Gujarat High Court
Ramilaben Bhagvandas Patel vs State Of Gujarat & 2 on 14 December, 2015
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/20271/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20271 of 2015
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RAMILABEN BHAGVANDAS PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR BHAVESH J PATEL, ADVOCATE for the Petitioner(s) No. 1
MR. RADHESH Y VYAS, ADVOCATE for the Petitioner(s) No. 1
Mr.Rashesh Rindani, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 14/12/2015
ORAL ORDER
The petitioner herein seeks the following prayers :-
"(A) Your Lordships may be pleased to admit and allow this petition ;
(B) Your Lordships may be pleased to issue an appropriate writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order of directions to restraining the respondent authorities from giving any appointments as Head Teachers without first earmarking the post of Head Teacher for lower Primary Schools (Stv.I-V) and without first laying down the minimum qualifications required for the Head Teachers of lower primary schools as required by the statutory provisions of Section Page 1 of 7 HC-NIC Page 1 of 7 Created On Fri Dec 18 01:05:05 IST 2015 C/SCA/20271/2015 ORDER 19 and 25 read with the schedule of Right of children to Fees and compulsory Education Act, 2009.
(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions note to disturb the service of the petitioner as Head Teacher in the present primary school i.e. Juna Balvantpura Primary School in the interest of justice.
(D) During the pendency and final disposal of the petition Your Lordship may be pleased to restrain the respondent authorities from altering the service condition of the petitioner to their disadvantage in any manner.
(E) Such further and other orders be passed, directions be given and reliefs be granted as this Hon'ble Court may deem fit and proper.
The petitioner was initially appointed as Primary Teacher and is working presently as Head Teacher in Primary School from 1.11.2007. Mr. Bhavesh Patel, learned advocate appearing for the petitioner has urged that the petitioner should be protected in the same manner as other teachers who are before this Court, as she apprehends that without taking any policy decision, she would be reverted back to her original post. On being served with the advance copy, Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Dec 18 01:05:05 IST 2015 C/SCA/20271/2015 ORDER Mr.Rashesh Rindani, learned AGP appearing for the respondents No.1 and 2 has pointed out that the petitioner at an earlier point of time did not bother to approach this Court. While ensuring to abide by the Court's decision and to take policy decision in respect of all the teachers who were similarly situated, he has urged that the State admitted to continue interim relief in case of those who had earlier approached this Court, it has been requested that interim relief may not be insisted upon by the petitioner now as apprehension is misplaced. The State is likely to come out with the policy in three weeks time and till then it is quite unlikely that this is going to cause any disturbance or make a change in the present condition .
Heard learned advocate appearing for the parties.
It would be apt to reproduce the some of the observations and directions issued by this Court in Special Civil Application No. 17831 of 2014 and allied matters dated 29th September, 2015 which observed as under:-
"2. This Court on 28th April 2015 passed the following order :Page 3 of 7
HC-NIC Page 3 of 7 Created On Fri Dec 18 01:05:05 IST 2015 C/SCA/20271/2015 ORDER
1. All the petitioners are presently serving as headteachers.
Status quo has been ordered as regards the service conditions of the petitioner by this Court at the time of issuance of the notice.
2. It is pointed out to the Court that the decision of this Court rendered in Letters Patent Appeal No.296 of 2014 in Special Civil Application No.2615 of 2012 requires the State to come out with policy/change of rules.
3. It would be necessary at this stage to quote the relevant paragraphs where such necessity is specified:
32. We are therefore, of the view that instead of accepting the objections of the petitioners against providing of minimum qualification for all posts of Head Teacher, either to be filled by promotion or by direct recruit, the objection of the petitioners against the Rule providing for minimum qualification for promotion in so far as it has not fixed quota for the teachers who do not hold degree qualification could have been accepted. To that extent, we find that the judgment of learned Single Judge needs to be interfered with and modified.
33. In above such view of the matter, the impugned judgment of learned Single Judge in so far as learned Single Judge has accepted the objection against the minimum qualification prescribed for all posts of Head Teachers, either by promotion or direct recruit, for the lower primary section stands set aside and is modified to the extent that subRule 4(b) insofar as it provides for requirement of minimum degree qualification for promotion to the post of Head Teacher for lower primary section is not sustainable and is declared unreasonable and arbitrary and hence unconstitutional in absence of any provision either fixing quota in promotional avenues for the primary teachers who do not hold minimum qualification or fixing of ratio between the teachers who hold and who do not hold the minimum qualification for the purpose of promotion to the post of Head Teacher. However, it is clarified that if the Government decides to provide such quota or ratio for the primary teachers for their promotion to the posts of Head Teacher in lower primary section, it will be open to the Government to make Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Dec 18 01:05:05 IST 2015 C/SCA/20271/2015 ORDER provision of requiring more experience as and by way of further eligibility from such teachers for promotion to the posts of Head Teacher.
34. The appeals are partly allowed to the aforesaid extent only with no order as to costs.
4. Learned Government Pleader Ms. Manisha Lavkumar appearing for the State submits that serious consideration is being given to the directions of this Court and the State shall take minimum two months' period to work out modalities for carrying out such directions. She also submits that the decision of this Court rendered in Letters Patent Appeal No.296 of 2014 has been accepted and no further challenge has been made by the State. Considering the fact that all the petitioners are already protected by virtue of the order of this Court and as the State requires some time to take the decision, time of 8 weeks is being granted as requested for. All the matters to appear on Board on 29.6.2015.
5. Today, when the matters came up for hearing, learned Government Pleader Ms. Manisha L. Shah places on record communication dated 28th September 2015 addressed to her and also stated at bar that substantial progress has been achieved in duly implementing the decision of this Court rendered in LPA No. 296 of 2014. The requirement of minimum qualification for promotion to the post of Head Teacher and fixing of quota in promotional avenues for Primary Teachers who do not hold minimum qualification etc., are under process. It is her say that the State is determined to Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Dec 18 01:05:05 IST 2015 C/SCA/20271/2015 ORDER accomplish the task with promptitude. She submits further on instructions that the respondentauthority has no objection if the protection accorded by this Court at the time of issuance of notice in respect of every petitioner continues till the State comes out with a policy, pursuant to the above referred decision. According to her, the State shall notify in the Gazette the outcome in the form of rules, etc. Learned advocates appearing on behalf of the petitioners have urged that by protecting the petitioners, as done so far by virtue of order of this Court, all these petitions be disposed of by specifying the time period within which the respondentState to complete implementation of the decision of this Court.
Hearing both the sides and on considering the submissions made by learned GP so also noting the progress from communication dated 28th September 2015, all these writ petitions are being disposed of by continuing interim protection granted in favour of each of the petitioners till the State declares a policy and formulates the rules in this regard. RespondentState is directed to complete the entire process at the earliest, but not later than six months from the date of this order. Such decision, if aggrieves any of the petitioners, they shall be at liberty to approach this Court with fresh cause of action.
In wake of foregoing development, writ petitions as well as connected Civil Applications stand disposed of. Rule nisi issued in each case is made absolute in the above terms Page 6 of 7 HC-NIC Page 6 of 7 Created On Fri Dec 18 01:05:05 IST 2015 C/SCA/20271/2015 ORDER with no order as to costs."
In view of the above observations, no cause is made out. Hence, this Court has not entered into any merits of the matter and accordingly, the petition stands disposed of.
(MS SONIA GOKANI, J.) BINA Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Dec 18 01:05:05 IST 2015