Gujarat High Court
Chandrikaben Shantilal Patel vs State Of Gujarat & 7 on 22 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3619/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3619 of 2016
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CHANDRIKABEN SHANTILAL PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 7....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM ,ASST. GOVT. PLEADER for the Respondent(s) No. 1
MS. VYAS, Ld. Advocate for the Respondent(s) No. 7 - 8
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/03/2016
ORAL ORDER
1. Rule returnable forthwith. Mr. Goutam, the learned AGP, waives service of notice of rule for and on behalf of the State- respondents. Ms. Vyas, the learned advocate, waives service of notice of rule for and on behalf of the respondents Nos.7 and 8.
2. By this writ application under Article 226 of the Constitution of India, the petitioner, serving as a teacher in the primary section of the school run and managed by the respondent No.5, and on the verge of retirement, has prayed for the following reliefs;
"(a) to quash and set aside the order dated 11.12.2013 passed by the Director of Primary Education as per Annexure-L and be further pleased to direct the respondent authorities to absorb the petitioner in the Direct Payment Scheme and to grant all the other consequential benefits as may be admissible to the Page 1 of 13 HC-NIC Page 1 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER teacher in the granted primary school;
(b) to direct the respondent authorities to accept the contribution of the petitioner towards General Provident Fund from 31.5.2004 onwards and further to deduct the amount of GPF from the salaries of the petitioner by treating her as employee of the granted school;
(c ) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondent authorities to pay the regular salary to the petitioner under the District Payment Scheme;
(d) to grant any appropriate and just relief/s"
3. I need not go into the merit of the matter and even narrate the facts which led to the filing of this petition because the issue stands squarely covered by judgment and order dated 16th July, 2015 passed in Special Civil Application No.7806 of 2014 and Special Civil Application No.7807 of 2014 respectively. I may only say that the two petitioners of the above referred two petitions, and the petitioner herein, were recommended for their placement in the direct payment scheme by the Director of Primary Education to the State Government by a proposal dated 20th October, 2014. The two petitions referred to above were allowed in the following terms;
"Since the issues raised in both the captioned writ- applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
By this writ-applications under Article 226 of the Constitution of India, the petitioners - teachers have prayed for the following reliefs :
(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the 11.12.2013 Page 2 of 13 HC-NIC Page 2 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER passed by the Director of Primary Education and the order dtd. 3.4.2008 passed by the District Primary Education Officer and further be pleased to direct the authorities to pay the salary under Direct Payment Scheme and the other benefits as may be admissible in the granted school;
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to accept the amount towards General Provident Fund from 2004 onwards and further to deduct the amount of GPF from the salaries of the petitioner by treating her as an employee of granted school;
(C) Pending admission, hearing and final disposal of this writ petition, Your Lordships may be pleased to direct the respondents to pay the regular salary under Direct Payment Scheme to the petitioner every month as per the rules;
(D) Be pleased to pass such other and further relief as may be deemed fit by Your Lordships in the facts and circumstances of the case and in the interest of justice.
The facts of the case may be summarised as under :
The petitioner of the Special Civil Application No.7806 of 2014 came to be appointed as an Assistant Teacher on 4th October 1990, whereas the petitioner of the Special Civil Application No.7807 of 2014 came to be appointed as an Assistant Teacher on 4th March 1985 in the respondent no.5 School. They were appointed in the Non- Granted classes of the primary section according to the Schedule-F of the Bombay Primary Education Regulations. They possess the qualifications of S.S.C., P.T.C. The respondent no.5 School is also running Std.V to VII, wherein two classes were given the recognition with the facility of grant.
It appears that the respondent no.2, vide letter dated 12th February 1998, clarified that in the event of the retirement of the employees in the Granted school, the employees from the Non-Granted schools could be Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER absorbed in the Granted classes on the basis of the seniority and their salaries would be under the Direct Payment Scheme.
In the respondent no.5 School, two teachers, viz. Smt.B.S.Dhruv and Smt.K.L.Mahant, reached the age of superannuation and, therefore, the School forwarded a proposal to the District Primary Education Officer for absorption of the petitioners in the Granted classes considering their qualifications.
