Gujarat High Court
Bhikhabhai Mohanbhai Vaghela vs Commissioner Mid Day Meal And ... on 6 July, 2021
Bench: Bhargav D. Karia
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20326 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 20326 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 20326 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
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 ?
==========================================================
BHIKHABHAI MOHANBHAI VAGHELA
Versus
COMMISSIONER MID DAY MEAL AND SCHOOLS, & 2 other(s)
==========================================================
Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR KANVA ANTANI, AGP (1) for the Respondent(s) No. 1
MR NISARG DESAI for Nanvati Associates(1375) for the Respondent No. 3
RULE SERVED(64) for the Respondent(s) No. 2,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/07/2021
ORAL JUDGMENT
1. Heard learned advocate Ms. Mamta Vyas for the petitioner,
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
learned Assistant Government Pleader Mr. Kanva Antani for
the respondent-State and learned advocate Mr. Nisarg Desai
for Nanavati Associates for respondent No.3 through video
conference.
2. The petitioner was appointed in the respondent No.3-School as
Assistant Teacher by order dated 25.01.1991. The appointment
of the petitioner in the year 1991 was made after following the
procedure prescribed under the provisions of the Gujarat
Secondary and Higher Secondary Education Act, 1972 ['the
Act, 1972' for short] and the Rules framed thereunder.
3. It is the case of the petitioner that the Selection Committee
was consisting of representative of the Management,
representative of Office of the District Education Officer and
representative from the Office of the Commissioner, Mid Day
Meal School. It was disclosed by the petitioner in his
application as well as before the Interview Committee that
previously he was serving in secondary school run by
Rashtriya Andhjan Mandal, Vastrapur. The petitioner
submitted experience certificate of the said school before the
Interview Committee. The Selection Committee thereafter,
considering the qualification of the petitioner, selected the
petitioner as Assistant Teacher.
4. The petitioner was given 17.75 marks from 20 marks
considering the experience of the petitioner for two years of
service with the Rashtriya Andhajan Mandal from 10.10.1988.
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
The name of the petitioner was accordingly forwarded to the
District Education Officer-respondent No.2 by the Selection
Committee and after verifying the details including the
selection process, office of respondent No.2 granted approval
to the appointment of the petitioner and accordingly, the
appointment letter dated 25.01.1991 was issued and thereafter,
the petitioner resigned from the service from Rastriya Andhjan
Mandal and joined the services of respondent No.3-School.
5. Thereafter, in the year 1998, after 07 years from the date of
appointment of the petitioner, the petitioner received a show-
cause notice dated 18.11.1998 issued by respondent No.3-
School informing that appointment of the petitioner was not
approved by the audit party and therefore, why the petitioner
should not be dismissed from service. The petitioner being
aggrieved by said show-cause notice, filed Application No.
475 of 1998 before the Gujarat Secondary Education Tribunal
at Ahmedabad.
6. The Education Tribunal vide order dated 02.11.2004 held that
having regard to the fact that the petitioner was appointed in
the respondent No.3-School in the year 1991, it would not be
just and proper to put an end to the service of the petitioner on
technical grounds of audit objection after 13 years. The
Tribunal therefore, directed respondent No.3-School
Management to make a representation or appeal to the
Commissioner of Schools with supporting documents to
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
decide the same in accordance with Rules after hearing the
parties and keeping in view the fact that the petitioner would
be losing his job on the basis of the technicality after a period
of 13 years.
7. It appears that after representation was made on 20.12.2004,
an opportunity of personal hearing was given by respondent
No.1-Commissioner to the petitioner, representative of the
Office of District Education Officer and School Management
on 21.02.2005 and thereafter passed an order dated 31.03.2005
rejecting the representation holding that the appointment of the
petitioner is required to be rejected in view of the procedural
mistakes as two marks are given to the petitioner for past
experience for which it was found by the audit party, that the
petitioner has not disclosed about the past experience nor
provided any document in support of such experience.
8. Respondent No.3 thereafter issued notice dated 06.04.2005
under section 36(1) of the Act, 1972. The petitioner thereafter
preferred Special Civil Application No. 6689 of 2005 being
dissatisfied with the order dated 31.03.2005 passed by the
respondent No.1 as well as the show-cause notice dated
06.04.2005.
9. This Court [Coram: Hon'ble Mr. Justice Jayant Patel, As His
Lordship was then] by order dated 16.01.2006 directed the
respondent-School Management to forward a proposal to the
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
State Government within four weeks from the date of the order
together with the details, as required and such proposal was
directed to be considered by the State Government keeping in
view the policy vide Government Resolution dated 16.04.2005
and until such decision is rendered and communicated to the
petitioner within four months from the date of the receipt of
the order of the Court, the status quo regarding service
condition of the petitioner was ordered to be maintained.
10. The petitioner thereafter continued in service as regular
employee and upon inquiry it was found by the petitioner that
a proposal was sent by the School but as the petitioner was not
called for personal hearing, the petitioner by letter dated
09.02.2015 i.e. almost after nine years from the date of the
order passed by this Court, requested respondents No.1 and 3
to give a copy of the proposal, if any, made to the State
Government as the petitioner was to retire in October, 2017 on
attaining the age of superannuation.
