Gujarat High Court
Kiritben Ishwarlal Desai vs State Of Gujarat & 3 on 5 May, 2016
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/27351/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 27351 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KIRITBEN ISHWARLAL DESAI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR. BHAVIK A RAMANI, ADVOCATE for the Petitioner(s) No. 1
MR. DIVYANG A RAMANI, ADVOCATE for the Petitioner(s) No. 1
MS VRUNDA SHAH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 2
MR BAIJU JOSHI, ADVOCATE for the Respondent(s) No. 4
MR RUTVIJ M BHATT, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 05/05/2016
ORAL JUDGMENT
The petitioner has preferred the present petition for the following reliefs:
Page 1 of 9HC-NIC Page 1 of 9 Created On Thu Aug 11 04:04:50 IST 2016 C/SCA/27351/2007 JUDGMENT "(A) YOUR LORDSHIPS may be pleased to admit and allow present petition with costs;
(B) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction by quashing and setting aside the impugned order dated 27.8.2007 as per Annexure-B passed by the respondent no.1 as being arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India and further be pleased to direct the respondents to pay regular monthly salary of the petitioner in 5th Pay Commission with effect from 1.1.1996 and release all the benefits of higher grade pay scale and further be pleased to declare that as the petitioner is appointed legally and validly with effect from 5.9.1984 and entitled to get all the benefits of pension scheme prevailing at the time of appointment of the petitioner.
[C] YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction, by staying the impugned order dated 27.8.2007 as per Annexure- B and consequential order dated 14.9.2007 as per Annexure-C and further be pleased to direct the respondent not to change any condition of service of the petitioner and not to withhold the regular monthly salary in any manner pending admission, hearing and final disposal of the present petition;"
2 The background facts giving rise to this petition are that the petitioner was appointed as Assistant Teacher in Respondent No.4 School on 5th September, 1984 after following the due procedure of selection upon the approval Page 2 of 9 HC-NIC Page 2 of 9 Created On Thu Aug 11 04:04:50 IST 2016 C/SCA/27351/2007 JUDGMENT granted by Respondent No.3-District Primary Education Officer on permanent basis. Respondent No.4 School is a grant-in-aid private primary, middle, secondary and higher secondary school and Respondent Nos.1 to 3 are giving 100% grant including the grant under direct payment of salary scheme. Respondent No.4 gave a notice dated 14.5.1990 to the petitioner stating inter alia that salary of one Assistant Teacher was disallowed because of audit objection. Till then the petitioner was paid salary under Direct Payment of Salary Scheme and thereafter the authorities stopped paying the salary to the petitioner under DPS scheme with effect form 1.9.1992. The petitioner approached Gujarat Primary Education Tribunal by filing application/appeal bearing No.179 of 1990 and 4 of 1990. The Tribunal quashed and set aside order of respondent no.4-school and reinstated the petitioner with full back wages and with continuity of service on the original post. The petitioner thereafter made representations to respondent no.4-school to pay her salary as per the recommendations of 5th Pay Commission, but the same was not considered.
3 The petitioner earlier approached this Court by filing Special Civil Application No.17481 of 2006 for including her name in the DPS Scheme. During the course of hearing of the petition, it was pointed out that one post had fallen vacant in respondent no.4-school on account of retirement of one Smt. Prafullaben J Shah retired on 31st October 2000 on attaining the age of superannuation. It was submitted on behalf of respondent no.4-school that the present petitioner could have been accommodated vice said Smt. Prafullaben Shah on her retirement and included the petitioner under DPS Scheme. The proposal sent by the school on 5.3.2001 was rejected by Page 3 of 9 HC-NIC Page 3 of 9 Created On Thu Aug 11 04:04:50 IST 2016 C/SCA/27351/2007 JUDGMENT Respondent no.3. It was therefore thought fit and expedient by this Court that the State Government decides the issue independently on merits after giving opportunity of hearing to the petitioner as well as school management. The school management was given liberty to point out the ground for acceptance, if any, and at that time it may also be pointed out by showing past instances for acceptance of the proposal by the Director or the State Government, as the case may be, if any. In compliance of the aforesaid direction, the petitioner as well as respondent no.4 were heard and by order dated 27th August 2007 a decision is taken whereby the petitioner is ordered to be accommodated in place of Mrs Prafullaben Shah with effect from 5th March 2001 as a Vidya Sahayak in view of the Government Resolution dated 11th June 1998 bearing No.PRE/10496/027(98K) and Education Department Resolution dated 18.05.1999 on condition inter alia that the petitioner would get fixed salary of Rs.5,200 as Vidya Sahayak for a period of five years with effect from 5.3.2001. The petitioner has challenged aforesaid decision dated 27.08.2007 in this petition.