The District Primary Education Officer passed an order dated 22nd July 2004 to absorb the petitioners in the Granted classes of the School.
It appears that the order passed by the District Primary Education Officer dated 22nd July 2004 was approved by the District Education Officer, Panchmahals, by his letter dated 14th October 2014. By the said letter, the appointment of the petitioners for the purpose of grant was approved by the District Education Officer.
One Smt.Chandrikaben Patel objected to the absorption of the petitioners in the Granted classes and the District Primary Education Officer straightway accepted the objections raised by Smt.Chandrikaben and cancelled its earlier order by passing the impugned order dated 5th December 2005.
It appears that Smt.Chandrikaben Patel was possessing the qualifications of B.A., B.Ed. Such qualifications are termed as untrained for the purpose of primary school. Although she was appointed along with the petitioners, yet the respondent no.5 forwarded the proposal of P.T.C. qualified teachers, i.e. the petitioners, according to the seniority list.
The petitioners challenged the order dated 5th December 2005 passed by the District Primary Education Officer by filing Application Nos.135 and 136 of 2005 respectively before the Gujarat Primary Education Tribunal. The Tribunal, vide order dated 12th December 2006, quashed and set-aside the order dated 5th December 2005.Page 4 of 13
HC-NIC Page 4 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER It appears that even after the order of the Tribunal, the petitioners were not being paid the salary under the Direct Payment Scheme and, therefore, they had to file Special Civil Application Nos.25427 and 25428 of 2007 respectively before this Court, which came to be allowed vide order dated 5th October 2007. The order dated 5th October 2007 reads thus :
Heard learned advocate Ms.Mamta Vyas on behalf of the petitioners. The District Primary Education Officer has passed an order on 22/7/2004. petitioners are covered by the Direct Payment Scheme. That order has been set aside by the District Primary Education Officer by order dated 5/10/2005 against which the application was made by the petitioner before the Gujarat Primary Education Tribunal, Ahmedabad being Application No.135 of 2005 and 136 of 2005 where on 12/12/2006 the Tribunal has set aside the order of the District Primary Education Officer dated 5/12/2005 and also set aside the order of Management dated 15/12/2005, meaning thereby that petitioners are deemed to be considered a member of Direct Payment Scheme. The Tribunal has kept open for the District Primary Education Officer to pass a fresh order after giving opportunity of hearing to the petitioners as well as Management.
Learned advocate Ms.Mamta Vyas submitted that till date no fresh order is passed by the District Primary Education Officer but difficulty which has been faced by the petitioner is that they are without salary because payment is not made by District Primary Education Officer in favour of the petitioner. Therefore, representation is made on 9/7/2007 by the petitioners to the District Primary Education Officer, Godhra. Learned advocate Ms.Mamta Vyas submitted that till date, no response is given by the District Primary Education Officer, Godhra and no payment is made to the petitioners.
Therefore, in view of the aforesaid background, it is directed to the District Primary Education Officer, Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER District Panchayat, Godhra, first to comply with the order passed by the Tribunal, if, so far, has not been challenged by the District Primary Education Officer, Godhra as early as possible and decide the representation made by the petitioners on 9/7/2007 and pass appropriate reasoned order in accordance with law within a period of one month from receiving the copy of the said order. The net result of the Tribunal order is that the petitioners are a member of Direct Payment Scheme. The District Primary Education Officer must have to consider this aspect when order in question is not challenged so far by the District Primary Education Officer.
In view of the above observations and direction, present petitions are disposed of without expressing any opinion on merits of the matter.
However, in case, if, ultimate decision of the respondent authority is against the petitioners, it is open for the petitioners to challenge the same before appropriate forum in accordance with law. Direct service is permitted.
Inspite of the aforesaid order passed by this Court, the District Education Officer, vide order dated 3rd April 2008, confirmed the order dated 5th December 2005. In the order passed by this Court referred to above, it was specifically directed that the Government shall first comply with the order of the Tribunal and pay the salary. Since the order was not complied with, the petitioners had to file Misc. Civil Applications and, thereafter, the Government paid the salary for the period between 22nd July 2004 and 3rd April 2008.