11. The petitioner has therefore, preferred this petition initially
with following prayers:
"(A) This Hon'ble Court may be pleased to issue a writ of
mandamus and/or a writ in the nature of mandamus and/or
any other appropriate writ, order or direction;
(i) to hold and declare that action on the part of the
respondents in not processing pension papers of the
petitioner on the ground that initial appointment of the
petitioner is not ratified by the competent authority is
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
illegal, unjustified and contrary to the fundamental rights
of the petitioner;
(ii) to hold and declare that action on part of the
respondents in not ratifying appointment of the petitioner
on technical ground is illegal, unjustified and
unconstitutional;
(iii) to hold and declare that action on part of the
respondent No.1 in not taking any decision in ratifying
and regularizing the appointment of the petition despite
specific direction of this Hon'ble Court in Special Civil
Application No.6689 of 2015 as illegal, unjustified,
arbitrary and be pleased to further hold that in view of the
conduct of respondent no.1, now appointment of the
petitioner is deemed to have been regularized and ratified
and at the end of his career, i.e. at the time of retirement of
the petitioner, now respondents cannot raise any objection
with regard to appointment of the petitioner so as to deny
him benefit of pension;
(iv) to hold and direct the respondents to immediately
process the pension papers of the petitioner ignoring all
technical objections of the audit;
(B) Pending the admission hearing and final disposal of
the present petition, this Hon'ble Court may be pleased to
direct the respondents to immediately process the pension
papers of the petitioner so as to enable the petitioner to
receive pension when the petitioner reaches retirement
age;
(C) Any other and further relief or reliefs to which this
Hon'ble Court deemed fit, in the interest of justice, may
kindly be granted."
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
12. This Court passed the following order on 21.08.2017 [Coram:
Hon'ble Mr. Justice S.G.Shah, As His Lordship was then]:
"Considering the facts and circumstances
emerging from the record, irrespective of filing of
detailed affidavit in reply, respondents have to
disclose on oath that whether they have
complied with the directions in the judgment
dated 16.1.2016 in Special Civil Application
No.6689 of 2005 whereby the government was
directed to consider the proposal to regularize the
services of the petitioner pursuant to their Government
Resolution dated 16.4.2005 and to take appropriate
decision. It was observed that in such judgment
that such decision is to be taken preferably within a
period of 4 months from the date of receipt of order of
the Court. The Court, as back as, in the year 2006
directed to maintain
Status quo regarding service condition of the
petitioner. Therefore, if respondents have not
taken any decision on such issue till date then, now,
they are restrained from taking a stand that petitioner
is not regularized and, therefore, he is not entitled
to pension. Respondent shall disclose their stand
on, or before next date. List on 4.10.2017."
13. Thereafter, the following order was passed on 04.05.2018
[Coram: Hon'ble Mr. Justice R.M.Chhaya]:
"1. Heard the learned advocates appearing for the
respective parties.
2. The facts indicate that the petitioner was
working in the respondent - school and has retired.
Record further indicates that earlier the petitioner had
approached this Court by way of filing Special
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
Civil Application no. 6689 of 2005, which came to be
disposed of by an order dated 16.1.2006, wherein
this Court has issued certain directions, as can be seen
from the order at AnnexureK to the petition. It is the
case of the management that by a communication
dated 10.2.2006, the school management has
forwarded the proposal along with all requisite
details to the State Government. As nothing was
done, the present petition is filed, wherein this Court
(Coram:Mr. S.G. Shah, J.) has passed the
following order on 21.8.2017:
"Considering the facts and circumstances
emerging from the record, irrespective of
filing of detailed affidavit in reply,
respondents have to disclose on oath that whether
they have complied with the directions in the
judgment dated 16.1.2016 in Special Civil
Application No.6689 of 2005 whereby the
government was directed to consider the
proposal to regularize the services of the
petitioner pursuant to their Government
Resolution dated 16.4.2005 and to take
appropriate decision. It was observed that in
such judgment that such decision is to be
taken preferably within a period of 4
months from the date of receipt of order
of the Court. The Court, as back as, in
the year 2006 directed to maintain status
quo regarding service condition of the petitioner.
Therefore, if respondents have not taken
any decision on such issue till date then,
now, they are restrained from taking a stand
that petitioner is not regularized and,
therefore, he is not entitled to pension.
Respondent shall disclose their stand on, or
before next date. List on 4.10.2017."
3. Till date, nothing has been brought on record of
this case. Respondent no.1 is hereby directed to to
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
comply with the earlier order dated 21.8.2017 latest by
31.5.2018 and place the report of the same on
record of this petition. S.O. to 19.6.2018. Direct
service is permitted to respondent no.1."
14. It appears that in view of the aforesaid order, the respondent
passed an order dated 24.10.2018 as per the Government
Resolution dated 02.07.1999 read with Government
Resolution dated 16.04.2005 and ordered to regularize the
service of the petitioner from 11.12.2001 for a fixed pay for
five years and thereafter to provide all other benefits on higher
grade pay scale etc. to the petitioner w.e.f. 2006.
