Gujarat High Court
Lekhaben Kanaiyalal Swami vs Unjha Education Board & 4 on 20 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2333/2001 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2333 of 2001
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LEKHABEN KANAIYALAL SWAMI....Petitioner(s)
Versus
UNJHA EDUCATION BOARD & 4....Respondent(s)
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Appearance:
MS SADHANA SAGAR, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 3
MR RUTVIJ M BHATT, ADVOCATE for the Respondent(s) No. 1
MR SIDDHARTH H DAVE, ADVOCATE for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 2 , 4 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/06/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, serving as a part-time Lecturer with the respondent nos.1 and 2, has prayed for the following reliefs :
"(A) Your Lordship be pleased to allow the petition;
(B) Be pleased to issue a writ of mandamus or certiorari or any other writ, direction or order in nature of mandamus or certiorari directing the respondents to grant difference of salary with interest from 26-12-96 as she have served as full time lecturer in Hindi in the respondents college since 26-12-96.
(C) Be pleased to quash and set aside the order dtd. 31-3-2000 passed in Application No.66/97 before Gujarat Affiliated Colleges Services Tribunal.Page 1 of 5
HC-NIC Page 1 of 5 Created On Thu Jun 23 01:48:42 IST 2016 C/SCA/2333/2001 ORDER (D) Be pleased to stay the operation, implementation and execution of the orders passed in Application No.66/97 pending the admission and final hearing of this writ petition.
(E) Be pleased to quash and set aside the selection made by the selection committee as the same being illegal, arbitrary and against the service rules.
(F) Be pleased to pass any other further relief/s Your Lordship deems fit just and proper in the interest of justice."
It appears from the materials on record that the petitioner was appointed as a part-time Lecturer in the year 1991 on a fixed remuneration. Her grievance is that although she was appointed as a part-time Lecturer, yet she has been rendering services as a full-time Lecturer. She has prayed that she should be granted the difference of salary accordingly with interest from 26th December 1996.
It appears that in the year 1997, an advertisement was issued for appointment of a full-time Lecturer in the subject of Hindi. The petitioner applied pursuant to the same. The respondent no.5 herein also applied pursuant to the said advertisement. The respondent no.5 came to be selected, whereas the petitioner was not selected.
It appears that the petitioner challenged the action of the college and the appointment of the respondent no.5 by approaching the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad. The Tribunal, while rejecting her application, observed in the order dated 31st March 2000 as under :
"4. Considering the facts of all the above mentioned 3 matters and considering the remarks filed by respondent no.3 Commissioner of Higher Education, it is very much clear that Miss. Lekhaben Swami was appointed as a part time lecturer in the subject of Hindi in the respondent college and she had Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Jun 23 01:48:42 IST 2016 C/SCA/2333/2001 ORDER joined the respondent college with effect from 9-9-91. There is nothing on the record to show that she was appointed or working as a full time Lecturer in the respondent college. Considering her appointment letter, it is very much clear that the appointment of Lekhaben Swami was subject to the approval of commissioner of Higher Education and North Gujarat University as a part time Lecturer and she was entitled to continue in the respondent college till the workload was there. By the letter dated 5-3-97 the respondent college intimated her that the government has given approval for appointment of a full time Lecturer in the subject of Hindi and specifically mentioned in this letter that Miss. Swami was entitled to continue in the respondent college till the post was filled up by a candidate as a full time lecturer. Miss. Swami has suppressed the fact that the respondent management had published an advertisement in the daily news paper for appointment of a full time Lecturer in the subject of Hindi and that she had also appeared before the Selection Committee but unfortunately she was not selected by the Selection committee and therefore, she rushed to this Tribunal for getting stay and for giving directions to the respondent college not to appoint any person in place of Miss Swami as a full time lecturer in the subject of Hindi. The interview was held on 21-6-97 and in the said interview Mr.Chaudhari was selected as a full time Lecturer in the subject of Hindi whereas Miss.Lekhaben Swami was not selected by the selection committee and has filed Application No.66/97 wherein she has suppressed