Gujarat High Court
State Of Gujarat vs Minaxiben Bhulabhai Patel on 28 June, 2021
Bench: B.N. Karia
C/LPA/650/2016 JUDGMENT DATED: 28/06/2021
STATE OF GUJARAT & 2 other(s) Versus MINAXIBEN BHULABHAI PATEL & 2 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
(1) R/LETTERS PATENT APPEAL NO. 650 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 7807 of 2014
With
(2) R/LETTERS PATENT APPEAL NO. 647 of 2016
In
SPECIAL CIVIL APPLICATION NO. 7806 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
LETTERS PATENT APPEAL No. 650 of 2016
1. STATE OF GUJARAT
2. DIRECTOR OF PRIMARY EDUCATION
3. DISTRICT EDUCATION OFFICER
Versus
1. MINAXIBEN BHULABHAI PATEL
2. DISTRICT PRIMARY EDUCATION OFFICER
3. LUNAWADA KELVANI MANDAL SANCHALIT
S.K. HIGH SCHOOL (PRIMARY SECTION)
LETTERS PATENT APPEAL No. 647 of 2016
1. STATE OF GUJARAT
2. DIRECTOR OF PRIMARY EDUCATION
3. DISTRICT EDUCATION OFFICER
Versus
1. GITABEN MANILAL PATEL
2. DISTRICT PRIMARY EDUCATION OFFICER
3. LUNAWADA KELVANI MANDAL SANCHALIT
S.K. HIGH SCHOOL (PRIMARY SECTION)
==========================================================
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APPEARANCE IN LETTERS PATENT APPEAL NO. 650 OF 2016
MR KRUTIK PARIKH, AGP for the Appellant(s) No. 1,2,3
MR UM SHASTRI(830) for the Respondent(s) No. 2
MS MAMTA R VYAS(994) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 3
APPEARANCE IN LETTERS PATENT APPEAL NO. 647 OF 2016
MR KRUTIK PARIKH, AGP for the Appellant(s) No. 1,2,3
MR UM SHASTRI(830) for the Respondent(s) No. 2
MS MAMTA R VYAS(994) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
Date : 28/06/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE B.N. KARIA)
1. As common question of law and facts are involved in these
both the Letters Patent Appeals and they are arising from common
Judgment and Order passed by learned Single Judge in Special Civil
Application No. 7806 of 2014 and Special Civil Application No. 7807
of 2014 dated 16th July 2015 with the consent of Learned Counsels for
the parties, these both the Letters Patent Appeal are decided by
passing common Judgment.
2. The short facts of the present case may be referred as under:
2.1 The Petitioner of Special Civil Application No. 7807 of 2014
namely Minaxiben Bhulabhai Patel, who is the Respondent No.1 in
Letters Patent Appeal No. 650 of 2016, was appointed as Assistant
Teacher on 4th March 1985 and Petitioner of Special Civil
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Application No. 7806 of 2014 namely Gitaben Manilal Patel, who is
the Respondent No.1 in Letters Patent Appeal No. 647 of 2016, was
appointed on 4th October 1990 as Assistant Teacher in Lunawada
Kelvani Mandal Sanchalit S. K. High School (Primary Section),
Lunawada, District: Panchmahal (Respondent No.5) in non-granted
classes in Primary Section as per the Schedule-F of the Bombay
Primary Education Regulations and both of them were possessing
qualifications of H.S.C., PTC, which were required as per the Rule as
trained qualified. The Respondent No.5, who was also running
Standard V to VII wherein Two classes were given recognition with
grant facility. Thereafter, on 5th December 1985, the District
Education Officer approved an appointment of the original
Petitioners. Pursuant to the letter of original Respondent No.2 dated
12th February 1998 due to retirement of the employees in the granted
School, whereas the original Petitioners were serving employees from
non granted schools could be absorbed in granted classes on the
seniority basis and their salaries may be made under the Direct
Payment Scheme. On retirement of two Teachers from the granted
classes, original Respondent No.5 -School sent a proposal to the
District Education Officer, herein Appellant No.3, for absorption of
both the Petitioners in the granted School considering their
qualifications. The District Education Officer, who is the Respondent
