Chhatbar Yasmin Agafkar vs Vahevaria Rashtriya Primary School ...

Gujarat High Court

Chhatbar Yasmin Agafkar vs Vahevaria Rashtriya Primary School ... on 4 August, 2025

                                                                                                                  NEUTRAL CITATION




                           C/SCA/2741/2013                                        JUDGMENT DATED: 04/08/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 2741 of 2013


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT
                      ==========================================================

                                  Approved for Reporting                         Yes           No
                                                                                  ✓
                      ==========================================================
                                       CHHATBAR YASMIN AGAFKAR
                                                 Versus
                        VAHEVARIA RASHTRIYA PRIMARY SCHOOL THRO PRINCIPAL & ORS.
                      ==========================================================
                      Appearance:
                      MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
                      DS AFF.NOT FILED (R) for the Respondent(s) No. 1,3,4
                      MS. SURBHI BHATI, AGP for the Respondent(s) No. 4,5,6 - STATE
                      MR MA KHARADI(1032) for the Respondent(s) No. 2
                      NOTICE SERVED for the Respondent(s) No. 7
                      NOTICE SERVED BY DS for the Respondent(s) No. 1,3
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 04/08/2025
                                                             ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocates for the respective respondents waive service of notice of rule on behalf of respective respondents. With the consent of the parties, the matter is considered at length and disposed of accordingly.

2. The present petition is filed by the petitioner for seeking the following reliefs:

NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined "9(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 order dtd. 26.6.2012 passed by the Tribunal qua the Application Nos. 63/2006 and 94/2006 as also the order of termination dtd. 21.11.2006 passed by the respondent management and further be pleased to direct the management to reinstate the petitioner on his original post with continuity of service with full backwages and interest thereon:

(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction holding that the petitioner is entitled for the pay scales of untrained teachers from the date of appointment and further be pleased to direct the management to pay the same as prayed for in the Application No. 63/2006 with interest;

(C) Pending admission, hearing and final disposal of the present petition, be pleased to direct the respondent institution to give adhoc appointment to the petitioner;

(D) Pending admission, hearing and final disposal of the present petition, be pleased to direct the respondents to reinstate the petitioner on his original post forthwith and to pay the salary regularly every month, (E) Be pleased to pass such other and further relief as Page 2 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined may be deemed fit by Your Lordships in the facts and circumstances of the case and in the interest of justice."

3. Brief facts as stated in the memo of the petition are as under:

3.1 It is the case of the petitioner in this petition that the petitioner is possessing the qualifications of SSC, TTNC and was appointed as Assistant Teacher in the respondent school on 06.02.1995. Since the respondent management was paying only Rs. 1,000/- as the salary, the petitioner and some other similarly teachers requested the management to pay the salary in the regular pay scales but since the respondent management did not consider the requests of the teachers, the petitioner filed an Application No. 63 of 2006 before the Primary Education Tribunal. It is further the case of the petitioner in this petition that since the petitioner approached the Tribunal, the management on the ground that the petitioner is an untrained teacher, terminated his services. The petitioner, therefore, again approached the Primary Education Tribunal challenging the termination order by way of filing an Application No. 94 of 2006. Both the aforesaid applications were heard Page 3 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined together and the Tribunal rejected both the matters.

Hence, the present petition has been preferred.

4. Heard Ms. Mamta Vyas, learned advocate for the petitioner, Mr. M.A. Kharadi, learned advocate for the respondent No.2 and Ms. Surbhi Bhati, learned Assistant Government Pleader for the respondents - State.

