Gujarat High Court
Municipal Commissioner & 2 vs Gitaben R Dattani & 2 on 20 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10825/2000 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10825 of 2000
With
SPECIAL CIVIL APPLICATION NO. 10827 of 2000
TO
SPECIAL CIVIL APPLICATION NO. 10836 of 2000
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MUNICIPAL COMMISSIONER & 2....Petitioner(s)
Versus
GITABEN R DATTANI & 2....Respondent(s)
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Appearance:
MR KV GADHIA, ADVOCATE for the Petitioner(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/06/2016
COMMON ORAL ORDER
Since the issues involved in all the captioned applications are more or less the same and the challenge is also to the selfsame order passed by the Tribunal, those were heard analogously and are being disposed of by this common judgment and order.
The petitioners, by these applications under Article 227 of the Constitution of India, seek to challenge the order passed by the Gujarat Secondary Education Tribunal at Ahmedabad dated 28th December 1999. The applications before the Tribunal were filed by the private respondents serving as the employees of the secondary schools run by the Rajkot Municipal Corporation.
Page 1 of 6HC-NIC Page 1 of 6 Created On Fri Jun 24 01:00:08 IST 2016 C/SCA/10825/2000 ORDER The grievance before the Tribunal was that they were being paid a meager salary of about Rs.500=00 despite the fact that they were all possessing the requisite qualifications for being appointed on the post. As they were apprehending termination also, they prayed that their services be protected. The Tribunal, after hearing all the party concerned, passed the order as under :
"7. I have heard the parties and gone through the record. From the pleadings and also submissions of parties, it becomes clear that the Rajkot Municipal Corporation has started 2 secondary schools in the name of Eknath Ranade Vidyalaya and Sarojini Naidu Girls School in the year 1991. The school is recognised by the deptt. but it seems that it is not being given the grant. In the said school the applicants are appointed on different posts as stated hereinabove. Some are appointed as Asstt. Teachers i.e. teaching staff and some are appointed as non-teaching staff i.e. as clerk and peons. The fact remains that all these employees are rendering their services in the school since the date of their appointments but they are being paid the fixed lumpsum remuneration which is much less than what is prescribed for regular employees. It is also become clear that all the employees are rendering their services on full time basis and they are taking full workload. It is also an admitted position that none of the applicant is appointed after following the procedure like issuing public advertisement and after obtaining NOC, holding interviews etc. The averments of applicants that they are all possessing requisite qualifications for being appointed on the said posts has not been disputed either by the school management or by the deptt. It is also admitted position that the respndt. School is a registered secondary school. No dispute is also raised that any of the employees is not working in the secondary section. I am therefore, deciding these matters on the assumption that all these employees are employed in secondary section of the respective schools.
8. The secondary education in the State of Gujarat is regulated by Gujarat Secondary Education Act, 1972. The said Act provides for the registration of the schools. Sec. 35 of the Act also provides for the procedure of appointing teaching staff i.e. teachers and head-master. Reg. 20 framed under the Gujarat Secondary Education Act provides for the qualifications for the appointment of different posts. So far as non-teaching staff is concerned, i.e. clerks and peons, there are no statutory provisions either in the Act or in the Regulations. But grant-in-Page 2 of 6
HC-NIC Page 2 of 6 Created On Fri Jun 24 01:00:08 IST 2016 C/SCA/10825/2000 ORDER aid code rule 64.1 and amended 64.2 provides for a selection committee of 5 members for the purposes of selection of non- teaching staff. Thus, for the legal and valid appointment of an employee the procedure as contemplated is required to be followed. In the instant case, as narrated hereinabove, it is an admitted position, that no such procedure is followed. Applicants were entrusted the work on different post according to their qualifications. Similarly, Reg. 24 which is a statutory regulations prescribes a provisions are regarding payscales of teaching and non-teaching staff i.e. the payscales of teaching and non-teaching staff shall be such as may be laid down by the state govt. from time to time. State Govt. has laid down the payscales for teaching staff as well as non-teaching staff. As per the provisions of these regulations every school which is registered with the Gujarat Secondary Education Board is under obligation to pay the salaries to the employees as prescribed by the State Govt. The Act or regulations recognises only 3 types of appointment i.e. temporary, appointment on probation and permanent appointment. There is no provision in the ACT regarding appointment on honorary basis on payment of honorarium as paid by the school. The contention of the school that the applicants were appointed as honorary teachers, therefore, cannot be accepted as it is unknown to and not recognised by the Gujarat Secondary Education Act. As it is in the submission that all the applicants are working on their respective posts on full time basis, on the principles of equal pay for equal work they are all entitled for receiving the full salaries and allowances as prescribed by the deptt. from the date of their appointment till such time they continue in service. The contention of the school that they are given honorarium cannot be accepted because once a school is registered with Gujarat Secondary Education Board, it is governed by the provisions of Gujarat Secondary Education Act and it is not been for a particular school or individual to prescribe different payscales or different nomenclatures. It is really surprising that the statutory body like the municipal corpn. has not followed the proper procedure and is also not paying salaries to the applicants as prescribed by the deptt. Applicants would also be entitled to receive full salaries on the principle of quantum meruit and as stated hereinabove, on the principle of equal pay for equal work. Now coming to the contentions that the appointment of applicants is not in accordance with the rules, it has to be observed here that there is no dispute about the fact that the applicants are not appointed in accordance with rules. I have already narrated hereinabove that there are rules and guidelines for recruitment and if any non-minority school wants to make appointment of any employee, it is first obliged to obtain NOC from the deptt. and then only further procedure can be undertaken. In the Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Jun 24 01:00:08 IST 2016 C/SCA/10825/2000 ORDER instant case, admittedly that is not done and therefore, I am of the view that the appointments of the applicant is not in accordance with rules and therefore, atleast the teaching staff would not be entitled for protection of Sec. 36. In so far as non teaching staff is concerned, there are no statutory rules regarding recruitment but the provision is made in Rule 64.1 and 64.2 of grant-in-aid code which is in the nature of administrative instructions and therefore, in cases of non- teaching staff the appointments can be reconsidered as irregular which is subject to regularisation and hence in those cases they will be entitled for summary procedure of protection u/s.36 of the Act. The contention of the school that as the applicants are not appointed after following the rules, this tribunal does not have jurisdiction cannot be accepted because once it is shown that a person is working in the school on any of the post within the set-up of secondary section irrespective of the fact whether there is written contract of employment or not this tribunal will have jurisdiction as the employer employee relationship is established. For establishing relationship of employee and employer it is not always necessary that there should be a written contract or written order of appointment. In a given case if on the facts it is disclosed that a person is working in the school that is sufficient for this forum to consider that there is existence of master and servant or employee employer relationship and the jurisdiction of this Tribunal u/s. 38 is attracted. The objection of the school regarding jurisdiction is therefore, rejected.