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no.2 in the present Appeals, passed an order of absorbing both the
Petitioners into granted School and necessary procedure for the same
was completed by the School Authorities. Pursuant to the aforesaid
Order dated 22th July 2004, the District Education Officer,
Panchmahals approved the appointment of the Petitioners for the
purpose of grant on 14th October 2004. That, however the case of the
Petitioners was considered as per the Rules, one Chandrikaben Patel
objected the same though she was not qualified for the Primary
School as she was possessing the qualifications of B.A., B.Ed., and
pursuant to the said complaint, the District Primary Education
Officer straightway cancelled the earlier order without hearing the
Petitioners. Thereafter, the Petitioners approached the Gujarat
Primary Education Tribunal, and challenged the order dated 5th
December 2005. Learned Tribunal was pleased to quash and set aside
the order passed by the District Primary Education Officer dated 5th
December 2005. However, the Tribunal allowed the prayer of the
present Petitioners vide order dated 12th December 2006 for
considerable period, none of the Petitioners were paid salary under
the Direct Payment Scheme, and therefore, they have filed Special
Civil Application No. 25427 of 2007 as well as Special Civil
Application No. 25428 of 2007 respectively before this Court, which
was allowed and the concerned Authorities were directed to decide
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the representations dated 9th June 2007 made by the Petitioners and
passed reasoned order as directed by the Tribunal within one month
from the date of receipt of the order. Inspite of the aforesaid order,
District Education Officer, vide order dated 03.04.2008, confirmed
the order dated 05.12.2005 . As salary was not paid to the Petitioners
under the Direct Payment Scheme, both the Petitioners, on 25th
November 2008, approached this Court by filling Misc. Civil
Application No. 50 of 2008 in Special Civil Application No. 25427 of
2007 and separate Misc. Civil Application in Special Civil
Application No. 25428 of 2007 before this Court wherein Notices
were issued, and thereafter, government was pleased to pay the salary
of the Petitioners for the period from 22nd July 2004 to 3rd April 2008.
Both the Petitioners, thereafter, challenged the order dated 3rd April
2008 of the District Primary Education Officer by filling Appeal
before the Director of Primary Education on 15.12.2008, and
thereafter, more 5 years was passed but the Appeal preferred by the
Petitioners were not decided, and therefore, both the Petitioners,
again, filed separate Petitions on 24th September 2013 ie. Special Civil
Application Nos. 12970 of 2013 and 12971 of 2013 before this Court,
which were allowed by directing the original Respondents to decide
the Appeals. Thereafter, hearing was fixed on 22nd October 2013 and
on 24th October 2013. Both the Petitioners were remained present and
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requested to act as per the letter dated 12th February 1998. However,
the Appeal preferred by the Petitioners were rejected by the
Respondent No.2 vide order dated 11.12.2013, and therefore, they
approached this Court by filling two different petitions ie., Special
Civil Application Nos. 7807 of 2014 and 7806 of 2014. Learned Single
Judge, after hearing the parties, was pleased to allow both the
Petitions vide common order dated 16.07.2015 by quashing and
setting aside the impugned order dated 11th December 2013 and 3rd
April 2008 respectively. The Respondents were directed to pay the
salary of the Petitioners under the Direct Payment Scheme and said
and other benefits as may be admissible in a Granted School.
3. Heard Mr. Krutik Parikh, learned Assistant Government
Pleader for the Appellants and learned Counsel Ms. Mamta Vyas
appearing for the Respondent in both the Letters Patent Appeal.