15. The petitioner therefore challenged the said order dated
24.10.2018 by way of an amendment which was granted vide
order dated 11.12.2018. The petitioner accordingly, prayed for
the following prayers challenging the order dated 24.10.2018
as under:
"6(A)(v) Be pleased to quash and set aside order
dated 24.10.2018 passed by respondent No.4 and further
be pleased to direct the respondent No.4 to regularize
services of the petitioner with effect from the date of his
service i.e. 04.12.1991;
6(A)(vi) Direct the respondents to immediately grant
pensionary benefits to the petitioner with effect from the
date of his retirement i.e. 31.10.2017 and further may be
pleased to grant interest on the arrears of pensionary
benefits."
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
16. The petitioner also filed Civil Application No. 1 of 2017
for direction wherein this Court [Coram: Hon'ble Mr. Justice
A.S. Supehia] passed following order on 07.10.2019 :
"1. Learned advocate Ms.Vyas has submitted that the
respondents have already passed the order dated
24.10.2018 fixing the pension of the petitioner with
effect from 11.01.2001, however, no retirement benefits
are paid.
2. In this view of the mater, the respondents are hereby
directed to comply with the order dated 24.10.2018 and
grant the retirement benefits within a period of two
months.
3. It is clarified that the rights and contentions claiming
further retirement benefits as per the prayers made in the
present petition are kept open. The respondents are
directed to pay the retirement benefits to the petitioner
within the time frame as specified by this Court. The
matter is kept on 9th December, 2019.
4. Learned Learned Assistant Government Pleader
Mr.Joshi shall communicate the order of this Court to
the concerned authorities."
17. Learned advocate Ms. Mamta Vyas for the petitioner
submitted that the petitioner was regularly employed after
following the due process of law in the year 1991 and
therefore, the services of the petitioner are required to be
regularized from the 1991 and not w.e.f. 11.12.2001. It was
submitted that the order dated 24.10.2018 is contrary to the
order dated 21.08.2017 passed by this Court depriving the
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
valuable right of the petitioner to get pension for the services
rendered by the petitioner since 1991.
18. It was submitted by the learned advocate Ms. Vyas that the
respondent authority could not have passed the order dated
24.10.2018 after retirement of the petitioner by regularizing
services of the petitioner from 2001 by wrongly applying the
Government Resolution dated 02.07.1999 read with
Government Resolution dated 16.04.2005. It was therefore
submitted that the respondents have illegally ignored the
service of 10 years while regularizing the services of the
petitioner from 11.12.2001 for no fault on the part of the
petitioner.
19. It was submitted by learned advocate Ms. Vyas that the
petitioner has attained the age of superannuation. The only
option open for the respondent as per order dated 21.08.2017
was to grant pension to the petitioner and not to pass any order
as is done by way of impugned order dated 24.10.2018 so as to
deprive the petitioner from getting full pension.
20. Learned advocate Ms. Mamta Vyas further submitted that the
respondents did not take a decision on the proposal made by
the respondent No.3 pursuant to the order dated 16.01.2006
passed by this Court in Special Civil Application No. 6689 of
2005 till the petitioner preferred this petition and after passing
of two orders by this Court, more particularly, the last order
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
dated 04.05.2018, the respondent authority passed the order
dated 24.10.2018 which is contrary to the facts of the case
more particularly, the fact of rendering of service by the
petitioner since 1991 has been ignored.
21. It was also submitted by learned advocate Ms. Vyas that the
petitioner was appointed after following all the procedures and
in the Selection Committee, which selected the petitioner, the
representative of respondent No.1-Commissioner of Schools
as well as representative of the District Education Officer were
present and therefore, it cannot be said that the two marks
given by the Selection Committee for the experience of the
petitioner was not in accordance with law and the audit
objection cannot overrule the decision of the Selection
Committee.
22. Learned advocate Ms. Vyas further submitted that the
Commissioner of Schools, while passing order dated
31.03.2005, has also not considered the aspect of the services
rendered by the petitioner from the year 1988 onwards and
only technical faults are mentioned without considering the
submissions of the petitioner. It was therefore submitted that
this Court has directed the School Management to make a
proposal to regularize service of the petitioner considering
such technical faults pointed out by respondent No.1-
Commissioner. No action was taken for almost 11 years and
the impugned order dated 24.10.2018 is passed only after this
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
Court directed the respondents to pass the order and it was
therefore submitted that the impugned order dated 24.10.2018
is liable to be quashed and set aside.
23. Learned advocate Ms. Vyas in support of her submissions
relying upon the following decisions:
In case of UNA Nagar Palika vs. Kaliben Balubhai
Makwana and anr in Civil Appeal No. 5529 of 2016
rendered on 20.09.2018;
In case of UNA Nagar Palika vs. Chandrikaben w/o
Bhurabhai S Bhamat and ors rendered by Division Bench of
this Court in Letters Patent Appeal No. 1067 of 2015 and
allied matters dated 06.10.2015;
In case of Ramgiri Kashavgiri Goswami vs. K.M.Raval and
ors reported in 1985 GLH 315;
In case of Harshidaben Dashrathlal Trivedi vs. State of
Gujarat through Secretary and ors in Letters Patent Appeal
No. 520 of 2013 in Special Civil Application No. 9716 of
2012 dated 16.10.2014;
In case of Union of India vs. Bikash Kuanar reported in 2006
(10) SCALE 86;
Reliance was placed on the order dated 13.06.2012 by the
State Government in Similarly situated employees viz
Khyatiben G. Rajput, Junior Clerk, Sunflower Girls School
High School, Ahmedabad.
