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Judgment
Hon''ble Smt. Justice Abhilasha Kumari
Rule. Ms. Asmita Patel, learned Assistant Government Pleader, waives service of notice of Rule for respondentsNos.1 and 2. Mr. N.V. Solanki, learned advocate, waives service of notice of Rule for respondent no.3. Ms. Mita Panchal, learned Central Government Standing Counsel, waives service of notice of Rule for respondent no.4.Respondents Nos.5 to 11 did not appear pursuant to service of notice, and as they have no role to play, it is not necessary to issue notice of Rule to them. On the facts, and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the application is being heard and finally decided.
This application has been filed, with the following prayers:
(A) This Hon''ble Court may be pleased to issue appropriate writ order or direction to the respondent no.3 to immediately release and disburse the remaining amount of salary of the applicants fro February, 2009, as calculated and mentioned at Annexure-G, along with the interest at the rate of 18% per annum.
(B) This Hon''ble Court may be pleased to issue appropriate writ order or direction to take appropriate legal steps against the respondentno.3 for disobeying and flouting the orders of this Hon''ble Court.
(C) Grant ad-interim relief in terms of (A) above.
(D) Grant such other and further relief as thought fit in the interest of justice.
The applicants are some of the original petitioners in Special Civil Application No.2096 of 2010. They are registered teachers, under the Rehabilitation Council of India. The applicants are serving under the Integrated Education for Disabled Children Scheme, and according to them, have been appointed after following due procedure of law by the Gujarat Council of Education Research and Training ("GCERT" for short).
It is the case of the applicants that the Integrated Education for Disabled Children Scheme is in operation since the year 1981 in the State of Gujarat. All the applicants are working under the said Scheme, which covers education at primary as well as secondary levels to special children. The main petition, along with other similar matters, was admitted on 09.02.2010 by this Court. After hearing the parties, an order dated 28.04.2010 was passed, directing the Central Government to disburse the amount of salary of the applicants to the State of Gujarat on, or before, 24.05.2010. In turn, the State Government was to disburse the same to the applicants, without prejudice to the rights and contentions of the parties. Thereafter, on27.10.2010, this Court passed an order in Special Civil Application No.365 of 2010 and cognate matters, including the petition filed by the applicants, placing reliance upon communication dated 27.10.2010 placed on record by the learned Central Government Standing Counsel, which read asunder:
Government of India will deposit the balance amount of Rs. 34.44 crore, i.e. Rs. 26.78 crore (Rs. 7.66 crore has already been released to the State Govt. subject to the following conditions:
(i) Funds shall not be disbursed without the specific orders of Government of India.
(ii) Funds not utilized shall be returned to the Government of India.
Directions were issued to the Central Government to disburse the amount by 5th November, 2010. the Central Government released an amount of Rs. 34.44 crores in all, to be disbursed for the purpose of payment of salaries of teachers such as the applicants who were teaching special children. The State Government, in its turn, disbursed the amount to various NGOs, for payment of salaries to the teachers, including the applicants.
An application was moved by the applicants in Special Civil Application No.2096 of 2010, with a prayer to issue an appropriate direction to respondents Nos.2 and 3, to immediately release and disburse the amount of salaries of the applicants from February-2009, along with interest at the rate of 18% per annum. As the amount of salary had already been disbursed by the State Government to respondent No.3, it was directed that respondent No.3 shall disburse the salaries, not later than 31.03.2011.
The present application has been filed with a grievance that respondent No.3 (Dalit Vikas Samarpan Trust, Bharuch)has not disbursed the full amount of the salaries of the applicants, as received by it from the State Government and respondent No.2, in spite of the directions of this Court, in order dated 28.03.2011, passed in Civil ApplicationNo.1229 of 2011. It is stated in the application that the applicants have made representations to the Secretary of respondent No.3-Trust and have produced all necessary details demanded by the said respondent. However, the remaining salary has not been paid, even though other similarly situated person''s viz. respondents Nos.6 to 11 in the present application, have been paid the full amount of salary.
