to panchayat employees. Since such resolutions/orders do not make a reference to the primary teachers employed by the Municipal School Boards, the delay in passing separate orders used to cause hardship to the primary teachers employed by the Municipal Corporations/Municipalities. Hence, the State Government by the said resolution dated 11.12.1986 specifically provides that all the benefits being given to the Government employees (which benefits were also being given to panchayat employees) shall automatically be applicable to the primary teachers employed by the Municipal Corporations/Municipalities with effect from the same date on the same basis and subject to the same conditions. 15. When admittedly the posts of Education Inspector are sanctioned on the set up of the district panchayats and they are being paid salary in the scale of Rs.5000-8000, the question whether the school inspectors appointed by the Baroda Municipal Corporation are also required to be placed in the same pay-scale is a matter which needs consideration by the State Government. Since this aspect does not seem to have been considered by the State Government or the Baroda Municipal Corporation, it would be necessary for the State Government to give a fresh look to the matter and consider it. 16. Coming to the second controversy, whether irrespective of availability of posts of Education Inspector/School Inspector on the set up of the Baroda Municipal Corporation, whether the primary teachers employed by the Municipal Corporation are entitled to claim parity with the primary teachers employed by the district panchayats, it is necessary to note that in the first place all the primary teachers (whether employed by the district panchayats or by Municipal Corporations or Municipalities) are placed in the same pay-scale of Rs.4000-6000 and there is no controversy about