material fact that the respondent college has already appointed a person as a full time Lecturer in the respondent college after following proper procedure. Miss. Swami has mentioned in her application memo that the Government had sanctioned the post of lecturer in the subject of Hindi and as per this sanction, the respondent management was required to select a person for the post of full time Lecturer in the respondent college in the subject of Hindi from Scheduled Tribe candidates and has claimed that she is also from Scheduled Tribe community and she is entitled to continue as a full time lecturer in the respondent college. The selection committee has selected Mr.Chaudhari who was issued appointment letter on 21-6-97 and he was asked to join the respondent college with effect from 1-7-97. Miss Swami filed Application No.66/97 on 24-6-97 before this Tribunal. So, it is very much clear from the record that the selection committee has selected a person as a full time Lecturer in the subject of Hindi on 21-6-97 and issued letter of appointment on 21-6-97 to resume the duties as a full time lecturer with effect from 1-7-97. In between Miss.Lekhaben Swami filed an Application on 24-6-97 and got the interim relief. At that point of time she was having the knowledge that Mr.Chaudhari is appointed as a full time Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Jun 23 01:48:42 IST 2016 C/SCA/2333/2001 ORDER lecturer in the subject of Hindi and therefore, she rushed to this Tribunal for obtaining stay and for giving directions to the respondent college not to terminate her service and not to appoint any person except Lekhaben on the post of full time lecturer in the Subject of Hindi. Considering the remarks of the commissioner of a Higher Education, they have abolished the post of part time Lecturer in the respondent college and vacancy of full time Lecturer had taken place in the respondent college in the subject of Hindi and 39 candidates remained present before the selection committee on 2l-6-97 and Lekhaben Swami was also one of them. She was not selected by the selection committee and therefore, she preferred an application to get protection to continue as a lecturer in the respondent college. Mr.Chaudhari instead of giving an Application for being joined as a party in Application No.66/97, filed a separate application being application no. 55/98 and requested this Tribunal to grant stay and for giving directions to the respondents to permit him to join his duties as a full time Lecturer in the subject of Hindi in the respondent no. 2 college which was granted by this Tribunal by an order dated l5-4-98. However, against this order Miss. Lekhaben preferred Special Civil Application before the Hon'ble High Court and Hon'ble High Court gave directions to proceed with the matter before this Tribunal. The respondent no.4 university addressed the letter to the Commissioner of Higher Education wherein it was mentioned by the University that the matter of full time lecturer is in dispute and is pending before the Tribunal and till the disposal of the application, the appointment of Mr.Chaudhari is stayed and considering this letter of North Gujarat University of 12-8-98, Mr.Chaudhari preferred application no. 107/98 before Tribunal and as per the request of the respective lawyers, all the three matters are clubbed together and placed before this Tribunal for hearing.
5. LA Mr.M.M.Desai on behalf of respondent no.4 University has argued and drawn the attention of this Tribunal that Mr. Chaudhari was selected as a full time Lecturer after following proper procedure and he is entitled to join respondent college as a full time Lecturer.
6. After taking into consideration all the facts and documentary evidence, I have come to the conclusion that now at this stage there is only the post of full time Lecturer in the subject of Hindi in the respondent No. 2 college which was filled up after proper procedure by the Selection Committee. The Selection Committee selected Mr.Chaudhari as a full time lecturer in the subject of Hindi in the respondent no.2 college and at the same time selection committee did not select Miss. Lekhaben Swami Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Jun 23 01:48:42 IST 2016 C/SCA/2333/2001 ORDER as a full time Lecturer in the subject of Hindi. "So, the appointment of Mr.Chaudhari is proper and he is entitled to continue in the respondent No. 2 college as a full time Lecturer in the subject of Hindi and he may join the respondent No. 2 college within 15 days and it is hereby directed that Lekhaben can continue in the respondent college till the workload is there".
In view of the findings recorded by the Tribunal, I see no good reason to entertain this application. This application, therefore, fails and is hereby rejected.
(J.B.PARDIWALA, J.) MOIN Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Jun 23 01:48:42 IST 2016