Yogeshpuri Motipuri Goswami vs State Of Gujarat
2022 Latest Caselaw 7492 Guj

      C/SCA/3204/2020                              JUDGMENT DATED: 30/08/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 3204 of 2020


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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                        YOGESHPURI MOTIPURI GOSWAMI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR VASANT R BAROT(5746) for the Petitioner(s) No. 1,2
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3,4,5,6
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 30/08/2022

                              ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Soaham Joshi, learned

Assistant Government Pleader waives service of notice

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of rule on behalf of respondents.

2. With the consent of the learned advocates for the

respective parties, this petition is taken up for final

hearing today.

3. Heard learned advocates for the parties.

4. Mr. Barot, learned counsel for the petitioner submits

that the order passed by the respondents rejecting the

representation of the petitioner on 4.12.2019 pursuant

to the order passed by this Court in SCA No.11629 of

2018 is bad. He would submit that the petitioner is

entitled to the prayers made in this petition namely; in

para 9(C) which read as under and should be

reconsidered in light of the decision rendered in SCA

No.15391 of 2011.

"9(C)Your Lordships may be pleased to issue appropriate writ, order or direction and be directed to the respondent No.1 and 2, to

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consider the case of the petitioners for absorption in district committee, Patan and be allowed to have their LIEN in view of GR dated 23.8.1973. As well as in view of oral judgment passed in SCA No.15391 of 2011 and other similar type of matters and thereafter in pursuance to that the respondent No.1 has passed an appropriate orders as per the GR dated 23.08.1973 accordingly, forthwith in the interest of justice."

5. Mr. Soaham Joshi, learned AGP for the respondents

would justify the rejection by the impugned order in

light of a Reference made through an order passed by

this Court on 07.08.2018 in Special Civil Application

No.9134 of 2005.

6. Considered the submissions made by the learned

advocates for the respective parties and perused the

order dated 31.08.2017 passed by this Court in Special

Civil Application No.15391 of 2011 which is reproduced

hereunder:

"(1) The petitioner in the present writ petition has challenged the orders dated 28.12.2010 and 13.07.2011 passed by the respondent-State

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Government wherein the request of the petitioner to grant her the benefit of lien (absorption) in the District Education Committee, Naramda, is rejected.

(2) Briefly stated, the facts, material for deciding the issue in the present petition are as under:

(3) The petitioner was duly selected and appointed as teacher in Shree Ram Ashram Shala, Devmogra, on 10.06.1990. At the relevant time, P.T.C. trained teachers were not readily available and, therefore, the Government had issued Government Resolution dated 03.07.1987, according to which, S.C.C. passed or 12th Std. passed candidates could be appointed as primary teachers on a condition that they were required to undergo training at their own cost and to pass P.T.C. examination as may be directed by the Department. Accordingly, the petitioner was sent for P.T.C. training, pursuant to the order of the Commissioner for Tribal Development dated 28.10.1997 and the petitioner passed examination on 29.10.1999. Immediately thereafter, the District Education Committee, Vadodara, issued an advertisement for recruitment of teachers / Vidhya Sahayaks. The petitioner, in response to the said advertisement, made an application for selection. Accordingly, she was selected and was issued appointment order dated 01.01.2002. As the petitioner fully

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satisfied the requirements of benefit of lien, the school management addressed a letter dated 02.05.2007 to the Ashram Shala Officer, Rajpipla, requesting to grant the benefit of lien to the petitioner since she satisfies the parameters laid down in Government Resolution dated 23.08.1973. The Ashram Shala Officer, Rajpipla, also recommended for the petitioner's lien vide letter dated 11.05.2007 to the District Primary Education Officer. The District Primary Education Officer also forwarded the proposal with his recommendation to the District Primary Education Officer vide letter dated 13.06.2007.

(4) As the respondent authorities remained lethargic and did not pass any order for granting lien to the petitioner, she preferred Special Civil Application No.2280 of 2009, wherein this Court passed order dated 23.03.2009 permitting the petitioner to make an appropriate application to the concerned District Primary Education Officer, who was further directed to forward the same to the Director of Primary Education, State Government, for taking final decision. The petitioner thereupon made application/representation dated 06.04.2009 for grant of lien. However, the State Government rejected the said representation vide the impugned order/letter dated 28.12.2010. As per the say of the petitioner, since the State Government had passed an erroneous order,

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she submitted a representation dated 14.02.2011 with a request to reconsider her case. Thereafter, respondent No.1 again rejected the request of the petitioner for reconsideration of the application/ representation of the petitioner by the the impugned order dated 13.07.2011. The aforesaid action of the respondents is the subject matter of the present writ petition.

