Gujarat High Court
Bamaniya Dineshbhai Rupsinh vs State Of Gujarat on 1 May, 2019
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/7533/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7533 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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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 or any
order made thereunder ?
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BAMANIYA DINESHBHAI RUPSINH
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SR. ADVOCATE WITH MS VIDHI J BHATT(6155) for
the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1, 2, 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 01/05/2019
ORAL JUDGMENT
In the facts and circumstances of the case and with request and consent of parties appearing through their learned advocates, the matter is taken up for final consideration today.
Page 1 of 7 Downloaded on : Sun Jun 30 19:10:29 IST 2019C/SCA/7533/2018 JUDGMENT 1.1 Rule, returnable forthwith. Learned
Assistant Government Pleader Mr.K.M. Antani waives service of notice of Rule on behalf of the respondents.
1.2 Heard learned senior advocate Mr.Shalin Mehta assisted by learned advocate Ms.Vidhi Bhatt for the petitioner and learned Assistant Government Pleader for the respondents.
2. The petitioner has challenged order dated 20th November, 2017 passed by respondent No.3 - The Director, Inclusive Education of the Disabled at the Secondary Stage Scheme (IEDSS). Thereby the respondent No.3 rejected the case of the petitioner for re-appointment as Special Teacher on the ground that petitioner did not have the requisite qualification of Degree of B.Ed. required under the Scheme. Petitioner has further prayed to command the respondent authorities to take the petitioner back in service with continuity and all consequential benefits.
3. The factual background, to be stated in brief, is that in the year 1974 the Central Government introduced a Scheme known as Integrated Education for the Disabled Children (IEDC), which has objective of providing educational opportunities to the challenged children to facilitate their retention in the system of school. The said Scheme covered the children from standards 1st to 12th and it came to be adopted by the State of Gujarat in the year 1981.
Page 2 of 7 Downloaded on : Sun Jun 30 19:10:29 IST 2019C/SCA/7533/2018 JUDGMENT 3.1 Under the IEDC, petitioner was appointed as
Special Teacher at Blind Welfare Council, Dahod on 12th February, 2009, since the petitioner was qualified to be appointed to teach the challenged children at the primary level. The appointment of the petitioner was sanctioned by the Gujarat Council of Education Research and Training - respondent No.2 herein.
3.2 IEDC Scheme came to be replaced by new Scheme as above, that is IEDSS, with effect from 01 st April, 2009 for the students of 9th to 12th standards. For students studying in the standards 1st to 8th, another Scheme known as Sarva Shikshan Abhiyaan Mission was floated. Now, as per the guidelines of IEDSS Scheme, the requisite qualification for being appointed as Special Teacher for class 9 and 10 were Graduate with B.Ed. (Special Education) or B.Ed. (General) with two years Diploma in Special Education. At the event of qualified Teachers are not available, it is provided that Teachers with short training courses recognised by the Rehabilitation Council of India may be appointed on condition that such appointees would complete full course within three years of their appointment and the special allowances for such Teachers would be admissible only after completion of full course.
3.3 The petitioner's services came to be terminated on 08th February, 2012 on the ground that petitioner was not having the aforesaid qualification for the IEDSS Scheme.
Page 3 of 7 Downloaded on : Sun Jun 30 19:10:29 IST 2019C/SCA/7533/2018 JUDGMENT 3.4 Special Civil Application No.22 of 2005 before this Court, was initiated as suo motu
proceedings to decide the issue whether the Special Teachers for the disabled children were entitled to the same benefits as are given to ordinary Teachers. The said petition and other cognate petitions came to be allowed by this Court on 22nd March, 2013 and the authorities were directed to grant all the benefits to the Teachers. Then followed a contempt proceedings in the nature of Miscellaneous Civil Application No.843 of 2014. Some of the Special Teachers filed Special Civil Application No.13287 of 2014. In this proceedings of Special Civil Application No.13287 of 2014, the authorities were directed by the Court to explain gross delay caused in implementing the order dated 06th May, 2014 passed in earlier Miscellaneous Civil Application No.843 of 2014 and which came to be decided on 10th November, 2017.
3.5 While this process was underway, in the meantime, in the year 2016-17, the petitioner obtained the requisite qualification required to become a Teacher under IEDSS Scheme. The authorities took up the case of other similarly 168 Teachers in light of the aforementioned order dated 10th November, 2017 passed in Special Civil Application No.13287 of 2014, but as far as the case of the petitioner was concerned, it was rejected on the ground of petitioner having not got the requisite qualification.
4. Petition was contested by the respondent Page 4 of 7 Downloaded on : Sun Jun 30 19:10:29 IST 2019 C/SCA/7533/2018 JUDGMENT No.3 by filing affidavit-in-reply. It was stated that the petitioner was appointed initially in the old scheme in the year 2009, while the IEDSS Scheme came into force with effect from 01st April, 2009, for which the qualification for becoming Teacher was prescribed. It was contended that since the petitioner was only H.S.C. passed plus Diploma in Special Education, hence on the ground that petitioner does not possess the qualification required to become Teacher under IEDSS Scheme, order was passed rejecting the candidature of the petitioner. It was harped that the petitioner was not qualified for the post, hence was not retained in service.
5. In addition to the aspect that the petitioner was never offered any opportunity to defend his case before he was driven out from service on the alleged ground that he did not have the requisite qualification, it has to be noted that the petitioner has already obtained the requisite qualification when the impugned order came to be passed.
5.1 The condition was that in order to continue in IEDSS Scheme which was newly introduced, the requisite qualification could be obtained within three years. This condition however was relaxed in case of similarly situated Teachers. They were taken back in service inspite of their acquiring qualification after period of three years. This aspect is conspicuously not denied. The condition was Page 5 of 7 Downloaded on : Sun Jun 30 19:10:29 IST 2019 C/SCA/7533/2018 JUDGMENT that in case qualified Teachers were not available, Teachers with short training courses recognised by Rehabilitation Council of India, could be appointed with condition that they would complete the course within three years from the appointment, was thus relaxed.
5.2 Once the condition was relaxed for the similarly situated Teachers and they were taken as Special Teachers in IEDSS Scheme even though they had acquired the qualification after period of three years, the necessary inference is that the authorities treated the condition to be not mandatory. Since the petitioner was already in the earlier Scheme and was a qualified Special Teacher, while retaining him in the subsequently introduced Scheme, condition put was that he must acquire the requisite qualification.
6. The petitioner has already acquired the said qualification. On the date of passing of the impugned order, the petitioner has acquired the required qualification as per the IEDSS Scheme. The termination of petitioner's services on the ground of having not in possession the requisite qualification was arbitrary and irrational and in violation of Articles 14 and 16 of the Constitution.
6.1 As a result of the above discussion, this petition deserves to be allowed. Order dated 20th November, 2007 passed by respondent No.3 herein is quashed. The respondents authorities are commanded Page 6 of 7 Downloaded on : Sun Jun 30 19:10:29 IST 2019 C/SCA/7533/2018 JUDGMENT and directed to take back the petitioner in service since the petitioner is eligible to be appointed as Special Teacher in IEDSS Scheme. The petitioner shall be taken back with all consequential benefits including continuity of service, however on the principle of no-work-no-pay, petitioner shall not be paid the remuneration for the interregnum. Necessary orders for taking the petitioner back in service shall be issued by the respondents within 10 days from the date of receipt of writ of the present order.
7. Petition stands allowed in the aforesaid terms. Rule is made absolute accordingly.
Direct service is permitted.
(N.V.ANJARIA, J) Anup Page 7 of 7 Downloaded on : Sun Jun 30 19:10:29 IST 2019