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
24. Per contra, learned AGP Mr. Antani submitted that the
appointment of the petitioner was sanctioned by the District
Education Officer subject to the audit objection and
accordingly, the services of the petitioner were to be
regularized and as such the appointment of the petitioner was
objected by the audit party on the ground that the petitioner
has not disclosed that he was having past experience and in
spite of that fact, he was given two marks for past experience.
If the two marks given to the petitioner by the Selection
Committee is not considered, then the petitioner could not
have been appointed as Assistant Teacher with respondent
No.3-School as his marks would be 15.75 and there was
another meritorious person having marks of 16.30 given by the
Selection Committee.
25. It was submitted that the Education Tribunal, after going into
the merits of the case, has held that the Tribunal will not have
any jurisdiction to examine the decision of the audit party and
therefore, did not find any reason to interfere with the same
after agreeing prima facie with such objections raised by the
audit parity. It was therefore submitted that the Tribunal in
fact, has confirmed the decision of the audit parity. However,
considering the services of the petitioner for 13 years, the
same was protected by the Tribunal by directing respondent
No.3-School to make a proposal to the State Government and
the Commissioner of Schools to regularize the service of the
petitioner. It was therefore, submitted that after giving
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
opportunity of hearing to the petitioner as well as School
Management, the Commissioner, by order dated 31.03.2005,
rejected the representation of the School Management and
ordered to cancel the appointment of the petitioner. It was
therefore, submitted that the order dated 31.03.2005 was
challenged by the petitioner in Special Civil Application No.
6689 of 2005 in which, by order dated 16.01.2006, this Court
directed the School Management to make a proposal as per the
Government Resolution dated 16.04.2005.
26. The learned AGP Mr. Antani invited the attention of the Court
to Clause-7 of the Government Resolution dated 16.04.2005
which provides that the services of the employees, who are
appointed prior to 11.12.2001, would be regularized w.e.f.
11.12.2001 as per the Government Resolution dated
02.07.1999 and accordingly, the impugned order dated
24.10.2018 was passed whereby, service of the petitioner was
regularized w.e.f. 11.12.2001. As per the Government
resolution dated 02.07.1999, services of the petitioner was
considered on fixed pay for five years and thereafter, the
petitioner was given all the benefits of regular employee from
2006 onwards. It was therefore submitted that the petitioner
cannot get the benefit of service prior to year 2001 as per the
Government Resolution dated 16.04.2005. Reliance was
placed on the additional affidavit filed on behalf of Under
Secretary, Education Department by referring to the following
averments:
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
"8. It is submitted that, the petitioner initially came to be
appointed by the respondent school he resumed his
duty .Pursuant, to the order dated 25.01.1991 and
04.02.1991, it is submitted that, though the petitioner
came to be appointed on 25.01.1999, the advertisement
for the said post came to be issued by the respondent
school on 31.07.1990, however the NOC from the DEO
came to be obtained by the respondent no.3 on
19.12.1990. Therefore, appointments order came to be
issued prior to issuance of NOC.
9. It is submitted that at the time of audit, audit section
of Commissioner of Schools took objection dated
05.10.1991. In the audit objection, it was mentioned that
the appointment is not in accordance with law.
10. It is submitted that, therefore, the respondent no.3
had issued the notice to the petitioner for cancellation of
the appointment order the said came to be challenged
before the tribunal by filling of an appeal bearing no.475
of 1998 before the Learned Gujarat Secondary
Education Tribunal. In application no. 475/1998 with the
same came to be disposed of by the order is annexed
along with the memorandum of the petition at
ANNEXURE-G at page no.44.
11. It is submitted that, in the order passed by the
Learned Gujarat Secondary Education Tribunal, the
respondent management to the petitioner were directed
to make a representation before Commissioner of
Schools,the deponent office decided the same on the
ground on the basis of the record.
12.It is submitted that, pursuant thereto, representation
of Schools made by the management, the same came to
be rejected which was challenged before this Hon'ble
Court, by filling SCA no. 6689 of 2005 the same came
to be disposed of by the order dated 16.1.2006. The copy
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
of the order dated 16.1.2006 in SCA 6689 of 2005 is
annexed herewith and marked as ANNEXURE-R2.
13. It is submitted that, as mentioned in the above, this
Hon'ble Court had disposed of the application no. 6689
of 2005 wherein, the cancellation of the order came to be
challenged based upon the policy of the State
Government floated by the GR dated 16.04.2005. This
Hon'ble Court had directed the respondent authorities to
reconsider the case of the petitioner as the appointment
was prior to the 2002, it is observed by this Hon'ble
Court.
14. It is submitted that, the policy of the State
Government for considering the irregular appointment,
therefore, resolution was issued by government by
issuing GR dated 16.04.2005 wherein, the guidelines has
been laid down for regularization of the irregular
appointments.
