Jivubhai Chehubhai Makwana vs State Of Gujarat
2021 Latest Caselaw 7536 Guj

      C/SCA/10759/2020                             JUDGMENT DATED: 02/07/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10759 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         JIVUBHAI CHEHUBHAI MAKWANA
                                     Versus
                              STATE OF GUJARAT
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Appearance:
MR MA PAREKH(1088) for the Petitioner(s) No. 1
MR. ROHAN. N, SHAH, AGP, (99) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3,4
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 02/07/2021
                               ORAL JUDGMENT

[1] Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent-State.

[2] This petition is filed seeking direction to set aside the order dated 28.02.2020 passed by the Deputy Secretary of Education Department. By the impugned order, the Deputy Secretary of the Education Department had rejected the claim of the petitioner to consider the service rendered by the petitioner with the Ashram

C/SCA/10759/2020 JUDGMENT DATED: 02/07/2021

Shala as a continuous service under District Education Committee.

[3] Learned advocate Mr. M.A.Parekh appearing for the petitioner submitted that such decision is not in consonance with the Government Resolution dated 23.08.1973 which is still in vogue and specifically provides for considering the service rendered with Ashram Shala as continuing service, thereby covering the specific case of the petitioner also. Learned advocate for the petitioner submitted that earlier the petitioner and other similarly situated persons had filed Special Civil Application No.11058 of 2018 claiming third higher pay scale which was due to the petitioner, but was not granted. This Court vide order dated 02.08.2018 had allowed the petition holding the petitioner to be entitled to the benefit of first, second and third higher pay scale. While doing so, the Court had also directed the competent authority to take a decision with regards to grant of continuity of service by combining the services rendered at Ashram Shala.

[3.1] Learned advocate submitted that as the respondents did not comply with the decision of this Court, an application being Misc. Civil Application No. 1111 of 2019 was filed which came to be withdrawn to enable the petitioner to challenge the impugned decision which was taken pending the Misc. Civil Application.

[3.2] Learned advocate for the petitioner submitted that there is no reason whatsoever to discriminate the petitioner from those who are granted the benefit of continuity in service. He also draws attention of this Court to a communication dated 19.01.2013 issued by the Deputy Director, Education addressed to all the District Primary Education Officers with regards to considering the continuity of service of all those teachers who have rendered service in Ashram Shala and were selected by the District Education Committee subsequently.

C/SCA/10759/2020 JUDGMENT DATED: 02/07/2021

[4] As against this, learned Assistant Government Pleader for respondent No.1-State opposed the grant of petition justifying the impugned decision stating that the petitioner had left the service of Ashram Shala and thereafter, joined the school under District Education Committee and therefore, there was a break in service between the service rendered with the Ashram Shala and District Education Committee.

[5] The Court has heard learned advocates for the parties and perused the documents placed on record. The petitioner was appointed as Assistant Teacher in Ashram School after following due process of law in the regular pay scale with the trust which was 100% Grant-in-Aid Trust. The petitioner was originally appointed as Assistant Teacher at Ashramshala of Private Management which was 100% Grant-in-Aid. Apparently, the petitioner has been continuously in service and never left the service. The Government Resolution dated 23.08.1973 provides that where teacher is recruited in service of the Ashram School, he should be allowed to have lien in the service in the respective District Education Committee under the Panchayat and the service of such teacher is to be counted fully in service of the selection by the Staff Selection Committee of respective District Panchayats. Even the communication dated 19.01.2013, the Education Department has communicated to the District Primary Education Officer as under:-

"List of 12 teachers is appended herewith. Concerned teachers of the residential schools in the list hold required educational and apprentice qualification and their appointments are made in the respective school before 08/12/1999. As per the resolution dated 23/08/1973 of the Education Department and as per the Interim Oral (Common) Order dated 28/12/2005 in Sp.C.A. No.23626/2005 with Sp.C.A. No.9134/2005 of the Hon'ble High Court, the service rendered at Residential School is required to be counted continuous with the service rendered at the concerned education committee

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togetherwith lien of primary teacher as per the resolution dated 23/08/1973 of the Education Department. Accordingly, pass orders immediately to accommodate them in the District Education Committee without following any procedure of selection subject to the final order in Sp.C.A. No.23626/2005 with Sp.C.A. No.9134/2005 of the Hon'ble High Court and inform this office."

[6] Over and above the aforesaid, it is also pertinent to reproduce the directions given in case of the very petitioner in earlier order dated 02.08.2018 in Special Civil Application No.,10753 of 2018, which read as under:-

4. As seen above, the grievance raised in this petition are two fold. First is that the petitioners are deprived of being granted 1st , 2nd and 3rd higher pay scale which is the benefit available on the basis of continuous service. The second and connected grievance is that the authorities have not been granting continuity of service by not counting the petitioners' services at Ashram Shaala. The petitioners subsequently came to be appointed in the District Education Committee as primary teacher. The petitioners' grievance is that their services rendered prior to their appointment as permanent primary teacher in the District Education Committee, which was in the Ashram Shala, is required to be reckoned as above for granting continuity in service.

5. All the petitioners have already made representations before the competent authorities. Since the authorities are yet to consider the case and yet to take decision in respect of the grievance of the petitioners raised as above, the court is dissuaded to exercise powers under Article 226 of the Constitution. It is expected from the authorities to take decision on the representations of the petitioners. In the aforesaid view, interest of justice would be served if the petitions are disposed of at this stage by directing the respondents to take proper decision with regard to the grievance of the petitioners.

C/SCA/10759/2020 JUDGMENT DATED: 02/07/2021

6.As a result, the respondents are directed to act through their competent authority and to take appropriate decision within a period of eight weeks from the date of receipt of this order on the representations of the petitioners in respect of the grievance of the petitioners about the grant of continuity of service by combining their services rendered at the Ashram Shala with one was rendered in primary school at the district committee as well as regarding other part of grievance regarding non-grant of first, second and third higher pay scale."

[7] In view of the aforesaid facts, the case of the petitioner deserves consideration. The period of service rendered by the petitioner with the Ashram Shala is required to be considered as continuing in service from the date of his appointment. The petitioner is therefore, entitled to the consequential benefits as well by treating the petitioner to be in continuing in service.

[8] With the aforesaid, the both the petitions stand allowed. Considering the age of the petitioner being 57 years, the respondent authorities may undertake the exercise to comply with the directions of this Court as expeditiously as possible. Direct Service is permitted. Rule is made absolute to the aforesaid extent.

(A.Y. KOGJE, J) SIDDHARTH