Vijaybhai Sureshbhai Panchola vs State Of Gujarat
2022 Latest Caselaw 9164 Guj

     C/SCA/1886/2021                               JUDGMENT DATED: 17/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1886 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI Se/-

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1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           Yes

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 ?

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                       VIJAYBHAI SURESHBHAI PANCHOLA
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2
MR VD PARGHI(568) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 17/10/2022

                              ORAL JUDGMENT

1 By way of this petition under Article 226

of the Constitution of India, the petitioner has

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

prayed for quashing and setting aside the order dated

27.08.2020 passed by the Respondent No.1 so far it

relates to the present petitioner.

2 By consent of the parties the matter was

heard finally. Hence, Rule. Learned Assistant

Government Pleader Mr.Sahil Trivedi waives service of

Rule on behalf of Respondent Nos.1, 2 and 4, learned

advocate Mr.Parghi waives service of notice of Rule

on behalf of Respondent No.3.

3 It is the case of the present petitioner

that he belongs to scheduled caste and having caste

certificate issued by the competent authority. He

possesses required educational qualification for

being appointed as Assistant Teacher in the school.

Pursuant to the advertisement in local newspaper

published on 22.06.2010 for the post of Shikshan

Sahayak Teacher for standard 11th and 12th in self-

finance school, petitioner applied pursuant to the

aforesaid advertisement and ultimately he was

selected by clearing the interview held by the

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

Respondent No.3 school on 29.07.2010 and ultimately

he was appointed as Assistant Teacher vide

appointment order dated 29.07.2010 given by the

school.

3.1 Thereafter on 01.01.2011 Respondent No.3

School submitted an application to Respondent No.2

school for giving approval to the appointment of the

present petitioner as Assistant Teacher for non-

granted higher secondary school. Since the aforesaid

application for approval preferred by Respondent No.3

school before the Respondent No.2 pending for long,

the present petitioner approached the Gujarat

Educational Institutions Services Tribunal by filing

Application No.1690 of 2014.

3.2 Thereafter during the pendency of the above

referred application pending before the Gujarat

Educational Institutions Services Tribunal, Ahmedabad

the State of Gujarat issued Government Resolution

dated 24.10.2017 whereby it was decided to regularize

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

the services of teachers serving in non-granted

higher secondary school having `staff profile', who

have cleared TET Examination.

3.3 As the petitioner also had cleared TET

Examination and as the petitioner and other similarly

situated persons who also had preferred the similar

kind of application which was pending before the

Education Tribunal, the Education Tribunal disposed

of a group of applications pending before it by

making the following observations in the order dated

5.9.2018:

"[1] The proceedings referred to above involve identical question s of fact and law and are in light of the recent developments covered by the same G.R. issued by the respondent state. In such circumstances all the proceedings are disposed of by this common order & judgment.

[2] In light of the G.R. No.UMR-1115-133- -1 (part file) dated 24.10.2017 and further in light of the purshis dated 29.8.2018 passed by

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

the State as also the fact of similar cases having favourably considered by the State authorities, a fact of which judicial notice is and can be taken, and since all the petitioners have agreed thereto, we pass the following orders.

[3] The petitions are ordered to stand disposed of in light of the circumstances that have now arisen after the issuance of the G.R. referred to herein before. The petitioners are directed to approach the appropriate authority through the proper channel within 15 days from the date of this order. It is further ordered that the appropriate authority would consider the application in accordance with and in the true spirit of the said G.R. dated 24.10.10.17. A personal hearing also be given to the petitioners of all the present proceedings and a decision be arrived at, at the earliest and before 31st December, 2018. It is made clear that interim relief granted herein shall continue till 31.12.2018.

[4] In any case the petitioners are granted the liberty to approach this tribunal in accordance with law if any cause of action so arisen in connection with this order.

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

[5] With the observations the petitions stand accordingly disposed of with no order as to costs. Copy of this order be placed on the record of each of the petitions covered by this common order."

3.4 In compliance of the aforesaid order the

petitioner also preferred application to respondent

No.4 Commissioner of School and Mid Day Meal for

regularizing his services. At the same time the

respondent school also forwarded the `staff profile'

of the petitioner. However, according to the

respondent authority vide order dated 5.9.2018 the

concerned petitioners before the Education Tribunal

were directed to approach the appropriate forum

through proper channel within a period of 15 days,

the respondent No.3 school forwarded the application

of the petitioner beyond the period of 15 days.

Though the petitioner's application pursuant to which

order dated 5.9.2018 was forwarded by the school in

the month of September, 2018, the respondent

authority for almost 2 years did not take any

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

decision on the same and vide order dated 27.8.2020

by way of common order in respect of 19 persons,

including the petitioner, rejected the application of

the petitioner for regularization on the ground that

petitioner's application was forwarded by the school

on 26.9.2018, which is not within the prescribed time

limit as per the order passed by the Tribunal and

also on the ground that the petitioner does not have

`staff profile' and therefore, requisite condition of

Government Resolution dated 24.10.2017 cannot be said

to be fulfilled by the petitioner.