5. Ms. Mamta Vyas, learned advocate for the petitioner has drawn my attention towards various pleadings, documents annexed with the petition as well as towards the order passed by the Tribunal and has submitted that while terminating the services, though the institution is required to follow the procedure prescribed in the law but the services of the petitioner are terminated without following any procedure of law and hence the order of termination as well as the order of Tribunal are required to be quashed and set aside. She has further submitted that in fact, there are two classifications trained and untrained. If the petitioner is appointed as untrained teacher, the petitioner is entitled to get the pay scales fixed by the Government from time to time. She has further submitted that while considering the matter, the Page 4 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined Tribunal has totally overlooked the provisions of law by holding that as the petitioner is not possessing the qualifications of PTC, the petitioner is not entitled for the pay scale and no direction qua the payment of salary is ordered. Therefore, on this ground also, the order of the Tribunal is required to be quashed. She has further submitted that the Tribunal ought to have considered that the petitioner was appointed on 06.02.1995 as an Assistant Teacher by the respondent No. 2 and the petitioner worked for 11 years and 5 months and got superannuated on 31.05.2022 and at no point of time, any objection was raised by the department with regard to the appointment and qualifications of the petitioner. She has further submitted that the petitioner has specifically pointed out that out of 14 teachers except one teacher, all others are possessing the qualification of untrained teachers and no other teacher's services are terminated except the three teachers who had approached the Tribunal for regular pay scale. In support of his submissions, she has referred to the judgment of the Hon'ble Apex Court in the case of Shantiniketan Hindi Primary School Vs. Pal Hariram Ramavtar reported in AIR 2010 SC 656, and Page 5 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined has contended that even the Hon'ble Apex Court has directed that even untrained teachers are required to be paid salary as prescribed by the Government from time to time. Even this Court has by way of various orders, directed to pay salary to untrained teachers. She has also relied on the judgment of the Hon'ble Apex Court in the case of Bhartiya Seva Samaj Trust Tr. Pres. And Another Vs. Yogeshbhai Ambalal Patel and Another reported in AIR 2012 SC 3285. She has further referred to the order dated 27.06.2025 passed by this Court in similar set of facts in Special Civil Application No.12217 of 2012 and allied matter and has submitted that the present petition deserves to be allowed.

6. Per contra, Mr. M.A. Kharadi, learned advocate for the respondent No.2 has referred to the impugned order passed by the authority and has supported the same and also supported the judgment and order passed by the Tribunal by submitting that the Tribunal has not committed any error in law and, therefore, no interference is required to be called for by this Court.

He has, by referring to paragraph 6 of the impugned order, submitted that financial situation of the school is Page 6 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined not good. He has, by referring to the judgment of this Court in the case of Madresa Abbasia Society Vs. State of Gujarat reported in 2007 (1) GLH 604, submitted that when the petitioner is not having requisite qualification, the petitioner cannot claim such prayer as a matter of right, and, therefore, he has submitted that the impugned order of the Tribunal is in accordance with law and does not warrant any interference by this Court and, therefore, the present petition of the petitioner lacks merit and is required to be dismissed.

7. Ms. Surbhi Bhati, learned Assistant Government Pleader for the respondents - State has also contended that considering the order passed by the Tribunal, the Tribunal has not committed any error and as such, essentially, the dispute is between the petitioner and the respondent school and the State has limited role to play and, therefore, she has submitted that this Court may pass appropriate order after considering the submissions of the petitioner as well as respondent.

8.1 I have considered the rival submissions made at the bar. I have also considered the fact that there is no doubt that out of total 14 persons, only three persons Page 7 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined have been terminated as those three persons have approached the Tribunal for some other prayer. It also transpires that the petitioner has served more than 11 years and considering the fact that there are two different heads for the payment of salary under the specific provisions of the Act; one is untrained teachers and another is trained teachers. Therefore, even assuming that the petitioner is entitled to get salary of trained teacher, then the petitioner is required to be paid salary of untrained teacher, the Tribunal has not considered this aspect and, therefore, there is apparent error committed by the Tribunal.

8.2 Furthermore, considering the judgment of the judgment of the Hon'ble Apex Court in the case of Shantiniketan Hindi Primary School (supra), whereby it is specifically held that even untrained teachers are required to be paid salary as prescribed by the Government from time to time. It also reflects from the order of the Tribunal that the Tribunal has committed gross error in not considering various aspects and, therefore, it is fruitful to refer the judgments cited at the bar by learned advocate for the petitioner.

NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined

(i) In the case of Bhartiya Seva Samaj Trust Tr.

Press. And Another (supra), more particularly, paragraphs 14 to 22 are relevant, which read thus:

"14. In view to have greater emphasis, the 86th Amendment in the Constitution of India was made in 2002 introducing the provision of Article 21-A, declaring the right to free and compulsory education of the children between the age of 6 to 14 years as a fundamental right. Correspondingly, the provisions of Article 45 have been amended making it an obligation on the part of the State to impart free education to the children. Amendment in Article 51-A of the Constitution inserting the clause-'k' has also been made making it obligatory on the part of the parents to provide opportunities for education to their children between the age of 6 to 14 years.

15. Thus, in view of the above, it is evident that imparting elementary and basic education is a constitutional obligation on the State as well as societies running educational institutions. When we talk of education, it means not only learning how to write and read alphabets or get mere information but it means to acquire knowledge and wisdom so that he may lead a better life and become a better citizen to serve the nation in a better way.

The policy framework behind education in India is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society Page 9 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.

Every generation looks up to the next generation with the hope that they shall build up a nation better than the present. Therefore, education which empowers the future generation should always be the main concern for any nation.

16. Right to education flows directly from Article 21 and is one of the most important fundamental rights. In Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, while deciding the issue of reservation, this Court made a reference to the provisions of Articles 15(3) and 21A of the Constitution, observing that without Article 21A the other fundamental rights are rendered meaningless. Therefore, there has to be a need to earnestly on implementing Article 21A.

Without education a citizen may never come to know of his other rights. Since there is no corresponding constitutional right to higher education - the fundamental stress has to be on primary and elementary education, so that a proper foundation for higher education can be effectively laid.

NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined Hence, we see that education is an issue, which has been treated at length in our Constitution. It is a well accepted fact that democracy cannot be flawless; but, we can strive to minimize these flaws with proper education.

Democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs.

17. This Court in State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., (2011) 8 SCC 737 held as under:

"In the post constitutional era, attempts have been made to create an egalitarian society by removing disparity among individuals and in order to do so, education is the most important and effective means. There has been an earnest effort to bring education out of commercialism/merchantilism. The right of a child should not be restricted only to free and compulsory education but should be extended to have quality education without any discrimination on economic, social and cultural grounds".

18. In view of the above, education and particularly that of elementary/basic education has to be qualitative and for that the trained teachers are required. The Legislature in its wisdom after consultation with the expert body fixes the eligibility for a particular discipline taught in a school. Thus, the eligibility so fixed require very strict compliance Page 11 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined and any appointment made in contravention thereof must be held to be void.

19. In ordinary circumstances, the instant case could be decided in the light of the aforesaid backdrop. However, the Division Bench of the High Court has given full details of the teachers who had been appointed alongwith the respondent No.1 in pursuance of the same advertisement and possessing the same qualification of B.Sc.;B.Ed./B.A.;B.Ed. They are still working with the same management and some of them had been as under:

(i) Mrs. Rekhaben Virabhai Patel

(ii) Mrs. Urmilaben Chandrakantbhai Mistry

iii) Mr. Dilipbhai Naranbhai Patel

iv) Mrs. Ritaben Shaileshbhai Joshi

20. The High Court further recorded a finding that the list of such persons was merely illustrative and not exhaustive.

21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim 'allegans suam turpitudinem non est audiendus'. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. (Vide: G. S. Lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019; Narender Chadha & Ors. v. Union of India & Ors., AIR 1986 SC 638; Molly Joseph @ Nish v. George Sebastian @ Joy, AIR 1997 SC 109; Jose v. Alice & Anr., (1996) 6 SCC 342; and T. Srinivasan v. T. Varalakshmi Page 12 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined (Mrs.), AIR 1999 SC 595).

This concept is also explained by the legal maxims 'Commodum ex injuria sua nemo habere debet'; and 'nullus commodum capere potest de injuria sua propria'. (See also:

Eureka Forbes Ltd. v. Allahabad Bank & Ors., (2010) 6 SCC 193; and Inderjit Singh Grewal v. State of Punjab & Anr., (2011) 12 SCC 588).

22. Thus, it is evident that the appellant has acted with malice alongwith respondent and held that it was not merely a case of discrimination rather it is a clear case of victimisation of respondent No.1 by School Management for raising his voice against exploitation."

(ii) The order dated 27.06.2025 passed by this Court in similar set of facts in Special Civil Application No.12217 of 2012 and allied matter, more particularly, paragraphs 8.1 to 8.5 are relevant, which read thus:

8.1 I have considered the rival submissions made at the bar. I have also considered that the fact that the respondent Nos.1 to 7 are serving with petitioners as teachers. After perusing the judgment of the Tribunal, prima facie, I am of the view that there is no dispute that the respondent Nos.1 to 7 are serving with the petitioners' school, and the Tribunal has considered various aspects in the impugned order. The Tribunal has rightly considered Page 13 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined the Notification issued by Gujarat Government dated 27.09.2006 that non-granted private schools are exempted from the payment of the salaries as per Government Rules.

8.2.1 It is also fruitful to refer the Notification dated 27.09.2006 issued by Gujarat Government, more particularly, whereby Rule 106(A)(4)(v) is substituted in the Bombay Primary Education Rules, 1949, which reads as under:

"(v) The rates of tuition fees, the pay scales and allowances of the teaching staff of grant-in-aid recognised private primary school shall be such as may be approved by the Government from time to time."

Prior to the aforementioned notification of the Education Department, the following provisions were in place.

"(v) The rates of tution fees, the pay scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time."

8.2.2 Furthermore, by comparing the earlier Rule, it transpires that there is intention of the Government to exempt the private schools to pay the salary as per the Government Rules. Moreover, the Tribunal has rightly referred to Schedule F of the said Rules, more particular clause (9), which is as under:

NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined

"9. Scale of salaries:- Scales of pay and allowances payable to the teaching and non-teaching staff shall be such as may be approved by the State Government from time to time."

8.3 Furthermore, considering the judgments cited by Mr. Y.H. Motiramani, learned advocate for the petitioners in the case of Mrs. Satimbhai Sharma v/s. St. Paul S. Senior Secondary School reported in AIR 2011 SC 2926, whereby paragraphs 3 and 27 are relied on and in the cases of (i) Benson Knock Semual vs. State of Gujarat reported in 1984 (1) GLR 691, more particularly, paragraph 9 is relied on and (ii) Swaminarayan Education Trust vs. State of Gujarat reported in 1993 (2) GLR 1713. There is no dispute about the proposition of law enunciated in these judgments, but these judgments are not helpful to the petitioners in the facts of the present case.

8.4.1 It is fruitful to refer the judgment cited by learned advocate for the respondents of the Hon'ble Apex Court in the case of Swaminarayan Navsarjan Vidyalaya (supra), more particularly, paragraphs 15 and 16 are relevant, whereby in substance, there is observation of entitlement of benefit of 5th pay of teachers of non-granted private school, the said relevant paragraphs are as under:

"15. So far as the merits of present petition is concerned, the petitioner has submitted that pursuant to resolution dated 27.9.2006, respondent No.1 is not Page 15 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined entitled to benefit of 5th Pay Commission because the petitioner school is not grant-in-aid school. However, in such resolution dated 27.9.2006, nowhere it is clarified that the teachers serving in private schools are not entitled to the benefit of 5th Pay Commission. On the contrary, the resolution confirms that the rates of tuition fees, the pay-scales and allowances of the teaching staff of grant-in-aid recognized private primary school, shall be such as may be approved by the Government from time to time. Such condition has been substituted in Rule 106(A) in Sub-Rule (4) for Clause (v) of Bombay Primary Education Rules, 1949 by notification of the same date i.e. 27.9.2006. There is no other clarity on record. Whereas, the resolution of the Government dated 22.7.1980 confirms that the teachers like the respondent No.1, shall be given the same salary that has been approved for equally situated teachers as per such resolution, copy of which is produced on record at Annexure- 1, page 45. Therefore, perusal of the impugned judgment confirms that the Tribunal has taken care of such factual details and applicable Rules while deciding such applications No.65 and 66 of 2002 and confirms that the respondent is entitled to the benefit of 5th Pay Commission, practically, there is nothing on record so as to quash and set- aside such order. Whereas, the issues raised by the petitioner has also no supporting evidence and even otherwise it has no force when it is only prayed that the respondent has got service illegally because of Page 16 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined her uncle and that she is not entitled to the benefit of 5th Pay Commission because petitioner's school is not grant-in-aid school and she is not P.T.C. pass. However, the resolution dated 22.7.1980 confirms that qualification of the petitioner is proper for such job and therefore, it cannot be said that her appointment was illegal. The petitioner has also raised several minor issues regarding disclosure of the word 'High School' etc., but it has no bearing on the principal dispute between the parties.

16. It is undisputed fact that respondent has served for 32 years and that she is B.A., B.Ed. and therefore, when there is no issue regarding her initial appointment, and when there is no privilege or benefit extended by any rule to the private schools, which are not getting grant-in-aid to pay different salary than the equally situated teachers in other schools, I do not find any substance in the petition and therefore, the petition needs to be dismissed."

8.4.2 It is also fruitful to refer the judgment cited by learned advocate for the respondents in the case of Rajak Hasam Ghanchi (supra), more particularly, paragraphs 5 and 6 are relevant, whereby in substance, there is observation of entitlement of teachers of minority institution to non-granted salary as per Rules and the benefit of 5th pay of teachers of non-granted private schools, the said relevant paragraphs are as under:

NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined "5. I am of the view that this issue is no longer res integra after the pronouncement of the judgment by the Supreme Court in the case of Shantiniketan Hindi Primary School V/s. Pal Hariram Ramavtar and others, reported in AIR 2010 SC 656. The facts in the case of Shantiniketan (supra) were that Shantiniketan Educational Trust was a minority institution running two primary unaided schools, one in Gujarati medium and the other in Hindi medium in the State of Gujarat. Respondent nos.1 to 4 were working as teachers in those schools. Their services were terminated on 5th July 1996 on the ground that they had absented from duties. Against the order of termination of service they filed application before the Gujarat Primary Education Tribunal.

While they were in service they moved applications before the said Tribunal claiming parity of pay and allowances as per Government rules applicable to the Untrained Teachers. All the applications were heard together by the Tribunal and a common order was passed quashing the termination orders and directing reinstatement with full salary and other benefits from the date of termination till the date of the order with a further direction to pay the salary and other benefits applicable to Untrained Teachers as per Government rules, from the dates of their appointments. The Management filed a writ petition being Special Civil application No.6918/2001 which was dismissed by the learned Single Judge of this High Court on 19th February 2002 which was Page 18 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined affirmed by the Division Bench vide order dated 30th February 2002. Aggrieved by the same, Appeal came to be preferred before the Supreme Court by the Management.

6. Before the Supreme Court, the main contention raised by the Management was that the respondents were unqualified to hold the post and also that they were not trained teachers. Supreme Court noticed that the reason for termination of service was not that they were unqualified or untrained teachers, but that they had absented from duties. Dismissing the Appeal filed by the Management and holding that the respondents-teachers were entitled to get pay and allowances which are applicable to untrained teachers as per Government rules, Supreme Court held as under :

"5. The appellant is a recognized unaided Primary School governed by the provisions of the Bombay Primary Education Act 1947. The 1st Respondent, herein a graduate was appointed as Assistant Primary Teacher in the Hindi Medium of the School on 5.6.1987. 2nd respondent, who was possessing the qualification of SSC was appointed in the school as a Teacher for the course of Handicraft and Book binding on 8.7.1985. The 3rd respondent was appointed as Assistant Teacher in the Gujarati Medium of the school on 22.6.1986 and the 4th respondent was appointed on Assistant Primary Page 19 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined Teacher in the Gujarati medium on 5.6.1987. They were discharging their duties without any complaint from any quarters. Noticing that they were not getting the pay and allowances as per Government Rules applicable to untrained teachers, they approached the Tribunal and filed application nos.3 of 1993 and 30 of 1993 for a direction to the Management to pay the salary and allowances as per Government Rules. Apparently, irked by such demand, their services were terminated by the Management on the ground that they had absented from duty without informing the Management which amounted to gross indiscipline. The Tribunal after an elaborate discussion of the various contentions raised by the parties and also examining the provision of Bombay Primary Educational Act, 1947 and the Gujarat Amendment Rules 1978 came to the conclusion that the order of termination was bad since the Management had not followed by proper procedure in terminating their services. Further, it was also found that the respondents were entitled to get the pay and allowances as per Government Rules applicable to untrained teachers.

6. The main contention raised by the Management before us was respondents were unqualified to hold the post and lso that they were not trained teachers. We notice that the reason for termination of services was not that they were unqualified or untrained teachers but that they had absented from duties. Assuming that they had absented from Page 20 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined duties even then admittedly procedure laid down under Clause 13 and 18 of Schedule `F' of the Bombay Primary Education Rules, 1949 had to be followed before terminating their services. The Tribunal and the High Court had therefore rightly held that the orders of termination of services of the respondents was bad in law.

7. Rule 106A of the Bombay Primary Education Rules deals with the application for recognition. Sub- rule 2 of Rule 106-A states that every application under sub-rule 1 shall be sent to the authorized officer by registered post with acknowledgment due together with an undertaking in writing that the conditions of employment of teachers in the private primary schools shall be those as specified in Schedule 'F' appended to these rules. Schedule 'F' deals with the model conditions of employment of teachers in the private schools in the State of Gujarat which forms part of Rule 106A of the Rules. Clause (v) of sub-rule 4 states that no primary school shall be recognized or continued to be recognized unless the rates of tuition fee, pay-scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time. Following the above mentioned provisions, the Tribunal, on facts found that the respondents were working as teachers in the School for over ten years but they were paid only a consolidated monthly pay of Rs.724 per month, which was found to be not in accordance with rules. Tribunal in our view has Page 21 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined correctly come to the conclusion that the respondents- teachers are entitled to get pay and allowances which are applicable to untrained teachers as per Government Rules.

8. Under the above circumstances, we find no reason to interfere with the order passed by the Tribunal which was confirmed by the High Court. Further, we notice that when this court had granted stay of the judgment vide orders dated 13.1.2006, recorded the statement of counsel for the management that it had disbursed Rs. 2 lakhs towards arrears of salary. Needless to say that amount would be adjusted towards salary due to the respondents. Considering the financial difficulties pointed out by the counsel appearing or the Management and the fact that the School had to be closed down for the years 1995-96 and 1996- 97, and considering the fact that there were unauthorized absences, we are of the view that the respondents 1-4 are entitled to get only 50% of the salary and other benefits applicable to the untrained teachers as per Government Rules from the date of appointment till the date of reinstatement after adjusting the above-mentioned amount. Ordered accordingly." Thus, in view of the pronouncement of the Supreme Court judgment in the case of Shantiniketan (supra) the position of law is abundantly clear and the petitioners in the present case are entitled to the reliefs which have been prayed for in this petition."

NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined 8.4.3 It is also fruitful to refer the judgment cited by learned advocate for the respondents of the Hon'ble Apex Court in the case of Shantiniketan Hindi Primary School (supra), more particularly, paragraphs 6, 7 and 8 are relevant, whereby in substance, there is observation of entitlement of teachers of minority institution in non- granted schools to get full salary as per Rules benefit of 5th pay of teachers of non-granted private school, the said relevant paragraphs are as under:

"6. The main contention raised by the Management before us was respondents were unqualified to hold the post and also that they were not trained teachers. We notice that the reason for termination of services was not that they were unqualified or untrained teachers but that they had absented from duties. Assuming that they had absented from duties even then admittedly procedure laid down under Clause 13 and 18 of Schedule `F' of the Bombay Primary Education Rules, 1949 had to be followed before terminating their services. The Tribunal and the High Court had therefore rightly held that the orders of termination of services of the respondents was bad in law.

7. Rule 106A of the Bombay Primary Education Rules deals with the application for recognition. Sub- rule 2 of Rule 106-A states that every application under sub-rule 1 shall be sent to the authorized officer by registered post with acknowledgment due Page 23 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined together with an undertaking in writing that the conditions of employment of teachers in the private primary schools shall be those as specified in Schedule 'F' appended to these rules. Schedule 'F' deals with the model conditions of employment of teachers in the private schools in the State of Gujarat which forms part of Rule 106A of the Rules. Clause (v) of sub-rule 4 states that no primary school shall be recognized or continued to be recognized unless the rates of tuition fee, pay-scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time. Following the above mentioned provisions, the Tribunal, on facts found that the respondents were working as teachers in the School for over ten years but they were paid only a consolidated monthly pay of Rs.724 per month, which was found to be not in accordance with rules. Tribunal in our view has correctly come to the conclusion that the respondents- teachers are entitled to get pay and allowances which are applicable to untrained teachers as per Government Rules.

8. Under the above circumstances, we find no reason to interfere with the order passed by the Tribunal which was confirmed by the High Court. Further, we notice that when this court had granted stay of the judgment vide orders dated 13.1.2006, recorded the statement of counsel for the management that it had disbursed Rs. 2 lakhs towards arrears of salary. Needless to say that amount would be adjusted Page 24 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025 NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined towards salary due to the respondents. Considering the financial difficulties pointed out by the counsel appearing for the Management and the fact that the School had to be closed down for the years 1995-96 and 1996-97, and considering the fact that there were unauthorized absences, we are of the view that the respondents 1-4 are entitled to get only 50% of the salary and other benefits applicable to the untrained teachers as per Government Rules from the date of appointment till the date of reinstatement after adjusting the above-mentioned amount. Ordered accordingly."

8.5 In view of the abovementioned legal position and considering the above-all, I am of the opinion that contentions raised by learned advocate for the petitioners are found misconceived as petitioners cannot shrug off the liability to pay the amount of salary as per the Government Rules. The Tribunal has not committed any error in directing the petitioners as per impugned judgment. I found no substance in any of the present petitions as all the petitions are based on similar contentions as there is almost identical facts and prayers are involved in the present matters. Therefore, considering the above-mentioned discussion, I found that there is no illegality or infirmity in the impugned order passed by the learned Education Tribunal, moreover, there is no violation of any provisions of Constitution of India and, therefore, the present petitions deserve to be dismissed."

NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined 8.3 Considering the above position of law and considering the facts of the present case, whereby it is bounden duty of the respondent school to pay necessary salary to the petitioner even considering the petitioner as untrained teacher and, therefore, the petition is required to be considered by granting the prayers made in the present petition.

9. In view of the above discussions, the present petition is allowed in terms of paragraphs 9A and 9B of the present petition.

10. The order dated 26.06.2012 passed by the Primary Education Tribunal in Application No. 94 of 2006 and No. 63 of 2006 as well as the order of termination dated 21.11.2006 passed by the respondent management is hereby quashed and set aside.

Rule is made absolute.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 26 of 26 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 21:51:04 IST 2025