15. It is submitted that, pursuant to the direction given
by this Hon'ble Court, the proposal which was received
by the respondent has been reconsidered and the service
of the petitioner came to be regularized vide order dated
24.10.2018 in light of the GR dated 16.4.2005.
16. It is submitted that, nowhere in the order earlier
passed by this Hon'ble Court, Ld Tribunal held that the
earlier services of the petitioner are to be considered.
17.It is submitted that, the petitioner came to be
superannuated on October, 2017 all through by the order
and judgement dated 24.10.2018, the petitioner's service
has been considered to be regularized in accordance with
the policy of the State Government and the benefits are
being extended accordingly.
18. It is submitted that, the claim of the petitioner for
reconsidering the service from initial date of
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
appointment is not permissible in accordance with the
GR dated 16.04.2005.
19 It is submitted by virtue of the policy of the State
Government more specifically GR dated 16.04.2005, the
service is ordered to be regularized from 11.12.2001 a
mentioned in the clause 7 of the GR dated 16.04.2005.
20.It is submitted that, the order challenged in the
present petition, is just and proper and in accordance
with the policy of the State Government, and the
petitioner is not eligible and entitled to claim the benefit
of his earlier service provided to 2001
21. It is submitted that, with reference to the contents
taken by the petitioner in the amended paragraph, it is
submitted that, pursuant to the order dated 04.05.2018
passed by this Hon'ble Court, the petitioner has
extended the benefit by order dated 24.10.2018.
22. It is submitted that, after the issuance of the policy
dated 16.04.2005 it was resolved to regularize the
irregular appointment to extend the appointment made
prior to 30.6.2002 in non grant in aid as well as in Grant
in Aid school. However, the appointment in the instance
case it is pertinent to mention that the appointment is
absolutely contrary to the guideline and without
obtaining the NOC.
23. It is submitted that, the benefits of the scheme was
given to those teachers who are appointed in non grant in
aid as well as the Grant in Aid school prior to 30.6.2002.
In case of regularizing the service of the teachers of
Grant in Aid,the NOC was not issued in those cases
because of the ban on appointment and appointment was
made in the interest of student.
24. It is submitted that, however, in the facts of the
present case are sharply bends to the fact that there was
no ban on appointment at the point of time, but the
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
management has appointed the petitioner prior to the
issuance of NOC which is absolutely illegal and not in
consonance with the guidelines and policy procedure
given by the government.
25. It is submitted that,in the facts of the present case
where the appointment of the petitioner came to ben
made prior to issuance of the NOC dated 19.12.1990, the
appointment was given. The petitioner cannot claim the
benefits of the policy, with retrospective effect.
26. It is submitted that, however, the benefit of the GR
dated 16.04.2005 has been extended to the petitioner, at
this juncture, it is also pertinent to mention that the
tribunal had at no point of time given a clear-cut
direction, which would establish right had accrued in
favour of the petitioner to claim earlier service as matter
of right in accordance GR dated 16.04.2005. Even, this
Hon'ble Court, had given a direction to the deponent
office to consider the case of the petitioner keeping in
view the policy vide resolution dated 16.4.2005 and
thereafter the petitioner has been extended the benefits
considering the service in accordance with clause 7 and
12 of the GR, the order dated 24.10.2018 is just and
proper.
27.It is submitted that, the petitioner cannot claim as the
petitioner was not eligible and entitled to avail the
benefits of the policy of the State Government
regularizing illegal appointment. However, the said has
been considered and the benefit of the service has been
ordered by order dated 24.10.2018 which is just and
proper and in accordance with law.
28 It is submitted that, pursuant to the passing of the GR
dated 16.04.2005, earlier GR dated 11.12.2001 has been
cancelled and in the GR dated 16.04.2005 a proper guide
lines has been given which has also been stated as a
policy decision for considering the regularization of
service from the date 11.12.2001 and considered as
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
11.12.2001 the said has been categorically mentioned
and laid down in clause no. 7 of the GR dated
16.04.2005.
29. It is submitted that, clause no.7 of the GR dated
16.04.2005 will be applicable in the facts of the present
case. Therefore, the contentions which are taken by the
petitioner would not crystallize any right to claim the
earlier services to be considered as a matter of right.
30 It is submitted that, the order passed challenged in the
present petition 24.10.2018 is just and proper. Therefore,
in right of the discussion the petition deserves to be
dismissed."
27. Relying on the aforesaid averments, it was submitted that the
services of the petitioner has been regularized considering the
length of services rendered by him and as such, benefit under
the Government Resolution dated 16.04.2005 has been
extended to the petitioner though the petitioner was not
entitled for the same. It was submitted by learned AGP
Mr. Antani that the impugned order dated 24.10.2018 is in
consonance with the Clause-7 of the Government Resolution
dated 16.04.2005 as the case of the petitioner was required to
be considered by the respondents as per Government
Resolution dated 16.04.2005 as directed by this Court in order
dated 16.01.2006 in Special Civil Application No. 6689 of
2005.
28. Learned AGP Mr. Antani therefore submitted that no
interference is required to be made in this petition as the case
of the petitioner has been considered sympathetically by the
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
authority applying Government Resolution dated 16.04.2005
and services rendered by the petitioner is saved, the petitioner
is entitled to the pensionary benefits available as per the
impugned order dated 24.10.2018 after fulfilling various
conditions by the petitioner.
