Gujarat High Court
Bhupendrakumar Shankarbhai Bariya & 15 vs Education Department & 4 on 13 September, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13967/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13967 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHUPENDRAKUMAR SHANKARBHAI BARIYA & 15....Petitioner(s)
Versus
EDUCATION DEPARTMENT & 4....Respondent(s)
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Appearance:
MR HARDIK H PANDIT, ADVOCATE for the Petitioner(s) No. 1 - 16
MR. SWAPNESHWAR GAUTAM, AGP for the Respondent(s) No. 1 - 2
RULE NOT RECD BACK for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 2 , 4 - 5
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/09/2017
ORAL JUDGMENT
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1. When the petition is called out, learned advocate for petitioner is not present.
2. It is necessary to mention that the petition was listed in yesterday's cause list i.e. 12.09.2017. Yesterday also when the petition was called out, the learned advocate for the petitioner was not present and, therefore,the Court adjourned the petition to today, so as to grant opportunity to the petitioner. However, today also no one is present for the petitioner. The petition is pending since 2008. Under the circumstances, the Court deems it proper to decide the petition on merits instead of adjourning the petition merely on the ground of absence of learned advocate for the petitioner.
3. In present petition, the petitioners have prayed, inter alia, that :
"8(B) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other appropriate writ, order by quashing and set aside the order dtd. 17/4/2007 passed by Res. no. 2 at Annexure 'B' to the petition.
(C) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing to the Respondent no.2 to grant lien as a 2 HC-NIC Page 2 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT regular primary teacher in the payscale and with the protection of the pay drawn by the petitioner by condoning delay from the date of his appointment as Vidhyasahayak. "
4. The petitioners have raised this dispute to claim lien with the District Education Committee. 4.1 The claim is raised on strength of resolution dated 23.8.1973 whereby the respondent government decided to grant benefit of lien to the persons employed in Ashram Shala. The said decision was taken with a view to ensuring continuity of employment of the persons who joined service in Ashram Shala. The decision dated 23.8.1973 was taken also with a view to reduce and arrest the rate of attrition of teachers from Ashram Shala on account of lack of security in service with Ashram Shala.
5. The petitioners claim that they joined the service at Sonipur Ashram Shala in February, 1995. After being appointed as primary teacher in the said Ashram Shala in February, 1995, the petitioner continued to work as such until 2002.
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6. It appears that somewhere in April, 2002, the respondent no.3 (District Primary Education Officer) issued an advertisement and invited applications to fillup vacancies of Primary Teachers in primary schools situate within area under his authority and jurisdiction. The post offered by advertisement issued in April, 2002 ws the post of Vidhyasahayak.
7. The petitioner/s claim that he/ they was/were eligible and qualified for being appointed as Vidhyasahayak and that therefore the petitioners applied for the said post and that he/ they came to be selected on merits and subsequently the petitioner/s came to be appointed to the post of Vidhyasahayak in April, 2002.
8. It appears that subsequently i.e. after accepting the appointment as Vidhya Sahayak the petitioners claimed lien with the District Education Committee.
9. The petitioners claimed that they are 4 HC-NIC Page 4 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT entitled for right of lien, however, the concerned authority informed the petitioners that in light of subsequent resolution dated 8.12.1999 the petitioners are not eligible for lien.
10. The petitioners claim that since they were informed that they are not considered eligible for lien in light of Resolution dated 8.12.1999, they repeatedly raised and agitated the dispute before the concerned authority, however, the authority did not give positive reply despite the fact that several other employees who are similarly placed, have been granted benefit of lien.
11. In this background, the petitioner/s filed writ petition i.e. Special Civil Application No.7689/2005 and 7691/2005 to 7706/2005.
12. The said group of petitions came to be disposed of vide order dated 29.4.2005.
13. By the said order, the Court directed the respondents to pass appropriate order in 5 HC-NIC Page 5 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT accordance with applicable policy and Rules after granting opportunity to the petitioners.
14. In that view of the matter and so as to comply the direction vide order dated 29.4.2005, the concerned authority called the petitioners for personal hearing and after hearing the petitioners and after considering written submissions filed by the petitioners, the authority passed order dated 17.4.2007 and rejected the claim of the petitioners.