9. Now the next question is with regard to the prayers for regularisation. All the applicants have prayed that their services may be regularised. In so far as this aspect is concerned, as elaborately stated hereinabove, the teaching staff i.e. Asstt. Teachers have to be appointed by a selection committee as prescribed u/s. 35 of the Act and factually it is established that none of the applicant teachers is appointed at the relevant time in accordance with the said procedure. Now when the statute has prescribed a particular selection committee and procedure for appointment, more particularly, when there is a negative provision is also made in the statute by way of Sec. 35(7) that any appointment which is made contrary to the provisions of Sec. 35 is ineffective and invalid. The prayer for regularisation of these teachers with all sympathizes cannot be granted. In so far as the non-teaching staff is concerned, that is the applicants who are appointed as clerks or peons, as stated hereinabove, there is no statutory provision prescribing the procedure of appointment but the procedure prescribed is in grant-in-aid code rules 64.1 and 64.2 which do not have statutory force but are the administrative instructions. In my opinion, therefore, having regard to the fact Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Jun 24 01:00:08 IST 2016 C/SCA/10825/2000 ORDER that the applicants are working in the school since last several years with the meager remuneration of Rs.200/- and Rs.400/- and also in view of the observations made by Hon'ble Supreme Court in the case of Karnataka State Private College stop-gap lecturers Assn. vs. State of Karnataka and Ors. (AIR 1992 SC
677). I am of the opinion that this group of applicants (non-
teaching) stand fair chances for consideration of their cases for regularisation. It is well settled that the function of regularising the services is the executive function and the court should not pass orders regarding regularisation. in respect of non-teaching staff, therefore, I strongly recommend to the respndt. Munci. Corpn. and also the Education deptt. to consider the cases of peons and jr. clerks of the respondent schools the applicants before this tribunal for regularisation if on scrutiny they are found to be having the requisite qualification since beginning. it is true that ordinarily the persons who are not appointed as per the recruitment rules cannot get the benefit of regularisation but in the instant case as stated hereinabove, the employees are appointed by the Municipal Corporation way back in year 1991 and since last 8 years they are discharging their duties with a meager amount of Rs.400/- and Rs.500l- towards monthly remuneration. Having regard to this special circumstances only I have recommended the deptt. to consider their cases for regularisation on the terms that deptt. feels just and proper subject to however, their eligibility for the post and clear vacancy within ratio being available in the school.
The result of the aforesaid discussion is that these applications are partly allowed. All the applicants are held to be entitled for receiving full salaries as prescribed by the govt. from the date of their appointment till the time they work in the school on the principles of quantum meruit and the principle of equal pay for equal work. It is however open for the respnt. Corpn. to deduct the actual amount paid to them until now towards remuneration. The Corporation and Deptt. is directed to consider the cases of non-teaching staff i.e. peons and jr. clerks for regularisation in the light of observations made hereinabove. The prayers of regularisation of Asstt. Teachers is rejected. In the facts and circumstances of the case, the respondents are directed to consider the cases of applicants' Asstt. Teachers with some weightage for having worked with them for such a long time as and when the regular selection of Asstt. Teachers takes place in the school. If the school wants to terminate the services of the teaching staff, they can do so without any obligation of compliance of sec. 36 of the Act. In respect of non-teaching staff if for any just and proper reasons regularisation is not possible then it is open for the school to terminate their services but after following the Sec.36 of the Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Jun 24 01:00:08 IST 2016 C/SCA/10825/2000 ORDER Act. The directions issued hereinabove shall be complied with within a period of 3 months from receipt of this judgement. If the case of any of the applicants is already regularized, then these directions would not apply to his case. No order to costs".
Having gone through the order passed by the Tribunal and having considered the grounds raised in the applications, I am of the view that no error, not to speak of any error of law, could be said to have been committed by the Tribunal in passing the impugned orders. No interference is warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
As a result, all the applications fail and are hereby rejected. Rule/Notice discharged. Ad-interim order, if any stands vacated forthwith.
(J.B.PARDIWALA, J.) MOIN Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Jun 24 01:00:08 IST 2016