29. Learned AGP Mr. Antani also submitted that the petitioner is
required to comply with various procedure. Reliance was also
placed on further affidavit-in-reply filed on behalf of
respondent No.1 pursuant to the order dated 09.12.2019
whereby the respondent authorities were directed by this Court
to state on affidavit as to what action and steps have been
taken by the respondent with regard to pensionary benefits to
be given to the petitioner. It is submitted by learned AGP Mr.
Antani that the respondent-authorities have already complied
with procedure for granting pension to the petitioner but as the
petitioner is not co-operating, benefits to be granted to the
petitioner are still under process.
30. Having heard learned advocates for the respective parties and
having gone through the materials on record it appears that the
petitioner, though appointed in the year 1991, was stated to be
removed from service on account of audit objection raised in
the year 1998 to the effect that two marks given by the
Selection Committee to the petitioner while appointing the
petitioner for his experience were not legal and correct. The
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
audit party could not find anything on record with regard to
past experience of the petitioner before his appointment.
31. The entire approach of the respondent in treating the case of
the petitioner is contrary to facts which are not in dispute as
follows:
(i) The petitioner was appointed in the year 1998;
(ii) After 7 years, audit party submitted the objection against
the appointment of the petitioner though the petitioner was
duly selected by the Selection Committee comprising of the
representative of the Office of the Commissioner of Schools
and representative from the office of the District Education
Officer. The petitioner in the petition has stated on oath that
the petitioner was serving with Rashtriya Andhjan Mandal in
the year 1988 and relevant certificate was also produced
before the Selection Committee but nowhere the respondents
have denied this fact nor the report of the audit party is
produced on record raising objection against the appointment
of the petitioner.
(iii) The petitioner rendered service of 13 years and was
continued till the Educational Tribunal continued him as
regular employee receiving all the benefits of revised pay
scale, higher pay scale etc. and when the Tribunal considering
the services of the petitioner for 13 years directed the
respondents to regularize the services of the petitioner which
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
were otherwise found to be irregular due to technical defaults
as stated in the order dated13.3.2005 by the Commissioner of
Schools. Even after this Court passed an order dated
16.01.2016 in Special Civil Application No. 6689 of 2015, no
action is taken by the respondents with regard to the proposal
of the respondent No. 3-School made pursuant to the
directions given by this Court till the orders are passed by this
Court in the year 2017 and 2018 in this petition to comply with
the orders passed by this Court. Meanwhile, the petitioner
retired from service in the year 2017. Thereafter, by order
dated 24.10.2018, the respondent regularized his services from
11.12.2001 as per Government Resolution dated 16.04.2005
read with Government Resolution dated 02.07.1999 by not
giving benefits of rendering of services for more than 20 years.
The petitioner thereafter, was deprived the benefit of pension
and only meager amount of gratuity was given pursuant to the
impugned order dated 24.10.2018.
32. Thus, from the above facts it is amply clear that the respondent
authorities have remained inactive for reasons best known to
them to take any decision pursuant to the orders passed by the
Tribunal as well as by this Court in the year 2006 and thereby
permitted the petitioner to render the services as regular
employee till the petitioner attained the age of superannuation.
Respondent authorities are therefore, not justified in passing
impugned order dated 24.10.2018 as if such order is being
passed in the year 2006-07 after this Court directed them to
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
consider the proposal within four months from the date of the
order i.e. 16.01.2006. The respondent-authority ought to have
passed an order dated latest by June 2006 but the impugned
order is passed in October 2018 i.e. almost after 12 years and
that too after passing of two orders by this Court calling upon
the respondents to comply with the order passed earlier. In
such circumstances, the impugned order dated 24.10.2018
cannot be sustained.
33. Considering the various judgements relied upon on behalf of
the petitioner, the settled legal position that emerges can be
summarized as under:
Reliance placed on behalf of the petitioner on the
decision of the Supreme Court in case of Una Nagar
Palika vs. Kaliben Balubhai Makwana and anr is
concerned, the same would be applicable to the facts of the
case wherein the Apex Court while dismissing the appeal
filed by the Una Nagar Palika and by confirming the order
passed by the Division Bench of this Court in Letters
Patent Appeal No. 1122 of 2015 in Special Civil
Application No. 3699 of 2014 and other allied matters has
held as under:
"11) The Division Bench held that the
employees are eligible and thus entitled to
claim the Pension/Pensionery benefits provided
they render qualifying service while in the
employment of the Municipality in terms of the
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
Rules. The concerned Municipality felt aggrieved
by the said order and filed special leave to
appeal (SLP Nos.15691 to 15700 of 2003) in
this Court. It was, however, dismissed by this
Court by order dated 16.09.2013.
12) The order was accordingly given effect to
by sanctioning the pension to those employees,
who were parties in the said litigation.
13) It is with this background, when the petitions out
of which these appeals arise came up for
hearing, the Single Judge (writ court)
essentially placed reliance on the decision of Chief
Officer vs. Mohamed Irshad Husenbhai Baloch and
Others (supra) and allowed the petitions finding no
material distinction in the case at hand and in the case
of Chief Officer vs. Mohamed Irshad Husenbhai
Baloch and Others (supra).