4 I have heard Mr Ramani, learned advocate for the petitioner, Ms Vrinda Shah, learned Assistant Government Pleader for respondents no.1 and 2, Mr Rutvij Bhatt, learned advocate for respondent no.3 and Mr Baiju Joshi, learned advocate for respondent no.4.
5 It is contended by Mr Ramani, learned advocate for the petitioner that the petitioner was appointed as Assistant Teacher with effect from 5th September, 1984 after following the due procedure of selection and upon the approval granted by Respondent No.3-District Primary Education Officer on Page 4 of 9 HC-NIC Page 4 of 9 Created On Thu Aug 11 04:04:50 IST 2016 C/SCA/27351/2007 JUDGMENT permanent basis. The salary of the petitioner was paid under DPS Scheme till May 1990 when audit objection was raised about the so called irregular appointment of the petitioner. He further submits that there are past instances wherein services are regularised upon retirement of teachers. He has placed reliance on the decision dated 16th July 2015 rendered in Special Civil Applications No.7806 and 7807 of 2014 and urged that the present petition may be allowed.
6 Ms Vrinda Shah, learned Assistant Government Pleader has adopted the averments made in the affidavit-in-reply, more particularly paragraph 13 thereof, which reads as under:-
"After the directions of the Hon'ble Court dated 7.2.2006, the respondent no.3 and 4 and the petitioner were heard personally and after hearing the parties, a speaking order dated 27.8.2007 was passed. As there is no provision in the Government to look into the long tenure of service of the employee to keep continue the petitioner in service. Therefore, looking to the long tenure of service of the petitioner was given the benefit of G.R. Dated 18.6.1999 of the Education Department and appointment was given as Vidhya Sahayak is just and proper."
7. The admitted facts which are palpable on record are that in the year 1984 respondent no.4-management initiated the procedure for appointment of Teachers in the Primary Education section of their school. Before initiating the procedure, the requisite approval was obtained from the respondent no.2. The petitioner along with other candidates Page 5 of 9 HC-NIC Page 5 of 9 Created On Thu Aug 11 04:04:50 IST 2016 C/SCA/27351/2007 JUDGMENT applied to the post in response to advertisement and cleared the viva voce test wherein representative of respondent no.2 was also present. The petitioner was duly selected and was appointed on 5th September, 1984 and she started getting her salary under DPS Scheme as respondent no.4 is a grant-in-aid school. In the year 1990 an office objection was raised and as a result thereof the petitioner was disallowed from DPS Scheme. This Court in somewhat similar facts in the case of Gitaben Manilal Patel v. State of Gujarat & Ors. rendered in Special Civil Application No.7806 of 2014 has directed the Department to pay the salary under DPS Scheme and also other benefits as may be admissible in a Grant in Aid school. The learned counsel for the petitioner has also relied upon the decision of this Court in the case of Hasumatiben B Patel v. State of Gujarat & Ors., rendered in Special Civil Application No.3694 of 2011 decided on 5th October 2011 wherein, in paragraph 8.4 it is observed as under:
"8.4 The above noted facts remained undisputed, but under no circumstances, it can be said that pursuant to introduction of scheme of recruitment of Vidhya Sahayak in the recognized private primary schools by Government Resolution dated 18.06.1999, the vacancy of a teacher arising in the private primary school is required to be filled up by appointment of Vidhya Sahayak, and the right which is already accrued in favour of the petitioner since her joining in the service as a primary teacher in a granted private primary school for being included in direct payment scheme upon a vacancy which has arisen due to superannuation and/or resignation of the teacher, is in no