SCA/4342/1990 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 4342 OF 1990 With SPECIAL CIVIL APPLICATION NO. 4394 OF 1990 To SPECIAL CIVIL APPLICATION NO. 4395 OF 1990 With SPECIAL CIVIL APPLICATION NO. 4400 OF 1990 To SPECIAL CIVIL APPLICATION NO. 4401 OF 1990 With SPECIAL CIVIL APPLICATION NO. 4403 OF 1990 To SPECIAL CIVIL APPLICATION NO. 4405 OF 1990 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ====================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge ? ====================================== H. H. KAPADIA & ANR. - Petitioner(s) Versus STATE OF GUJARAT & ORS. - Respondent(s) ====================================== Appearance : Mr. P. M. Thakkar for Petitioners. Mr. Dipen Desai, AGP for Respondent No.1. Mr. K. V. Shelat for Respondent No. 2. Mr. Chetan K. Pandya for Respondent No. 3. ====================================== SCA/4342/1990 2/5 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/01/2008 COMMON ORAL JUDGMENT As in all this group of petitions, a common question of law and facts is involved, they are being disposed of by this common judgement. 2. In all this group of petitions under Articles 226 and 227 of the Constitution of India, the respective common petitioners have prayed for an appropriate writ, direction or order declaring the Government Resolution dated 25/09/1987 at Annexure 'A' as discriminatory, arbitrary, irrational and violative of Articles 14 and 19 of the Constitution of India. The respective common petitioners have also prayed for an appropriate direction and order quashing and setting aside the judgement and order of the Gujarat Primary Education Tribunal at Ahmedabad passed in Applications No.14 to 23 of 1988, 187 of 1988 and 190 to 192 of 1988, granting the benefit of Resolution dated 25/09/1987 in respect of the original applicants - private respondents herein with effect from 22/05/1986. 3. Today when the matters are called out for final hearing, Shri D. M. Thakkar, learned Advocate appearing on behalf of the petitioners, SCA/4342/1990 3/5 JUDGMENT Shri Dipen Desai, learned Assistant Government Pleader appearing on behalf of the respondent-State and Shri Chetan Pandya, learned Advocate appearing on behalf of respective original applicants, jointly submitted that so far as challenge to the Government Resolution dated 25/09/1987 is concerned, the said dispute is now covered by the judgement of the Division Bench of this Court in the case of Swaminarayan Education Trust vs. State of Gujarat, reported in 1993 (2) GLR 1713, and that the validity of the Government Resolution dated 25/09/1987 is upheld by the Division Bench of this Court. However, Mr. D.M. Thakkar, learned Advocate appearing on behalf of the respective petitioners, has submitted that even as per the judgement and order passed by the Division Bench of this Court, the benefit of the Government Resolution dated 25/09/1987 is required to be given prospectively i.e. with effect from 26/09/1987. However, in the present case, the learned Tribunal has granted the benefit of the Government Resolution dated 25/09/1987 retrospectively, more particularly, with effect from 22/05/1986 and to that extent, the impugned judgement and order passed by the learned Tribunal requires to be modified. 4. Shri Chetan Pandya, learned Advocate appearing on behalf of the respondents - original applicants, is not in a position to dispute the aforesaid proposition of law and has fairly conceded that the impugned judgement and order passed by the learned Tribunal may be modified to SCA/4342/1990 4/5 JUDGMENT the aforesaid extent. 5. Heard the learned Advocates appearing on behalf of the respective parties. Now, so far as challenge to the Government Resolution dated 25/09/1987 is concerned, the dispute raised in the present petitions is now not res integra. The Division Bench of this Court, in the case of Swaminarayan Education Trust (supra), has considered the legality and validity of the impugned resolution dated 25/09/1987. Under the circumstances, challenge to the Government Resolution dated 25/09/1987 in the present petitions fail. 6. However, Shri D.M. Thakkar, learned Advocate for the petitioners, is right in making the submission that even as per the decision of the Division Bench of this Court in the case of Swaminarayan Education Trust (supra), the benefit of the Government Resolution dated 25/09/1987 can be extended prospectively and not retrospectively, i.e. with effect from 22/05/1986, and on considering the impugned judgement and order passed by the learned Gujarat Primary Education Tribunal, it appears that the learned Tribunal has passed the order extending the benefit of the Government Resolution dated 25/09/1987 retrospectively with effect from 22/05/1986. Under the circumstances, the impugned judgement and order passed by the learned Tribunal in each of the application is required to be modified to that SCA/4342/1990 5/5 JUDGMENT extent. Even the Division Bench of this Court, in the case of Swaminarayan Education Trust (supra), in paragraph-25 of its judgement, has also passed an order modifying the judgement and order passed by the learned Primary Education Tribunal in those cases to the extent, extending the benefit of the said resolution with effect from 25/09/1987. Therefore, to the extent the learned Tribunal has awarded difference in salary for the period commencing from 22/05/1986 to September 24, 1987, the judgement and order passed by the learned Tribunal is required to be quashed and set aside. 7. For the reasons stated above, all these petitions succeed in part. The impugned judgement and order passed by the learned Gujarat Primary Education Tribunal dated 2nd March, 1990 in Applications No.14 to 23 of 1988, 187 of 1988 and 190 to 192 of 1988 is hereby modified to the extent that the direction given by the learned Tribunal awarding difference in salary for the period commencing from 22/09/1986 to 24/09/1987 is quashed and set aside and rest of the judgement and order is confirmed. Rule is made absolute to the aforesaid extent in each of the petitions. There shall be no order as to costs. [M. R. Shah, J.] kamlesh*