14) When the matter came up in appeals, the
Division Bench also placed reliance on the
view taken in Chief Officer vs. Mohamed Irshad
Husenbhai Baloch and Others (supra) and
dismissed the appeals.
15) The writ court and the Division Bench were of the
view that the issue in question has attained
finality by the decision rendered in the case of Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
and Others (supra) and affirmed by the order
of this Court dated 16.09.2012.
xxx xxx xxx
19) In our considered opinion, the High Court was right
in holding that the question involved in these appeals
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
is covered by the earlier decision of the
Gujarat High Court rendered in the case of Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
and Others (supra) which was upheld by this Court by
order dated 16.09.2013 and thus attained finality.
20) We find that in order to show that the decision
rendered in the case of Chief Officer vs. Mohamed
Irshad Husenbhai Baloch and Others (supra) has no
application to the facts of the case and that it does not
lay down the correct principle and be held as per
curium, the appellant (Municipality) made attempts
and contended before the Division Bench that there
lies a distinction between the employees, who were
originally working with the Panchayat and later on
convergence of Panchayat into the Municipality
became the employees of the Municipality by
virtue of its merger and the employees, who
were directly appointed by the Municipality.
21) It was contended that the employees, who fall in
former category of case, were held entitled for the
grant of pension but not those employees, who fall in
the latter category of the case. It was pointed out that
since the employees in the case of Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
and Others (supra) fell in the former category of the
case and, therefore, they were held entitled to claim the
benefit of pension whereas the respondents of this
case fall in the latter category of cases, the
benefit of decision rendered in the case of
Chief Officer vs. Mohamed Irshad Husenbhai
Baloch and Others (supra) could not be granted
to the respondents because they were appointed
directly by the appellant (Municipality).
22) The Division Bench while repelling the
aforementioned submission took note of the
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
following four undisputed facts arising in this case:
"1. The original petitioners respondent No.1
herein in the respective appeals were appointed
by the municipality and they were in service of the
municipality.
2. After the appointment, the employee
concerned continued in service until he reached
to the age of superannuation, so far as LPA
No.1066/15 is concerned. Whereas, in the rest of
the Letters Patent Appeals, the services of the
employees concerned came to an end on account of
death of the employees.
3. It is an undisputed position that the total
length of service in respect of all cases has exceeded
10 years which is the minimum requirement for
eligibility of pension.
4. In respect of all employees, which is
subject matter of the present group of appeals,
they were member of GPF and GPF contributions
were being deducted by the municipality from
their salary from time to time until their services
came to an end."
23) The Division Bench was of the view and, in our
view, rightly that the distinction sought to be made
between the two groups of employees, namely, one
coming from the Panchayat and then becoming the
Municipal employees and the other directly
becoming the Municipal employees was held to be of
no significance because the appellant made the
respondents members of the GPF contributions and
went on to deduct regular contribution from
their salary till the date of their retirement.
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
24) In our view, the case at hand is covered by the
earlier decision rendered in the case of Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
and Others (supra) which stands upheld by
this Court by order dated 16.09.2013. We are also of
the view that the aforementioned distinction pointed
out by the appellant for coming out of the clutches of
the decision of Chief Officer vs. Mohamed Irshad
Husenbhai Baloch and Others (supra) was also
rightly found untenable by the High Court by
assigning the proper reasons.
25) Keeping in view the aforementioned four
undisputed facts arising in the case coupled
with the decision rendered in the case of Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
and Others (supra), which has attained finality, and
was then given effect to in relation to
concerned Municipal employees holding them
eligible and entitled to claim the pension and
the pensionery benefits, we find no good ground to
take any other view than the one taken by the writ
court and the Division Bench in the impugned order.
26) Learned counsel for the appellant
(Municipality), however, placed reliance on
one State Government's Circular dated
28.11.1994 (Annexure P1) and contended that
in the light of this circular, the respondents
are neither eligible and nor entitled to claim the
benefit of pension. We find no merit in this
submission.
27) Firstly, we find that it was not filed before the
High Court (writ court/Division Bench);
Secondly, the writ court and the Division Bench did
not refer it to; Thirdly, in any event, it is of no
significance to decide the present controversy.
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
28) Its perusal shows that it applies to the cases of
Panchayat employees, who later became the
Municipal employees.
29) In the light of the foregoing discussion, we find
no merit in these appeals. The appeals thus fail and
are accordingly dismissed."
The Division Bench [Coram: Hon'ble Mr. Justice Jayant
Patel and Hon'ble Mr. Justice C.L.Soni, (As their
Lordships were then)] in case of Harshidaben Dashrathlal
Trivedi Vs State of Gujarat in Letters Patent Appeal No.
526 of 2013 in Special Civil Application No. 9716 of 2012
dated 16.10.2014 in similar circumstances has held as
under:
"15. We find that the appellant was appointed
by a regular selection process duly approved
by the concerned authority and was not found to
have indulged into any fraud or illegality in getting
appointed as Assistant Teacher. The appellant was
also declared as surplus teacher. In such
circumstances, the appellant was required to be
absorbed in any other school in accordance with
the policy of the State Government.