4. Mr. Krutik Parikh, learned Assistant Government Pleader
appearing for the Appellants has made his arguments and submitted
mainly on the ground that the original Respondent no.5 was a
Private School and was not Granted in Aid by the Government, and
therefore, the Petitioners cannot be given any benefit, which was
available to the Grant-In-Aid Primary School. It is further submitted
that the original appointment was given by the original Respondent
no.5 to the Petitioners and not by the Government. That, the salary
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of the said Teachers were paid by the original Respondent no.5 from
its own part, and therefore, the Government is not liable to pay their
salaries as the Petitioners were associated with non Grant-In-Aid
Primary School. Learned AGP has further submitted that however
letter dated 12th February 1998 was written with a request to
accommodate the original Petitioners from Non Granted to Granted
School, it was not in consonance with the Schedule-F of the Bombay
Primary Education Rules and as per the Government Resolution
dated 18th June 1949 passed by the Education Department, State of
Gujarat. That Director of Primary Education Officer rightly rejected
the said application vide Circle dated 5th February 2002 and 20th
December 2005. It is further submitted by learned AGP for the
Appellants that in spite of the clear rejection by the Office of the
Director of Primary Education, the District Primary Education
Officer passed an order dated 22nd July 2004 accommodating both the
Petitioners from Non-Granted to Grant-in-Aid School, which was
against the statutory provisions as per the Schedule-F as well as the
Government Resolution of the Education Department, State of
Gujarat as well as order passed by the Director of Primary Education
Department rejecting the application of the original Petitioners. It is
further submitted by learned AGP that both the Standard I to IV
and V to VII are independent and isolated to each other as far as the
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Grant-in-Aid is concerned. It is further submitted that the Teachers
teaching in Standard I to IV cannot be directly accommodated in the
Grant-in-Aid part. That, there is no such provision for
accommodation from Non Grant-in-Aid. That, in pursuant to the
Order passed by this Court directing to pay the salaries to the
Petitioners from 22nd July 2004 to 3rd April 2008 as per Grant-in-Aid
class. Appellants are paid the salary for the aforesaid period. That,
the representations of the Petitioners dated 15.12.2008 was rejected
after giving an opportunity of hearing vide order dated 11th December
2013. That, the Petitioners are trying to take advantage of the order
passed in Special Civil Application No. 3694 of 2011. That, the
Appellants would suffer irreparable loss and injury if the impugned
Judgment and Order is confirmed by this Court. It is further argued
that the learned Single Judge has committed patent error in passing
the impugned judgment and order against the evidence on record as
well as provisions of Law and findings as well as settled legal
provisions, and therefore, it was requested by learned AGP appearing
for the Appellants in both these Appeals to allow these Appeals by
setting aside the impugned Judgment and order dated 16.07.2015
passed by learned Single Judge of this Court in Special Civil
Application No. 7806 of 2014 and Special Civil Application No. 7807
of 2014.
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5. Per contra, Learned Counsel Ms. Mamta Vyas appearing for
the Respondent No.1/Original Petitioners has submitted that the
learned Single Judge while allowing both the Petitions in favour of
the Petitioners and has not committed no patent error. It is further
submitted by her that the Special Civil Applications preferred by the
original Petitioners were not seriously contested before the learned
Single Judge. It is further submitted that the Petitioners were
appointed as Assistant Teacher on 4th March 1985 and 4th October
1990 respectively in the respondent No.5-School. It is further
submitted that they were appointed in the Non Granted Classes in
the Primary Section according to the Schedule-F of the Bombay
Primary Education Regulations. They were possessing the
qualifications of H.S.C, P.T.C. That, the Respondent no.5-School
was running the Standard V to VII wherein two classes were given
recognition with grant facility. It is further submitted that letter dated
12.02.1998 was written by the original Respondent no.2 i.e., District
Primary Education Officer stating that in the event of retirement of
two employees from Granted Classes, two employees from the Non-
Granted Schools could be absorbed in the Granted Classes on the
basis of seniority and their salaries would be under the Direct
Payment Scheme. It is further submitted that the Respondent No.5-
School forwarded a proposal to the District Primary Education