(5) Learned advocate Mr.Pujara appearing on behalf of the petitioner has contended that the impugned orders are contrary to the letter and spirit Government Resolutions dated 23.08.1973 and 08.12.1999 and the same suffer from nonapplication of mind. He has further submitted that the State Government vide Government Resolution dated 08.12.1999 decided to cancel the scheme of granting lien, however, the same is not applicable to the petitioner's case in as much as the petitioner was appointed way back on 10.06.1990 and she became eligible for lien / absorption on being selected by the District Education Committee. He has further placed reliance on the judgment in the case of Solanki Bharatkumar Khushalbhai Vs. District Primary Education Officer, reported in 2002 (2) G.C.D. 1062 and on the judgment dated 27.02.2003 passed in Special Civil Application No.4603 of 2000. He has also further submitted that in similar cases of other Ashram Shala Teachers, the State Government has passed order

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dated 21.04.2007 granting benefit of lien, though the concerned Ashram Shala Teachers were selected by the District Education Committee after Government Resolution dated 08.12.1999 was issued. Hence, the action of the respondents being discriminatory, the impugned orders based on the same, are liable to be quashed and set aside.

(6) Learned Assistant Government Pleader appearing on behalf of the respondent authorities has submitted that the petitioner is not entitled for lien as the petitioner was not possessing the requisite qualification of S.S.C. and P.T.C. as on 10.06.1990 but had acquired the requisite qualification when she passed P.T.C. in October, 1999. The other contention vociferously raised before this Court is that as per the policy of the state government envisaged in the Government Resolution dated 23.08.1973, the petitioner is required to complete five years' service in Ashram Schools after possessing the requisite qualification. He has stated that the petitioner was required to complete five years before 08.12.1999 i.e. the date of Resolution cancelling the scheme of granting the lien to the teachers of Ashram Shalas. Hence, the benefit of lien cannot be conferred on the petitioner. No further contention is raised.

           (7) Both      the         learned          Advocates





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appearing on behalf of the respective parties have premised their arguments on the interpretation of the Government Resolution dated 23.08.1973 and judgments of this Court on the related issue.

(8) The leading judgment on the related issue is in the case of Solonki Bharatkumar Khushalbhai Vs. District Primary Education Officer, reported in 2002 (2) G.C.D. 1062, wherein this Court has elaborately dealt with the entire scheme of lien of primary teachers working in the Ashram Shalas. As reflected in the judgement, the qualification of such teachers was S.S.C and P.T.C which the petitioner was possessing at the relevant time. She was sent to the training of P.T.C pursuant to the order of the Commissioner for Tribal Development dated 28.10.1997 and the Letter dated 06.11.1997 as promulgated in the Government Resolution dated 03.07.1987, and she passed the same on 29.10.1999. At this stage it deserves to be noted that though the petitioner was appointed in the year 1990 she was sent to training in the year 1997. It is also an undisputed fact that the petitioner was also selected by the District Education Committee, Vadodara and was issued appointment order on 01.01.2002. In the aforesaid judgement, this Court while interpreting the Government Resolution dated 23.08.1973 has specifically held thus:

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"By virtue of the said Resolution, even if a teacher is selected for appointment by the District Education Committee, he will not be allowed to join the schools of the District Education Committee unless he has put in at least five years' service in the Ashram Schools. It is, therefore, clear that what is required to be seen is the selection of such teacher. The said G.R. nowhere provides that such benefit can be given on the basis of posting orders or actual appointments and it deals with only selection and nothing more.

"It is not in dispute that the petitioner was selected and, may be, at the relevant time, he was kept in the waiting list, but what is required to be seen is selection and not appointment. Therefore, even if a teacher is appointed by a Committee, and he is serving in the Ashram School, he may not be able to get the appointment in the School of the District Education Committee till he completes the five years' service, but still, he can be said to have been selected and such teacher is entitled to the benefit of the G.R. of 1973. Under these circumstances, there was no reason to deny the benefit of the G.R. of 1973 to the petitioner simply on the ground that even though he was selected, actual posting order was not given and, therefore, since he was not appointed, he was not entitled to the said benefit. Reading the G.R., no other view is possible and it is clear that on the basis of his

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selection, such teacher is entitled to get the benefit of lien."