manner affected. If Page 6 of 9 HC-NIC Page 6 of 9 Created On Thu Aug 11 04:04:50 IST 2016 C/SCA/27351/2007 JUDGMENT the Government Resolution is seen, it is applicable prospectively in the case of candidates, who will be appointed as Vidhya Sahayak and for such candidates relevant conditions contained in the above Government Resolution will be applicable. That clause 3 of the Government Resolution dated 18.06.1999 issued by the Department of Education, State of Gujarat, clearly stated that earlier resolutions dated 11.06.1998 and 31.08.1998 will remain unaffected. That any change in the policy with regard to method of payment of salary of Vidhya Sahayak shall have no bearing on the service conditions of the petitioner, who was appointed as early as on 20.07.1990. That similarly situated persons and teachers appointed along with the petitioners are given benefits of direct payment scheme, upon retirement of teacher as per seniority, and therefore, reliance placed by the learned advocate for the private respondent as well as learned AGP on subsequent circular dated 05.02.2002 and 20.12.2005 about cancelling earlier instructions of Director, Primary Education dated 12.02.1998 cannot be applied and has no bearing on the case of petitioner. When the appointment of the petitioner was made, no objection certificate was given by the competent authority and upon undertaking valid selection procedure she was appointed and after rendering about 32 years of service in grant-in-aid primary school and one of her service conditions with regard to payment of salary etc was governed by Government Resolutions dated 18.01.1991 and 09.04.1991 applicable to the teacher like the petitioner and further other similarly situated teachers who were Page 7 of 9 HC-NIC Page 7 of 9 Created On Thu Aug 11 04:04:50 IST 2016 C/SCA/27351/2007 JUDGMENT appointed along with the petitioners were given benefit of direct payment scheme, and therefore, she cannot be discriminated for receiving salary under direct payment scheme and the said denial would result into depriving her of benefits of regular pay scale available to her from time to time. That any such denial would not only be unreasonable, but also violative of right of the petitioner for equality and equal treatment in the matter of public employment guaranteed under Articles 14 and 16 of the Constitution of India, and therefore, the order impugned passed by the Tribunal is contrary to law and deserves to be quashed and set aside. However, the contention about lack of jurisdiction under Section 40E of the Bombay Primary Education Act is not the vital aspect for rendering decision on merit as considered herein above and that the petitioner herself has invoked jurisdiction of the Tribunal."
8 The aforesaid observations are squarely applicable to the facts of the present case. I am of the view that while considering the case of the petitioner pursuant to the direction of this Court in Special Civil Application No.17481 of 2006 the respondent authorities have wrongly applied the provisions of the Government Resolutions dated 18.06.1999 and 11.06.1998 to appoint the petitioner as Vidya Sahayak from 05.03.2001 ignoring the fact that the petitioner was appointed by respondent-school after due procedure and it was only because of an office objection that the issue of appointment being irregular has cropped up.
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C/SCA/27351/2007 JUDGMENT
9 In view of the above,the present petition is allowed. The
impugned order dated 27.08.2007 passed by respondent no.1 is hereby quashed and set aside. The respondents are directed to include the name of the petitioner in the DPS Scheme with effect from 05.09.1984 and also extend the consequential benefits as may be admissible to her from time to time. Rule is made absolute. No order as to costs.
Sd/-
(A.G.URAIZEE, J.) mohd Page 9 of 9 HC-NIC Page 9 of 9 Created On Thu Aug 11 04:04:50 IST 2016