Gujarat High Court
Shamalbhai C Chaudhary vs State Of Gujarat on 25 April, 2022
Bench: Biren Vaishnav
C/SCA/5165/2021 JUDGMENT DATED: 25/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5165 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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SHAMALBHAI C CHAUDHARY
Versus
STATE OF GUJARAT
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Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MR.ADITYA J PANDYA(6991) for the Respondent(s) No. 4
MR. KURVEN DESAI, AGP, for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 25/04/2022
ORAL JUDGMENT
1 Heard Mr.Bhaumik Dholariya, learned advocate for the petitioner,
Mr.Kurven Desai, learned Assistant Government Pleader for respondent
Nos. 1 and 2, Mr.H.S.Munshaw, learned advocate for respondent No.3
and Mr.Aditya Pandya, learned advocate for respondent No.4.
C/SCA/5165/2021 JUDGMENT DATED: 25/04/2022
2 Rule returnable forthwith. Mr.Kurven Desai, learned AGP, waives
service of rule on behalf of the State- respondents. With consent of the
learned advocates appearing for the respective parties, the matter is taken
up for final hearing today. The prayer in the petition is that the impugned
communication dated 22.02.2021, refusing to grant the benefit of
permanency on completion of five years as part time Vidhya Sahayak be
quashed and set aside.
3 The facts in brief would indicate that the petitioner was appointed
as a part time Vidhya Sahayak by the School, respondent No.4, by an
order dated 11.06.2014. Reading the order would indicate that this was
pursuant to the approval given by the District Education Officer vide
order dated 19.05.2014.
3.1 Mr.Bhaumik Dholariya, learned advocate for the petitioner, would
submit that the impugned communication refusing to grant the benefit of
permanency to the petitioner, Vidhya Sahayak is misconceived. He would
submit that based on the time table annexed with the petition, it is
apparent that apart from teaching physical training, the petitioner is also
teaching the subject of Gujarati under the respondent No.4 school. He
would rely on the orders passed in the case of one Jalpaben Amrutlal
Kapadiya, who also was appointed on a fixed pay of Rs.5,300/- and was
thereafter granted the benefit of permanency by the District Education
Officer.
3.2 The stand of the State appears to be that since the petitioner was
appointed by virtue of an advertisement issued by the respondent No.4,
School, and the order of appointment dated 12.06.2014 is of the
institution and not that of the District Education Officer, the benefit of
C/SCA/5165/2021 JUDGMENT DATED: 25/04/2022
permanency cannot be given to the petitioner.
4 Mr.H.S.Munshaw, learned counsel appearing for the District
Primary Education Officer, would submit that since no proposal has been
received , the District Primary Education Officer has not considered the
case of the petitioner in absence of any proposal being made to the
District Education Officer and since the grant is provided by the District
Education Officer, the District Primary Education Officer has a limited
role.
5 Mr.Kurven Desai, learned AGP for the State, opposed the grant of
the petition on the ground that looking to the advertisement, the order of
appointment, admittedly, it is not an issue pending at the hands of the
District Education Officer, and therefore, the benefit given to the
candidate, namely, Jalpaben Amrutlal Kapadiya, cannot be granted to the
petitioner.
6 Mr.Aditya Pandya, learned counsel appearing for the respondent
School, would rely on a communication dated 30.09.2020 written to the
District Education Officer, by which, a proposal has been forwarded for
giving the benefit of permanency on the petitioner having completed five
years of service on and from 13.06.2019.
7 Considering the totality of facts and circumstances of the case,
what is apparent is that though the order of appointment dated 12.06.2014
is that of the respondent No.4 institution, the approval of the District
Education Officer was granted on 19.05.2017. Therefore apparently, the
entire exercise of appointing the petitioner is post the approval of the
District Education Officer. The stand of the government therefore that in
C/SCA/5165/2021 JUDGMENT DATED: 25/04/2022
case of Jalpaben Amrutlal Kapadiya, since the appointment order was
that of the District Education Officer, pales into insignificance. Reading
the column of the order of appointment issued by respondent No.4 would
indicate that the District Education Officer actively considered and the
approval was granted pursuant to which the petitioner's appointment was
approved and he was so appointed. There is no reason therefore, that the
policy pursuant to which Vidhya Sahayaks on completion of five years in
their tenure can be permanently absorbed should not apply to the
petitioner.
8 As and when the proposal is sent in the prescribed format by the
respondent No.4 School to the District Education Officer, respondent
No.2, the same shall be considered in accordance with law and the
petitioner shall be extended the benefits of permanency with effect from
13.06.2019 as his case is similar to that of the incumbent Jalpaben
Amrutlal Kapadiya. The entire exercise shall be completed within a
period of ten weeks from the date of receipt of copy of this order. The
petition is allowed, accordingly. Rule is made absolute to the above
extent. Direct service is permitted.
(BIREN VAISHNAV, J)
Bimal