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Officer for absorbing the Petitioners in the Granted Classes
considering their qualifications. It is further submitted that the
District Primary Education Officer was pleased to pass an order
dated 22nd July 2004 to absorb the Petitioners in the Granted Classes
of the School. It is further submitted that the order dated 22nd July
2004 passed by the District Primary Education Officer was also
approved by the District Education Officer, Panchmahals vide his
letter dated 14.10.2004 and appointment of the Petitioners for the
purpose of grant was approved. It is further submitted that
thereafter, another Teacher namely Chandrikaben, who was not
qualified and serving with the Respondent no.5-School objected the
appointment of the Petitioners made by the District Primary
Education Officer dated 22nd July 2004 and straightway, her objection
was accepted by the District Primary Education Officer and he
cancelled his earlier order. As salary was not paid under the Direct
Payment Scheme to the Petitioners, they approached this Court by
way of filing Special Civil Application No. 25427 of 2007 as well as
Special Civil Application No. 25428 of 2007 respectively, which came
to be allowed vide order dated 5th October 2007. That, subsequent
proceedings were also initiated by the original Petitioners for their
salary and order dated 03.04.2008 of the District Primary Education
Officer by preferring Appeal. That, initially, the appointment of the
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Petitioners were as per the Rules. That, two posts have fallen vacant
on account of retirement of two teachers in Granted Classes, and
thereafter, verifying the record, the Petitioners were absorbed in the
Granted Classes. That, the learned Single Judge has rightly
considered the prayer of the original Petitioners. That, in the similar
facts of the case, in Special Civil Application No. 3694 of 2011, this
Court was pleased to allow petition preferred by Hasumatiben B.
Patel vide order dated 5th October 2011. That, Letters Patent Appeal
preferred by the State against that order dated 5th October 2011 was
rejected by the Division Bench of this Court on the ground of non-
joining of necessary party. That, the order passed in Special Civil
Application No. 3694 of 2011 has got finality and Petitioner of that
petition was paid the consequential benefits as well as her salaries.
Considering the aforesaid aspects also, Learned Counsel appearing
for the Respondent No.1/Original Petitioners prayed to dismiss these
both the Letters Patent Appeals and confirm the order dated 16th July
2015 passed by the learned Single Judge in Special Civil Application
No. 7806 of 2014 and Special Civil Application No. 7807 of 2014.
6. Having heard Learned Assistant Government Pleader
appearing for the Appellants and Learned Counsel appearing for the
Respondent No.1-Original Petitioners and considering the relevant
Government Resolutions as referred in the documents, it is
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undisputed facts that both the Original Petitioners were appointed in
the School running by the Respondent no.5 on 4th March 1985 and
4th October 1990 respectively as Assistant Teachers. The Respondent
No.5 was having Non Granted Classes of Standard 1 to 7 and
Petitioners were appointed in Standard 1 to 4 according to Schedule-
F of the Bombay Primary Education Regulations. Both the
Petitioners were qualified having qualification HSC, PTC. It is also
not in dispute that the Respondent No.5-School was also running
Standard 5 to 7 wherein Two classes were given recognition with the
grant facility. It appears that the letter dated 12th February 1998 was
written by the District Primary Education Officer, verifying that in
the event of retirement of the employees in the Granted School,
employees from the Non Granted School could be absorbed in the
Granted Classes on the basis of the seniority and their salary would
be from Direct Payment Scheme. Thereafter, two teachers viz. Smt.
B. S. Dhruv and Smt. K. L. Mahant reached at the age of
superannuation, and therefore, Respondent No.5-School forwarded a
proposal to the District Primary Education Officer for absorption of
the Petitioners in the Granted Classes considering their qualifications.
It appears that on receiving the proposal from the Respondent No.5-
School to absorb the original Petitioners in the Granted Classes, after
considering their qualifications as two Teachers were retired on
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account of their superannuation, the District Primary Education
Officer was pleased to pass an order of absorbing Petitioners in
granted Classes of the School on 22nd July 2004. It further appears
from the record that the order passed by the District Primary
Education Officer dated 22nd July 2004 was approved by the District
Education Officer, Panchmahals vide order dated 14th October 2004,
who is the Appellant No.3 in these both the Letters Patent Appeals.