An affidavit has been filed by respondent No.2, stating that the said respondent has already disbursed the amount of salary to the tune of Rs. 2,18,900/-to respondent No.3,by grant memo dated 15.10.2010, prior to the order passed by this Court, which is the amount payable to one teacher for 11 months. It is further stated that on 20.10.2010,respondent No.2 has released and disbursed an amount ofRs. 19,271/-for one month and on 26.11.2010, respondentNo.2 has disbursed an amount of Rs. 23,43,374/-as salary for 14 teachers to respondent No.3. The Memorandums dated15.10.2010, 20.10.2010 and 26.11.2010 have been annexed as Annexure-RI (Collectively) to the affidavit-in-reply. It is averred that in spite of communications dated 08.04.2011, 02.07.2011 and 01.08.2011 directing respondent No.3 to pay the full amount of salary to the teachers, the said respondent has not paid heed to the same, which clearly amounts to contempt of the order of the Court.
Respondent No.3 has filed an affidavit-in-reply, seeking to justify its action of not releasing the full amount of salary to the applicants. It is stated that as the applicants have been imparting education to disabled children at the primary level, they are to be paid the salary of primary teachers only, and not the salary they are demanding. It is further stated that the State Government has taken an undertaking from respondent No.3,to the effect that the amount of grant given by it is liable to be repaid, depending upon the final decision in the petition, therefore, the remaining amount has not been paid to the petitioners. Lastly, it is stated in Paragraph7 of the affidavit that "inspite of such reality, the opponent No.3 is ready and willing to disburse the remaining amount of grant as per the direction that may be given by this Honorable Court in this Civil Application."
It is submitted by Ms. Kruti M. Shah, learned advocate for the applicants that the State Government has, in its communication dated 26.11.2010 addressed to respondentNo.3, clearly mentioned the amount to be paid to the applicants and it is an admitted position that they have not been paid the said amounts, but lesser amounts have been paid to them by respondent No.3, amounting to willful disobedience of the order of this Court. It is further submitted that similarly situated teachers (respondentsNos.6 to 11) have been paid the full amount of salary as disbursed by the State Government to respondent No.3,therefore, a direction may be issued to respondent No.3 to immediately release and disburse the remaining salary of the applicants.
The learned advocate for the applicants has further contended that the applicants have not received salaries for the months of February and March, 2009, and with effect from 01.04.2009 to 31.03.2010, the salaries have been only partially paid. The full amount as disbursed by respondentNo.2 has not been paid to the applicants.
Ms. Asmita Patel, learned Assistant Government Pleader for respondents Nos.1 and 2, states that several communications have been addressed by respondent No.2 to respondent No.3, calling upon the said respondent to immediately make the payment of salaries, as per the directions of the Court. It is submitted that the actual amounts to be paid to the applicants has also been directed to be paid, but respondent No.3 is not acting as per the directions of respondent No.2.
It is further contended that in spite of reminders, respondent No.3 is not sending the Utilization Certificate for the amount disbursed to the applicants, despite being informed that the recognition of respondent No.3 shall be cancelled, if directions given by respondent No.2 are not complied with, but respondent No.3 is paying no heed.
Mr. N.V. Solanki, learned advocate for respondent No.3,has largely reiterated the averments made in the affidavit in-reply filed by the said respondent, by submitting that the petitioners deserve to be paid the salary payable to primary teachers only, which has already been paid to them, and the demand made by them is not as per their entitlement. It is for this reason that the amount released by the State Government has not been fully disbursed by respondent No.3.
It is further submitted that in the eventually that the Court comes to a final decision in the petition that the amount disbursed by the Central Government is to be repaid to it, respondent No.3 could be asked to return the amount to the State Government, therefore, in such circumstances, the full amount has not been disbursed to the applicants. That, there is a difference between the amount of grant and the salary to be paid out of the grant, which is why respondent No.3 has paid the salaries as per the entitlement of the applicants, and not according to their demand. Lastly, it is submitted that in spite of such reality, in case the Court so directs, respondent No.3 will be willing to pay the remaining amount of grant and there''s no "willful conduct or attitude" on its part to disobey the order dated 28.03.2011.
Having heard the learned advocates for the respective parties and the learned Assistant Government Pleader, the following undisputed facts emerge from the material on record.
An amount of Rs. 34.44 crores has been disbursed by the Government of India to the State Government for payment of salaries of teachers such as the applicants, who teach disabled children.