15. Feeling aggrieved by the said order, the petitioners have taken out present petitions.
16. Before proceedings further it is appropriate to mention that before filing present petition against order dated 17.4.2007 the petitioners had moved petition i.e. Special Civil Application No. 22065 of 2006 because the concerned authority had, at the relevant time, rejected the claim of the petitioners on the ground of delay. The said decision was set aside by the Court vide order 6 HC-NIC Page 6 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT dated 13.10.2006 and the authority was directed to comply the order dated 29.04.2005 after hearing the petitioners. At that stage, order dated 17.4.2007 came to be passed by the Respondents.
17. From the details and averments in the petition it appears that the petitioners have placed heavy reliance on Resolution dated 23.8.1973. In addition to the said resolution dated 23.8.1973, the petitioners also seek to rely on the order dated 12.7.2001 passed by the Court in Special Civil Application No.2501 of 2001. The petitioners also have relied on the fact that certain other similarly placed employees (i.e. those who came to be appointed in Ashram Shala in 1995) are enjoying benefits of lien.
18. The learned AGP submitted that the impugned order is passed after granting opportunity of hearing to the petitioner and there is no error 7 HC-NIC Page 7 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT in the impugned order.
19. In view of the fact that the petitioners have placed heavy reliance on the order dated 29.4.2005 passed by the Court in group of petitions, it is appropriate to take into account such order dated 29.4.2005. The said order reads thus:
"Date of Order: 29/04/2005 COMMON ORAL ORDER In this group of petitions, the petitioners are agitating the question of maintenance of lien while working as "Vidya Sahayaks" in the Ashram Shala run by the private management. It is the case of the petitioners that that Government policy permits maintenance of lien in case of "Vidya Sahayaks" and this aspect has been clarified by this Court in decision dated 12072001 passed in Special Civil Application No.2506/2001. The petitioners have also stated in the petition that they represented to the authority but they have not received any reply for grant of lien, though large number of similarly situated employees have been granted such benefits.
Considering the submissions made, the respondents No.1 and 2 are directed to treat the present petition as representation of the petitioners and dispose of the same as expeditiously as possible and preferably within a period of three months from the date of receipt of copy of this order.
With these directions, all these petitions are disposed of.
Direct service is permitted."
20. Having regard to the fact that the petitioners have also placed reliance on the order dated 12.7.2001 in Special Civil 8 HC-NIC Page 8 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT Application No.2506 of 2001, it is relevant to mention that from the said order it comes out that the Court passed the said order having regard to specific facts of the case of the petitioner in said Special Civil Application No.2506 of 2001 i.e. specific facts of the case of Mr. Bharatkumar K. Solanki ( the petitioner in Special Civil Application No. 2506 of 2001) and that therefore present petitioners cannot avail benefit of said order.
21. Now, it is appropriate to turn to the G.R. dated 23.8.1973. The relevant part of said G.R reads thus:
"It has been represented to Government that teachers appointed in Ashram Schools run by the voluntary Agencies have no Security of Services, as a result of which they leave the institutions as soon as they secure better employment and consequences the work of the Ashram Schools suffer on that account. Government has carefully considered this question and has decided that such of teachers employed in the Ashram Schools run the voluntary agencies who fulfill the prescribed qualifications and experience for primary teachers of the District Education Committee under the Panchayats and who were within the age prescribed for primary teachers on the day of their recruitment in the service of the Ashram Schools should be allowed to have their lien in the services of respective District Education Committee under the Panchayat and the services of such teachers should count fully in the services of the District Education Committee from the date of Selection by the staff selection committee of the respective District Panchayat. Only those teachers of Ashram Schools who will be selected by the staff selection 9 HC-NIC Page 9 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT committee of the District Education Committee also be eligible for having their lien in the service of the District Education Committee. The rest will have no claim for absorption in the services of the District Education Committees. Those of the teachers who will be selected by the District Education Committees for absorption in their services will normally continue in the Ashram Schools and will not be allowed to join the schools of the District Education Committee unless either the Ashram Schools are closed or they have put in atleast five year services in the Ashram Schools."
22. On plain reading it comes out clear that those persons who are selected and appointed after following due procedure and who possess requisite qualification and experience are considered eligible for right of lien provided the person has completed service of 5 years or the Ashram Shala is closed and at the time when the person was appointed, the resolution was passed.
23. It has also emerged that the respondent State Government reconsidered the said Policy viz. granting lien to the employees of Ashram Shala and vide resolution dated 8.12.1999 the respondent State Government cancelled/ withdrew the policy contained in Resolution dated 23.8.1973. Consequently, vide Resolution dated 10 HC-NIC Page 10 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT 8.12.1999 the said Policy came to be discontinued.