16. However, the appellant may not be made entitled
to any monetary benefit for interregnum period.
Even, learned advocate Ms.Vyas on behalf of the
appellant has declared that the appellant shall
not claim monetary benefit from the date of
termination until absorption but continuity in
service may be made available to the appellant.
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
17. For the reasons stated above, the judgment
rendered by Learned Single Judge is quashed and set
aside. The petition filed by the appellant is partly
allowed. The order made by the Commissioner
dated 03.12.2004 order dated 26.03.2012 insofar as
declaring the selection of the appellant as
Assistant Teacher as improper selection is quashed
and set aside. Consequently, the appellant is entitled
to be absorbed in any other school pursuant to the
order dated 14.08.2004 made by the District
Education Officer. The respondents are therefore
directed to absorb the petitioner as surplus teacher in
any other school as per the policy of the State
Government pursuant to the order dated 14.08.2004
made by the District Education Officer the respondent
No.3 herein. We however made it clear that the
appellant shall not be entitled to any monetary benefit
for interregnum period except the benefit of
continuity of service. The respondents shall pass
necessary orders for absorption of the petitioner
with continuity of service within a period of 3 months
from the date of receipt of this order. The appeal is
disposed of accordingly."
In case of Union of India and ors vs. Bikash Kuanar
reported in 2006 10 SCALE 86, the Supreme Court held as
under:
"14. When a Selection Committee recommends
selection of a person, the same cannot be presumed to
have been done in a mechanical manner in absence of
any allegation of favouritism or bias. A presumption
arises in regard to the correctness of the Official Act.
The party who makes any allegation of bias or
favouritism is required to prove the same. In the instant
case, no such allegation was made. The selection
process was not found to be vitiated. No illegality was
brought to our notice. In this view of the matter, we are
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
of the opinion that the said Pitamber Majhi by reason of
higher marks obtained by him in the matriculation
examination also cannot be said to be a better candidate
than the respondent herein. In this view of the matter,
we do not find any fault with the impugned judgment of
the High Court.
15. The Division Bench of the High Court, in our
considered view, correctly applied the law, which has
been crystallized in a number of decisions of this Court.
16. Indisputably, the respondent has fulfilled all the
essential terms and conditions for the appointment to the
said post. The respondent alone had submitted all
necessary and required documents before the date
prescribed by the appellants. It may also be pertinent to
mention that at the time of selection the respondent was
the only one who had the experience of working
continuously on the said post for a period of one and a
half years. Perhaps, all these factors cumulatively
persuaded the concerned authorities to select the
respondent to the said post.
17. In our considered view, no interference is called
for in the impugned judgment. The appeal, being devoid
of any merit, is accordingly dismissed."
34. From the above discussion it is clear that the Courts have, time
and again, come to the conclusion held that the employee
should not be subjected to harassment for no fault on his part.
In the facts of the case, the audit parity woke up from the
slumber after 07 years and show-cause notice was issued to
the petitioner after rendering 07 years of service in the year
1998 and thereafter, the petitioner was continued in service as
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
protected by the Education Tribunal. The Tribunal considering
the services of 13 years of the petitioner with respondent
No.3-School, on humanitarian ground, directed the respondent
to regularize services but without considering the fact of 1991
appointment, the Commissioner, in the year 2005, rejected the
appointment i.e. almost after 15 years which is a pathetic
approach on the part of the respondents which has resulted in
economic loss to the petitioner at the relevant time but for the
intervention made by this Court in the year 2006 by protecting
the services of the petitioner by directing the respondent to
maintain the status quo till they decide the proposal to be
made by the respondent No.3-School as per the Government
Resolution dated 16.04.2005 which was never decided till
October 2018 by the respondents.
35. In view of the above undisputed facts, the respondent
authorities have committed a grave error by passing order
dated 24.10.2018 after the retirement of the petitioner from the
service. The petitioner is therefore entitled to the benefits of
the regular employees as if he was regularly appointed from
1991 and all the retirement benefits to the petitioners are
required to be calculated accordingly.
36. For the foregoing reasons, the petition succeeds and is
accordingly allowed. Impugned order dated 24.10.2018 is
hereby quashed and set aside. Service of the petitioner is
ordered to be regularized from the date of his appointment in
C/SCA/20326/2016 JUDGMENT DATED: 06/07/2021
the year 1991 and all the consequential benefits which are not
given to the petitioner considering his services to be
regularized w.e.f. 1991 are ordered to be given including the
retirement benefits, higher grade pay scale, revised grade pay,
if any, not given and such benefits shall be calculated within
12 weeks from the date of receipt of this order and after that
within further 12 weeks, all arrears and pensionary benefits
are to be paid to the petitioner. It is also expected that the
petitioner would co-operate, to comply with all the procedures
for sanction of the pension and payment of all retirement dues
including gratuity, pension, provident fund etc. to which the
petitioner is entitled as if no litigation or audit objection is
raised in the case of the petitioner. Rule is made absolute to
the aforesaid extent. No order as to costs.
37. In view of the disposal of the Special Civil Application no
order is required to be passed in Civil Applications and are
accordingly disposed of.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