(9) The second judgment dated 27.02.2003 on the issue is in the case of Patel Nayanaben Revabhai Vs. State of Gujarat passed in Special Civil Application No.4603 of 2003. After considering the judgement rendered in the case of Solanki Bharatkumar Kushalbhai (supra), it was held thus:

"As observed in the earlier decision dated 01.02.2003 in SCA 5378/2001, the view taken by this Court (Coram:

P.B.Majmudar, J.) interpreting the resolution dated 08.12.1999 is that those who were in the employment at the time when the resolution came to be passed should be extended the benefits of lien and they should have been eligible for such purpose."

(10) A conspectus of the foregoing judgments leaves no scintilla of doubt that the case of the petitioner is covered by the views rendered therein. The petitioner had completed five years service in the Ashram Shala prior to 08.12.1999 i.e. the date on which the Resolution cancelling the scheme of grant of lien was introduced. She was also holding the requisite qualification i.e. S.S.C and P.T.C before she was selected by the District Education Committee

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and immediately thereafter she was issued appointment order dated 01.01.2002. Her case was also recommended by the school management. Ashram Shala Officer, Rajpipla, also recommended for the petitioner's lien vide letter dated 11.05.2007 to the District Primary Education Officer. The District Primary Education Officer also forwarded the proposal with his recommendation to the Director of Primary Education, State Government, vide letter dated 13.06.2007. The aforesaid authorities while recommending her case has never stated that the petitioner did not possess the requisite qualification of Primary Teacher. On the contrary, the fact borne out of the record suggests that she was sent for the training in the year 1997, though she was working since 1990. In her representation dated 14.02.2011 she has stated that she had repeatedly requested the authorities to send her for training but she was not sent. Appreciating the facts in hand and the judgments on the issue, it cannot be said that the petitioner did not possess the requisite qualification so that her legitimate demand of grant of lien can be scuttled. She cannot be faulted of not possessing the qualification as on 08.12.1999 since she was not sent to the training though requested by her time and again. Hence, the contention raised by the learned Assistant Government Pleader Mr. Oza deserves rejection.

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           (11) The          impugned         order     dated
           28.12.2010        refers to the judgment dated
           12.07.2001 in Special Civil             Application

No.2506 of 2001 i.e. in the case of Solanki Bharatkumar Kushalbhai (supra).

While rejecting the case of the petitioner for lien, it is stated that in the said judgment this Court has held that those Ahsram Shala Teachers who fulfilled the conditions of lien as per the Government Resolution dated 23.08.1973 prior to Government Resolution dated 08.12.1999 are to be conferred the benefit of lien but those who have gained eligibility after 08.12.1999 and selected after 08.12.1999 by the District Education Committee are disentitled to the same. A close scrutiny of the aforesaid judgement does not reveal any such findings or reasoning as canvassed by the respondent authority in the impugned orders. The said judgements also clarify that the lien is to be granted to those teachers also who are not allowed to join the schools and what is required to be seen is the selection of teachers by the District Education Committee. Hence, the impugned orders cannot be sustained and deserve quashing.

(12) So far the other contention raised by the learned Assistant Government Pleader Mr.Oza, that the petitioner had not completed five years in the Ashram Shala prior to 1999 after

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possessing the requisite qualification is concerned, the same does not have any substance. Learned AGP Mr. Oza was unable to justify the same either from the aforesaid judgments or from the Government Resolutions. Neither the judgments nor the Government Resolutions on record of the petition suggest the view expressed by the learned AGP, hence, the same is turned down.

(13) For the foregoing opinion and observations, the impugned orders dated 28.12.2010 and 13.07.2011 are hereby quashed and set aside. The respondents are directed to confer the benefit of lien to the petitioner in the District Education Committee, Narmada, with all consequential benefits and pass appropriate orders to that effect within a period of three months from the receipt of the present judgment. Petition is allowed. Rule made absolute."

7. In view of above, the petition is partly allowed.

Thereby, the order dated 04.10.2019 of Education

Department, Gandhinagar is quashed and set aside.

The respondents are directed to reconsider the case of

the petitioner in light of the decision referred to

hereinabove within a period of ten weeks from the date

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of receipt of copy of this judgment.

8. Rule is made absolute to the aforesaid extent. Direct

Service is permitted. No costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA