Gujarat High Court
Dodia Ganpatsinh Naransinh vs State Of Gujarat on 8 September, 2025
NEUTRAL CITATION
C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10442 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
Approved for Reporting Yes No
✓
==========================================================
DODIA GANPATSINH NARANSINH
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR. HENIL SHAH, AGP for the Respondent(s) No. 1 and 3-STATE
MR RUTVIJ M BHATT(2697) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/09/2025
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 heard at length for final hearing.
2. The present petition under Article 226 of the Constitution of India has been filed by the petitioner for seeking the following reliefs:
"a) to admit this petition and to allow the same by issuing Notice for final disposal on returnable date;Page 1 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025
NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined
(b) to quash and set aside the impugned order dated 26-6- 2018 passed by the Respondent No.3 as per Annexure-H;
c) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the operation of the impugned order dated 26-6-2018 passed by the Respondent no.3 as per Annexure-H;
(d) to grant any other appropriate and just relief/;s"
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 was born on 28.01.1963. He is presently aged about 55 years and is going to retire on 31.01.2021. He belongs to open category. Pursuant to the advertisement dated 8.12.1998, the petitioner applied for the same and appeared at the open interview held on 15.12.1998 by the duly constituted selection committee which included the Ashramshala Officer also. On being selected, the petitioner was issued appointment order on 30-12-1998 w.e.f. 1.1.1999. The petitioner joined duties on 1.1.1999. The petitioner's appointment was approved by the Commissioner, Tribal Development, Govt. of Gujarat, by order dated 4.1.2000. It is further the case of the petitioner in this Page 2 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined petition that the State Government had issued G.R. dated 23.08.1973 for granting lien at Ashramshala teachers who had served for more than 5 years in the Ashramshalas, in the District Education Committee and to give them all the benefits available to the primary teachers of the District Education Committee. Accordingly, the Director of Primary Education passed order dated 2.1.2017 for granting lien (absorption) to total 53 teachers of Ashramshalas, which included the present petitioner at Sr. No. 29. Consequently, the District Primary Education Officer, Valsad passed order dated 16.05.2017 granting lien to the petitioner and passed the order dated 14.07.2017, whereby the petitioner was posted at Vadijangal Payripada Primary School, Valsad. The petitioner has been placed in the General Provident Fund Scheme. The petitioner is going to retire shortly on 31.01.2021.
3.2 It is further the case of the petitioner in this petition that now, at this stage, the respondent No. 3 has passed order dated 26.06.2018, whereby the petitioner's absorption and posting at Vadijangal Payripada Primary School, Tal:
Kaprada, Dist: Valsad is sought to be cancelled and the petitioner is sought to be sent back to Ashramshala. Hence, the present petition has been preferred.Page 3 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025
NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined
4. Heard Mr. K.B. Pujara, learned advocate for the petitioner, Mr. Rutvij M. Bhatt, learned advocate for the respondent No.2 and Mr. Henil Shah, learned Assistant Government Pleader for the respondent Nos.1 and 3- State. Though served, none appears for respondent Nos.4 and 5.
5. On 09.07.2018, this Court has passed following order:
"Leave to add typed copy of page 28 to be inserted as page 28/A.
2. Heard learned advocate Mr. K. B. Pujara for the petitioner.
3. The District Primary Education Officer, District Valsad by communication dated 26.6.2018 directed reversion of services of the petitioner back to the Aashram Shala. The petitioner was absorbed, submitted learned advocate for the petitioner, in the District Panchayat Services after completion of requisite five years services. The ground put forth in the impugned order is that the appointment of the petitioner was not permissible since he had crossed the age of 33 years at the time of initial appointment. Juxtaposed with this, figures on page 28A is a letter of Director of Primary Education which points out that there is no upper age limit applicable for the post in question.
4. Learned Assistant Government Pleader Mr. Antani Page 4 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined invited attention of the court to the communication dated 2.1.2017 seeking to oppose the prayer. Nothing could be prima facie noticed which would dissuade the court from issuing notice.
5. Therefore, Notice returnable on 6.8.2018.
6. By way of ad-interim relief, the impugned order dated 26.6.2018 is stayed till the next date.
7. Direct service is permitted."
6. Mr. K.B. Pujara, learned advocate for the petitioner has fairly submitted that in view of the fact that the petitioner has retired on 31.01.2021, all the benefits have been given to the petitioner except the benefits of leave salary and second higher pay-scale. He has also submitted that in view of the contention raised in the present petition, the present petition is required to be allowed to the limited extent by granting the benefits which are not granted at the verge of superannuation more particularly leave salary and second higher pay-scale. Furthermore, he has submitted that even considering the affidavit-in-reply filed by the respondent, the present petition is required to be allowed. He has brought the attention of this Court towards the affidavit-in-rejoinder filed by the petitioner and has submitted that the G.R. dated 02.02.1999 issued by the General Administration Department Page 5 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined has no relevance for the purpose of present petition. He has further submitted that when the petitioner was appointed in the Ashramshala on 01.01.1999, he was aged 35 years and the appointment was to be given only if the age was upto 33 years. He has further submitted that in fact, this stand taken by the Director of Primary Education in the said letter is incorrect. He has submitted that in fact, there is no upper-age limit provided for appointment in private primary school. He has further submitted that the respondent No.2 has chosen to maintain complete silence on the aspect about the fact that there is no upper-age limit in appointment in Ashramshala. Therefore, he has prayed that the petition is required to be allowed accordingly and necessary benefits are required to be granted to the petitioner.
7. Per contra, Mr. Henil Shah, learned Assistant Government Pleader for the respondent Nos.1 and 3- State has drawn the attention of this Court towards the affidavit- in-reply filed by the respondent No.3 and has submitted that pursuant to the advertisement for the post of primary teacher issued by respondent No.5, the petitioner has applied for the said post and was duly appointed on 30.12.1998. The petitioner was born on 28.01.1963. Hence, the petitioner was appointed on the said post at the age of 35 years. He has further submitted that the appointment of the petitioner was Page 6 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined in open category. He has further submitted that the State Government had issued G.R. dated 23.08.1973 for granting lien to the Ashramshala teachers, who had served for more than 5 years in the Ashramshalas in the District Edcucation committee and to give them all the benefits available to the primary teachers of the District Education Committee. He has further submitted that pursuant to the various petitions filed in the High Court for consideration of the case of other similarly situated candidates for lien, a composite proposal was prepared by the District Education Committee on the basis of the letter issued by the respondent No.2 and was forwarded for consideration for the said benefits to the Director of Education. He has further submitted that in the said proposal, the name of the petitioner was given at serial No.29 in the common list prepared and the petitioner was granted benefit of lien along with other candidates and was placed in school run and managed by the District Education committee. He has further submitted that it came to the notice of the respondent No.2 while thorough verification of the individual cases that when the initial appointment of the petitioner was made with respondent No.5, the age of the petitioner was 35 years. Hence, the respondent No.2 by letter dated 06.05.2018, addressed to the present respondent for clarification with regard to the proposal of the persons eligible for lien, wherein it has been clarified that the Page 7 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined maximum permissible limit for relaxation in case for appointment as primary teacher in District Education Committee is 05 years i.e. 33 years. Since the petitioner has attained 35 years and since proper verification with regard to permitting the benefit of lien is not done hence the petitioner is required to be replaced at the original place and necessary orders to that effect to be passed. He has further submitted that on the basis of the letter of respondent No.2 and by considering the resolution of the State Government dated 02.02.1999, wherein the benefit of extending the maximum age is five years. He has further submitted that the initial appointment of the petitioner at respondent No.5 though approved was conditional order by the Commissioner, Tribal Development, Government of Gujarat on 04.01.2000, wherein condition No.2 clarifies that the said appointment shall be subjected to audit. The present case while on verification has come to the notice of the respondents that the benefits are wrongly being conferred hence it is always open for the department to verify before extending any benefit to the petitioner. He has further submitted that since the benefit of conferring the lien was granted in the year 2017 only and, therefore, he has submitted that the present petition is meritless and is required to be dismissed.
8. Mr. Rutvij M. Bhatt, learned advocate for the Page 8 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined respondent No.2 has submitted that in view of the Government Resolution, maximum age limit is 33 years and petitioner has admittedly crossed 35 years of age at the time of appointment and in view of the Government Resolution of the year 1999, the action of the respondents is appropriate. Furthermore, he has also supported the submission made by learned AGP Mr. Henil Shah and has submitted that accordingly, appropriate order may be passed by rejecting the present petition.
9.1 I have considered the rival submissions made at the bar. I have also perused the prayers in the present petition and also the documents annexed with the petition, affidavit- in-reply as well as affidavit-in-rejoinder. It transpires that during the pendency of the present proceeding, the petitioner has retired on 31.01.2021. This Court has passed the order on 09.07.2018, whereby the document which is annexed at Page 28A, which is letter of Director of Primary Education which points out that there is no upper-age limit applicable for the post in question.
9.2 On perusal of such document again, it clearly stipulates that there is no upper-age limit for the recruitment of the teaching/non-teaching staff in grant-in-aid primary schools. Moreover, pursuant to the initial order passed by this Court, Page 9 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined on perusal of the affidavit-in-reply, there is no specific denial except relying on the circular of the year 1999. 9.3 It also transpires that G.R. dated 02.02.1999 issued by the General Administrative Department which is relied upon by the respondents are not applicable to the facts of the present petition because the petitioner's appointment at the relevant time was governed by Schedule-F. This fact is brought to the notice of this Court by learned advocate for the petitioner by referring to the affidavit-in-rejoinder in reply in paragraph No.4 which reads as under:
"4. The contents of para-6 to 8 of the Affidavit-in-Reply are not true and correct and they are denied hereby. The respondent no.2 is called to place on record, with a copy to the petitioner, the letter of respondent no.2 dated 6-5-2018 referred to in para-6 of the Affidavit-in-Reply. If by mistake or otherwise the respondent no.2 is referring to the letter of respondent no.2 dtd. 6-6-2018 which is annexed as Annexure-R/1 of his Affidavit-in-Reply, then it is submitted that the said letter is written behind the back of the petitioner and without giving any opportunity of hearing to the petitioner and hence the impugned order based on such wrongful letter is liable to be quashed on the short ground of violation of the principles of natural justice, over and above on the ground of non-application of mind, in as much there was no upper-age limit for appointment of primary teachers in Ashramshalas which are private primary schools Page 10 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined governed by Schedule-F of the Bombay Primary Education Rules, 1949 made under the Bombay Primary Education, Act, 1947. It is therefore wrongly stated in the letter of the Director of Primary Education dated 6-6-2018 that when the petitioner was appointed in the Ashramshala on 1-1-1999 he was aged-35 years and the appointment was to be given only if the age was upto 33 years. The fact that there is no upper-age limit provided for appointment in private primary school in Schedule-F is confirmed and corroborated even by the Director of Primary Education himself vide his letter dtd. 14-9-2005 addressed to the Deputy Director of Tribal Development, copy of which is already annexed by the petitioner at Annexure-I of the petition (page no. 28). However, the respondent no.2 has chosen to maintain complete silence about the same in his Affidavit-in-Reply.
So far as the G.R. dtd. 2-2-1999 issued by the General Administration Department, copy of which is at Annexure-R/ 2 of the Affidavit-in-Reply, is concerned it has no relevance for the purpose of the present petition because the petitioner's appointment at the relevant time was governed by the Schedule-F referred to hereinabove.
In para-8 of the Affidavit-in-Reply the respondent no.2 is referring to the order of approval of the petitioner's appointment issued by the Commissioner, Tribal Development dtd. 4-1-2000 and is contending that the said order was conditional as it was subject to audit. It is difficult to understand the said contention of the respondent no.2. It is pertinent that the said order dtd. 4-1-2000 does Page 11 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025 NEUTRAL CITATION C/SCA/10442/2018 JUDGMENT DATED: 08/09/2025 undefined not refer to the issue of age because there is no provision for upper-age limit in Schedule-F. The whole controversy about age raised by the respondent no.3, relying on the letter of respondent no.2 dtd. 6-6-2018, is devoid of any merit and suffering from total non-application of mind. It is denied that the petitioner was age-barred at the time of his selection and appointment in Ashramshala by order dtd. 30- 12-1998."
9.4 Considering the totality of the facts and circumstances of the case, the present petition is required to be allowed. However, the petitioner has received most of the benefits on reaching the superannuation, but as submitted by Mr. K.B. Pujara, learned advocate for the petitioner that benefits of leave salary and second higher pay-scale was not granted to the petitioner. Therefore, let the respondent-authority may consider this aspect about non-payment of such benefits which is receivable by the petitioner and thereafter, the respondent- authority shall do needful to pay the same, as expeditiously as possible, preferably within a period of eight weeks from the date of receipt of copy of this order. Accordingly, the present petition is disposed of as allowed with the above- mentioned direction.
Rule is made absolute accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 12 of 12 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Sep 10 2025 Downloaded on : Wed Sep 10 23:55:55 IST 2025