The State Government has further disbursed this amount to NGOs across the State, for payment of salary to teachers who have been rendering services under the Integrated Education for the Disabled Scheme. It is not disputed that the applicants fall in this category. It is also not disputed that similarly situated teachers as the applicants have been paid the full amount of salary. Respondent No.2has directed respondent No.3 to pay the following amounts of salaries to the applicants:
Applicant No.
Name
Amount of Salary
1.
Vaghela Ramesh Mavjibhai
Rs. 2,33,371
2.
Solanki Devangnaben Natwarbhai
Rs. 2,33,371
3.
Christian Monikaben Kantibhai
Rs. 2,33,371
4.
Ghadge Umesh Damajirao
Rs. 2,33,371
5.
Bhagat Chandraprakash Dayanidhan
Rs. 2,33,371
6.
Chaudhary Kirtibhai Paragjibhai
Rs. 2,33,371
As against this, the following amounts have been actually paid to the applicants by respondent No.3, and the balance amounts due to them are as under:
Applicant No.
Name
Amount paid to the applicant
Balance amount due
1
Vaghela Ramesh Mavjibhai
Rs. 1,22,184
Rs. 1,36,526
2
Solanki Devangnaben Natwarbhai
Rs. 1,24,932
Rs. 129432
3
Christian Monikaben Kantibhai
Rs. 1,22,184
Rs. 1,32,180
4
Ghadge Umesh Damajirao
Rs. 1,22,184
Rs. 1,32,180
5
Bhagat Chandraprakash Dayanidhan
Rs. 1,24,932
Rs. 1,29,432
6
Chaudhary Kirtibhai Paragjibhai
Rs. 1,19,460
Rs. 1,39,250
These details have not been disputed by the learned advocate for respondent No.3. It is clear from the stand taken by respondent No.3, that the full amounts of salaries have not been paid to the applicants, though several grounds justifying this action have been raised in the affidavit-in-reply and in the submissions made by the learned advocates for respondent No.3.
When the Central Government has disbursed the amount under orders of this Court, for the specific purpose of payment of salaries of teachers such as the applicants, and the State Government has further disbursed the amount to NGO''s across the State, including respondent No.3, for payment of salaries, there is no justification for respondent No.3 to withhold even a single rupee of the money meant for the specific purpose of payment of salaries, especially as none of it has come out of its own pocket. The stand taken by respondent no.3 is totally unacceptable to this Court, on the facts and in the circumstances of the case. Withholding the balance amount due to the applicants would amount to unjust enrichment on the part of respondent No.3, which cannot be tolerated. The recalcitrant attitude of respondent No.3 is evident from the tone and tenor of the affidavit-in-reply and submissions made on its behalf at the Bar.
No doubt, there is a half-hearted attempt at an apology in Paragraph-7 of the affidavit, which appears to be an afterthought. Considering the vociferous opposition to payment of the full amounts of salaries, the same is unacceptable.
The submission made by the learned advocate for respondent No.3, to the effect that the salary is to be paid to the applicants as primary teachers, is without any substance, as it is for the State Government and respondentNo.2 to decide what amount is to be paid to them. The amounts payable to each of the applicants have already been specified by respondent No.2 in communication dated26.11.2010, and respondent no.3 is bound to make the payment accordingly.
In these circumstances, the submissions made by the learned advocate for respondent No.3 is founds to be unacceptable. Insofar as the submission regarding the undertaking to return the amount in case, the final decision goes in favour of the Central Government is concerned, the said submission is irrelevant in the context of the prayers made in the application. Respondent No.3cannot shirk its obligation to make the full payment of the amount of salary of the applicants as received from the State Government and respondent No.2.
The amount released by the Central Government to the State Government and further disbursed by the State Government to respondent no.3, cannot be termed as a ''grant'' as it is meant from the specific purpose of payment of salaries. Therefore, the submission of the learned advocate for respondent No.3 that there is a difference between a grant and the salary to be paid, is lacking in substance.
For the aforesaid-stated reasons, the following order is passed:
The application is allowed.
Respondent No.3 is directed to release the full amount of salaries of the applicants, as per the table reflected in communication dated 26.11.2010, within a period of 15 days from today. Further, the salaries of the applicants for the months of February and March,2009 shall be released by respondent No.3, within the stipulated period of time. If respondent No.3 fails to comply with the above directions within the time indicated hereinabove, the applicants are at liberty to resort to appropriate action.
Rule is made absolute. Direct Service of this order is permitted.