By the said letter, appointments of original Petitioners for the
purpose of grant was approved and thereafter, on receiving
objections from one Teacher who had no sufficient qualifications and
not trained namely Chandrikaben Patel absorbing the Petitioners in
granted School, the District Primary Education Officer straightaway
accepted the objections of Chandrikaben Patel and cancelled the
earlier order. Thereafter, the Petitioners challenged the order passed
by the District Education Officer before the concerned Education
Tribunal by filling Application Nos. 135 of 2005 and 136 of 2015 and
learned Tribunal was pleased to quash and set aside the order of the
District Education Officer dated 05.12.2005 vide order dated
12.12.2006. Thereafter also, Petitioners were not paying the salary
under the Direct Payment Scheme, and therefore, they preferred
Special Civil Application No. 25427 of 2007 as well as Special Civil
Application No. 25428 of 2007 respectively before this Court, which
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was allowed vide order dated 05.10.2007. This Court confirmed the
order dated 12.12.2006 directing the Government to comply with the
Order of the Tribunal and pay the salaries to the Petitioners.
However this Order was not complied with, Petitioners again filed
Misc. Civil Application No. 50 of 2008 in Special Civil Application
No. 25427 of 2007 and separate Misc. Civil Application in Special
Civil Application No. 25428 of 2007 before this Court, wherein
notices were issued. Thereafter, Government paid salary for the
period between 22nd July 2004 to 3rd April 2008 to the Petitioners.
Thereafter, the Petitioners again challenged the order dated 3 rd April
2008 of the District Primary Education Officer by filling the Appeals
before the Director of Primary Education. As such Appeals were not
heard for the period of Five years, Petitioners moved to this Court by
filing Special Civil Application Nos. 12970 of 2013 and 12971 of
2013, wherein vide order dated 24th September 2013, learned Single
Judge allowed the Petitions directing respondents to decide the
Appeals and ultimately, Appeals preferred by the Petitioners were
dismissed vide order dated 11th December 2013. It appears that
Standard 1 to 7 were considered by the School as one unit and
appointment of the Petitioners were made in accordance with the
Rules.
7. Under Section 106 of the Schedule "F", it is nowhere provided
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that if the appointment of Teacher is made in Non Granted School,
then Teacher cannot be given an appointment in the granted School.
8. Learned Single Judge, in his order, referred the observations
made in the case of Hasumatiben B. Patel v. State of Gujarat and
Others- Special Civil Application No. 3694 of 2011 decided on 5th
October 2011 as under:
"8.4 The above noted facts remained undisputed, but under no
circumstances, it can be said that pursuant to introduction of
scheme of recruitment of Vidhya Sahayak in the recognized private
primary schools by Government Resolution dated 18.06.1999, the
vacancy of a teacher arising in the private primary school is required
to be filled up by appointment of Vidhya Sahayak, and the right
which is already accrued in favour of the petitioner since her joining
in the service as a primary teacher in a granted private primary
school for being included in direct payment scheme upon a vacancy
which has arisen due to superannuation and/or resignation of the
teacher, is in no manner affected. If the government Resolution is
seen, it is applicable prospectively in the case of candidates, who will
be appointed as Vidhya Sahayak and for such candidates relevant
conditions contained in the above Government Resolution will be
applicable. That clause 3 of the Government Resolution dated
18.06.1999 issued by the Department of Education, State of
Gujarat, clearly stated that earlier resolutions dated 11.06.1998 and
31.08.1998 will remain unaffected. That, any change in the policy
with regard to method of payment of salary of Vidhya Sahayak
shall have no bearing on the service conditions of the petitioner,
who was appointed as early as on 20.07.1990. That similarly
situated persons and teachers appointed along with the petitioners
are given benefits of direct payment scheme, upon retirement of
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teacher as per seniority, and therefore, reliance placed by the
learned advocate for the private respondent as well as learned AGP
on subsequent circular dated 05.02.2002 and 20.12.2005 about
cancelling earlier instructions of Director, Primary Education dated
12.02.1998 cannot be applied and has no bearing on the case of
petitioner. When the appointment of the petitioner was made, no
objection certificate was given by the competent authority and upon
undertaking valid selection procedure she was appointed and after
rendering about 32 years of service in grant-in-aid primary school
and one of the service conditions with regard to payment of salary
etc was governed by Government Resolution dated 18.01.1991 and
09.04.1991 applicable to the teacher like the petitioner and further
other similarly situated teachers who were appointed along with the
petitioners were given benefit of direct payment scheme, and
therefore, she cannot be discriminated for receiving salary under
direct payment scheme and the said denial would result into
depriving her of benefits of regular pay scale available to her from
time to time. That any such denial would not only be unreasonable,
but also violative of right of the petitioner for equality and equal
treatment in the matter of public employment guaranteed under
Articles 14 and 16 of the Constitution of India, and therefore, the
order impugned passed by the Tribunal is contrary to law and
deserves to be quashed and set aside. However, the contention
about lack of jurisdiction under Section 40E of the Bombay Primary
Education Act is not the vital aspect for rendering decision on merit
as considered herein above and that the petitioner herself has
invoked jurisdiction of the Tribunal.