The petitioners, thereafter, challenged the order of the District Primary Education Officer dated 3rd April 2008 by filing an appeal before the respondent no.2, the Director of Primary Education.
Since the appeals were not heard for a period of more than five years, the petitioners had to file Special Civil Application Nos.12970 and 12971 of 2013 respectively before this Court. A learned Single Judge, vide order dated 24th September 2013, allowed the petitions Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER directing the respondents to decide the appeals. The appeals were ultimately heard and the same were dismissed vide the impugned order dated 11th December 2013.
Ms.Mamta Vyas, the learned advocate appearing for the petitioners submitted that the Director of Primary Education failed to consider an important question of fact that the appointments of her clients were made according to the rules and regulations and the same were approved by the Director of Primary Education. She submitted that the authority failed to consider the fact that two posts had fallen vacant on account of the retirement of two teachers and, therefore, the proposal was sent to the District Primary Education Officer who, after verifying the record, passed an order dated 22nd July 2004 granting permission in favour of the respondent no.5 to absorb the petitioners herein in the Granted classes.
In such circumstances referred to above, Ms.Vyas prayed that the reliefs as prayed for in these petitions be granted.
On the other hand, these writ-applications have been vehemently opposed by Mr.U.M.Shashtri, the learned advocate appearing for the respondent no.3 District Primary Education Officer and the learned AGP appearing for the respondent State of Gujarat. The learned counsel appearing for the respective respondents have placed reliance on the affidavit-in-reply filed on behalf of the respondent no.2. I may quote the averments made in paras 6 to 10 of the affidavit-in-reply as under :
6. I respectfully say and submit that the present petitioner is teacher in the primary school run by Lunavada Kalavani Mandal. I further say and submit that the private primary school non grant in aid by the Government. Therefore, the present petitioner cannot be given any benefit which are available to the grant in aid primary school. I further say that even their original appointment dated 04.03.1990 is given by the Lunavada Kelavani Mandal and not by the Government. I further say that the salaries of the said teachers were being paid bny the Page 7 of 13 HC-NIC Page 7 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER Lunavada Kelavani Mandal from their own fund. The Government is not liable to pay the salary as the petitioner is associated with non grant in aid Primary School. I respectfully say that the present petitioner vide a letter dated 12.02.1998 requested the director of primary education to accommodate the petitioner from non granted to granted school.
However, to accommodate the petitioner was not in consonance with the Schedule-F of Mumbai Primary Education Rules, 1949 and as per Government Resolution passed by the Education Department, State of Gujarat dated 18.06.1999, the office of the Director of Primary Education has rejected the said application vide a circular dated 05.02.2002 and 20.12.2005.
7. I respectfully say and submit that in spite of the aforesaid clear rejection by the office of the Director of Primary Education with a circular dated 05.02.2002, the District Primary Education Officer, Panchmahals has passed the order dated 22.07.2004 by which the petitioner was accommodated from non granted to grant in aid which is against the statutory provisions as per Schedule-F and also against the Government Resolution of the Education Department and therefore, the said decisions of the District Primary Education Officer, Panchmahals was required to be rejected and accordingly it is rejected by their own order dated 05.12.2005.
8. I respectfully say and submit that the Standard 1 to 4 of the S.K.High School (Primary Section), Lunavada is different from Standard 5 to 7 of the said school. I further say that Standard 1 to 4 are non grant in aid whereas Standard 5 to 7 are grant in aid by the Government. Both the Standards i.e. 1 to 4 and 5 to 7 are independent and isolated to each other as far as grant in aid is concerned. The teachers were teaching in the 1 to 4 standards cannot directly accommodated in the grant in aid part. I further say that there is no such provisions for accommodation from non grant in aid. However, as the petitioner was not heard while passing the order dated 05.12.2005, the Tribunal has caused and set-aside the District Primary Education, Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER Panchmahal dated 05.12.2005. Thereafter, the District Primary Education Officer, Panchmahal has heard the petitioner and thereafter passed the order dated 03.04.2008. The order dated 03.04.2008 was challenged by the petitioner before this court and this Honble Court has directed to pay the petitioner for the period starting from 22.07.2004 to 03.04.2008 as per the payment to be paid as grant in aid class as the petitioner has worked in the grant in aid part. I further say that pursuant to the order of this Honble Court, the petitioners were being paid the salary by the Government for the aforesaid period. However, there was no such order passed by the Government to take non grant in aid teachers of the non grant in aid to the grant in aid schools as there is no such provision or policy available with the State Government.