24. At this stage, it is necessary to note that said subsequent resolution dated 8.12.1999 was subject matter of litigation and during pendency of the petition and Letters Patent Appeal, and order of injunction against operation of Resolution dated 8.12.1999 was granted by the Court.
25. It appears that subsequently proceedings was carried before Hon'ble Apex Court and Hon'ble Apex Court also stayed the operation of G.R. dated 8.12.1999 during pendency of the Special Leave Petition.
26. Unfortunately, the subsequent position with regard to the said petition is neither clarified by the learned advocate for the petitioner nor by the learned AGP. It is not clarified as to whether the said proceedings has come to an end or not and whether the said G.R. dated 8.12.1999 is approved or set aside or whether the 11 HC-NIC Page 11 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT proceedings are still pending before Hon'ble Apex Court and the injunction against operation of the said Resolution operates.
27. However, from the facts of the case it has emerged that the present petition can be disposed of without referring to or without relying on the GR dated 8.12.1999 or without entering into the controversy about said G.R dated 8.12.1999.
28. From the record it has emerged that after the petitioners came to be appointed as primary teachers in Ashram Shala, subsequently, the petitioners, on their own volition, tendered resignation from the service, and left the service as Primary teacher in Ashram Shala and took up fresh appointment as Vidhya Sahayak in other school.
29. It is pertinent that while passing impugned order dated 17.4.2007 the competent authority has made reference of the GR dated 8.12.1999 and has 12 HC-NIC Page 12 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT also made reference of the fact that operation of the said resolution was stayed and having regard to the said fact, the authority did not place reliance on GR dated 8.12.1999 and after observing that the petitioners were appointed after the Government issued Resolution dated 8.12.1999 the petitioners, therefore, cannot claim benefit under G.R. dated 23.8.1973 however having regard to the fact that the operation of the G.R. dated 8.12.1999 is stayed, the petitioners case is considered independently then also the petitioners are not entitled for right of lien, the authority decided their case.
30. So as to justify the decision the authority placed reliance on the fact that the petitioners on their own volition left service with the Ashram Shala and took up fresh employment as Vidhya Sahayak in other school and that therefore in light of the terms and conditions of GR dated 23.8.1973, the petitioners would not be entitled for the said benefits i.e. right of lien.
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31. The petitioners have failed to point out any error in the said decision. Neither from the G.R. dated 23.8.1973 nor from any other resolution or Policy decision of the Government, the petitioners could demonstrate that even if the employee of the Ashram gave up his service voluntarily and took up another employment then also the right of lien would continue.
32. From plain reading of the GR dated 23.8.1973 it comes out that the benefits of lien would be available in cases where Ashram Shala is closed down or in case whether the employee continued in the Ashram Shala and completed service of 5 years.
33. The said resolution does not contain any provision which confers and protects right of lien in favour of the employee who, though completed service of 5 years with Ashram Shala but thereafter voluntarily tendered resignation from service as primary teacher from Ashram Shala 14 HC-NIC Page 14 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT and took up another employment in different school.
34. From the resolution dated 23.8.1973, the petitioners could not point out any provision which guarantees right of lien even in respect of employee who voluntarily gives up his service as primary teachers in Ashram Shala and takes up fresh employment as Vidhya Sahayak.
35. Therefore, the claim of the petitioners does not appear justified and the impugned decision dated 17.4.2004 by the competent authority cannot be faulted.
36. In view of the fact that the petitioners have failed to point out, from Resolution dated 23.8.1973 or from any other subsequent Resolution by the Government, that the respondent have granted benefit of right of lien even to those employee who voluntarily left service of Ashram Shala and took up fresh appointment as Vidhya 15 HC-NIC Page 15 of 17 Created On Sun Oct 01 19:41:44 IST 2017 C/SCA/13967/2008 JUDGMENT Sahayak, the petition fails and deserves to be rejected. Therefore, following order is passed:
a. In light of the foregoing discussion and for reasons mentioned above, the petition is not accepted and is disposed of as rejected however, with the clarification that if the Government has framed any Policy or taken any decision whereby the primary teacher appointed with Ashram Shala takes up employment as Vidhya Sahayak after having completed 5 years as Primary Teachers in Ashram Shala, would be entitled for the said benefit i.e. right of lien, then in that event it would be open to the petitioner to submit, within reasonable time his claim to the concerned authority and competent authority will consider the case of the petitioner for the said benefits in light of applicable policy.
37. With aforesaid clarification, the petition is disposed of. Rule is discharged.16
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