The Petition is allowed and impugned order dated 11.01.2011
passed by the Gujarat Primary Education Tribunal is hereby
quashed and set aside with a direction to the respondent authorities
to include name of the petitioner in the direct payment scheme with
effect from 01.11.2008 in place of Smt. Hemaben H. Naik, who
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retired from respondent-School on 31.10.2008 and to grant her
other consequential and incidental benefits in accordance with law
within a period of 4 months from the receipt of the writ of this
order."
9. It is not in dispute that against the order passed in Special Civil
Application No. 3694 of 2011 dated 5th October 2011, separate
Letters Patent Appeal was preferred by the State of Gujarat, which
was dismissed by this Court, of course, on the ground of non joining
of necessary party. This order has got finality.
10. Learned Assistant Government Pleader has also not disputed
the said fact of dismissal of said Letters Patel Appeal, however, the
order passed in Letters Patent Appeal referred by the Appellants
against the order passed in Special Civil Application No. 3694 of
2011, is not placed on record.
11. The Appellants have also accepted the finality of the order
passed in Special Civil Application No. 3694 of 2011 by the learned
Single Judge and has paid the benefits as well as his salary to the
Petitioner of that Special Civil Application No. 3694 of 2011. As
similar situated persons and Teachers appointed alongwith the
Petitioners are given benefits of Direct Payment Scheme, upon
retirement of Teacher, as per seniority, the .submissions made by
learned Assistant Government Pleader referring circular dated 3rd
February 2002 and 20th December 2005 about canceling earlier
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instruction of Director, Primary Education dated 12th February 1998
cannot be applied and has no bearing on the case of the Petitioners.
Both the Petitioners are appointed in the year 1985 and 1990
respectively and they have completed their services of approximately
35 and 30 years respectively in Grand-in-Aid Primary School. When
other Teachers who have also appointed in the School and given
benefit of Direct Payment Scheme. Present Petitioners cannot be
discriminated for receiving salary under the Direct Payment Scheme,
as the said denial would result into depriving them from benefits of
regular pay scale available to them from time to time. Both the
Petitioners are entitled to receive the salary under the Direct Payment
Scheme and other benefits as admissible in Grant-in-Aid School on
retirement of Two Teachers from the same School namely Smt. B. S.
Dhruv and Smt. K. L. Mahant. We are not in agreement with the
arguments advanced by learned Assistant Government Pleader for
the Appellants in both the Letters Patent Appeals to interfere in the
order passed by the learned Single Judge in Special Civil Application
No. 7806 of 2014 and Special Civil Application No. 7807 of 2014
dated 16th July 2015 as there is no merits in the submission to disturb
the order.
Therefore, the present Letters Patent Appeal No. 650 of 2016
and Letters Patent Appeal No. 647 of 2016 are ordered to be
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dismissed. The impugned order dated 16th July 2015 passed by the
learned Single Judge in Special Civil Application No. 7806 of 2014
and Special Civil Application No. 7807 of 2014 are confirmed.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
K. S. DARJI