9. I respectfully say and submit that thereafter, the petitioner has again made a representation dated 15.12.2008 to the office of the deponent. The office of the deponent vide order dated 11.12.2013 rejected the representation after hearing them on 24.09.2013. I further say that till today the petitioner has not challenged the order dated 11.12.2013.
10. I respectfully say and submit that the petitioner is trying to take advantage of order passed in Special Civil Application No.3694 of 2011. However, it is pertinent to note at this stage that in Special Civil Application No.3694 of 2011 no reply was filed by the respondent authority. Therefore, the aforesaid legal as well as factual position could not be presented before Honble Court. I further request this Honble Court to decide the present Special Civil Application in light of the present affidavit and considering the Government Policy.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the authority committed any error in passing the impugned order.
Page 9 of 13HC-NIC Page 9 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER I am not at all impressed by the submission canvassed on behalf of the respondents that Std.I to IV and Std.V to VII are two separate units. It appears from the materials on record that Std.I to VII is considered as one unit and the appointment of the petitioners were made in accordance with the rules. I am also not impressed by the submission that there is no provision under Section 106 of the Schedule F that if the appointment is made in the Non-Granted school, then a teacher cannot be given appointment in the Granted classes. What is important is the legality and validity of the appointment. When recognition is being granted under the Primary Education Act, it is never granted with a clarification that the same is with the facilities of the Grant-in-Aid. The recognition is always first given without any facilities of grant and later on the Government passes appropriate orders extending the facilities of grant according to the necessity and need of the school in a particular area.
I may quote with profit the observations made by a learned Single Judge of this Court in the case of Hasumatiben B.Patel v. State of Gujarat and others, Special Civil Application No.3694 of 2011 decided on 5th October 2011, 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 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 Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER 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 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 Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER of the Tribunal.
This petition is allowed and impugned order dated 11.01.2011 passed by the Gujarat Primary Education Tribunal is hereby quashed and set aside with a direction to the respondent authorities to include name of the petitioner in the direct payment scheme with effect from 01.11.2008 in place of Smt. Hemaben H. Naik, who retired from respondent-school on 31.10.2008 and to grant her other consequential and incidental benefits in accordance with law within a period of 4 months from the receipt of the writ of this order.
In view of the aforesaid discussion, the impugned orders dated 11th December 2013 and 3rd April 2008 respectively are quashed and set-aside. The respondents are directed to pay the salary of the petitioners under the Direct Payment Scheme and also the other benefits as may be admissible in a Granted school.
Rule made absolute to the aforesaid extent."
4. It appears from the materials on record that out of three teachers which includes the petitioner herein, the petitioner of the disposed of petition was appointed five years later than the petitioner herein, namely, Smt. Gitaben Manilal Patel. Before the case of the petitioner herein could be considered, the two petitioners of the earlier two petitions, namely, Minaxiben Bhulabhai Patel and Gitaben Manilal Patel came before this Court and succeeded. The petitioner herein should also succeed on the same footing.
5. While allowing the two writ applications referred to above, I referred to and relied upon the judgment of this Court rendered in Special Civil Application No.3694 of 2011 decided on 5th October, 2011. I am told that the letters patent appeal filed by the State Government against the said judgment has Page 12 of 13 HC-NIC Page 12 of 13 Created On Thu Mar 24 02:21:32 IST 2016 C/SCA/3619/2016 ORDER been dismissed.
6. In view of the above, this writ application also succeeds and is allowed. The respondents are directed to pay the salary of the petitioner under the direct payment scheme and also the other benefits as may be admissible in a granted school within a period of four weeks from the date of receipt of the writ of the order. I do not find any merit in the submission of the learned AGP as regards the delay in approaching this Court. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Mar 24 02:21:32 IST 2016