3.5 Being aggrieved by and feeling dissatisfied

with the aforesaid order dated 27.8.2020, the

petitioner has preferred this petition with a prayer

to quash and set aside order dated 27.8.2020 and to

direct the respondent authorities to regularize the

services of petitioner with all consequential

benefits thereto.

4 Mr.Rutul Kinariwala, learned advocate for

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

the petitioner submitted that the petitioner had

immediately made an application to respondent No.4

through proper channel pursuant to the order dated

5.9.2018 passed by the Education Tribunal and since

the aforesaid application was to be made through

proper channel, the petitioner made it to the school

and the school in turn forwarded the same to the

respondent authorities. It is further the case of the

petitioner that it was the direction of the Education

tribunal to approach the authority through proper

channel within a period of 15 days was meant for the

petitioner and it did not say that the school was to

forward the application of the petitioner within a

period of 15 days from the date of the order.

Further, learned advocate for the petitioner

submitted that as per order dated 5.9.2018, the

petitioner was to forward his application through

proper channel within a period of 15 working days,

and therefore, it was not the fault on the part of

the petitioner if the school forwarded the

application of the petitioner on 26.9.2018.

Mr.Kinariwala, learned advocate for the petitioner

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

further submitted that the petitioner has passed TET

examination and as far as `staff profile' is

concerned, the same was also forwarded by the school.

However, what was forwarded by the school was not

considered to be `staff profile' by the respondent

authorities, and therefore, the respondent authority

has also rejected the application of the petitioner

for regularization on the ground that the petitioner

does not have `staff profile'. Learned advocate for

the petitioner submitted that the words `staff

profile' though is mentioned in the Government

Resolution dated 24.10.2017, the word `staff profile'

is not defined anywhere. Unless there is a clarity

about what is considered to be `staff profile' or it

is defined anywhere in the Government Resolution or

under any of the law governing the service conditions

of the petitioner, it is not open for the respondent

authorities to reject the application of the

petitioner on the ground that the petitioner does not

possess the `staff profile'. He further submitted

that more particularly when the petitioner is meeting

with all the requirements related to appointment of

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

higher secondary school teacher and has cleared the

TET examination in that case, in absence of there

being any definition for `staff profile' the

petitioner's application for regularization ought not

to have been rejected by the respondent authorities

on the ground that the petitioner does not possess

`staff profile'.

4.1 Except the aforesaid submissions, no other

submissions were made nor was any judgment referred

by the learned advocate for the petitioner.

5 Mr.Sahil Trivedi, learned Assistant

Government Pleader appearing on behalf of respondent

Nos.1 and 2 vehemently opposed the petition and

relied upon the affidavit in reply filed by one

Ms.Tarunaben L. Desai, Education Inspector, District

Education Office, Himmatnagar, Sabarkantha dated

9.5.2022 and affidavit in reply of the same deponent

dated 27.9.2022. By relying upon the aforesaid two

affidavits in reply Mr.Trivedi, learned Assistant

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

Government Pleader submitted that prior to 5.8.2010

at the time of appointment of higher secondary school

teacher for non-grant-in-aid school having `staff

profile' was a requirement. However, after the

petitioner was appointed on 29.7.2010 the Gujarat

Secondary and Higher Secondary Education Board vide

circular dated 5.8.2010 resolved to quash the

requirement of having `staff profile' of the teachers

to be verified by the concerned authorities.

Considering the fact that the present petitioner's

appointment was prior to 5.8.2010, and therefore, on

the ground that petitioner does not have verified

`staff profile', the petitioner's claim for

regularization has been rightly rejected. Further,

there is no answer coming forward from the learned

Assistant Government Pleader as to why the

application of the petitioner was rejected on the

ground of delay when the application was forwarded

after a delay of one week by the school, whereas, the

direction to apply through proper channel within 15

working days issued by the Tribunal was in respect to

the petitioner and not to the school.

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

5.1 Further, upon repeated queries from this

Court that whether the words `staff profile' is

defined anywhere or not and what is the definition of

`staff profile', learned Assistant Government Pleader

could not point out from any material or any rules,

regulations or Government Resolutions which would

define the word `staff profile' by making following

averments in para 2, which reads as under:

"2 By way of this additional affidavit, the answering respondent prays to bring on record the checklist which is called for when an application is made by a non-government / non- granted school for regularizing services of its teachers. A proforma checklist is attached hereto and marked as Annexure R1."

5.2 By relying upon the aforesaid averments,

the learned Assistant Government Pleader submitted

that if the record of a candidate selected as higher

secondary school teacher in non-grant in aid school,

is verified and sent by the school to the Government

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

authority then the aforesaid checklist in the

proforma attached to the affidavit is called `staff

profile'.

However, learned Assistant Government Pleader

could not point out that the aforesaid proforma was

made available to the schools and there was any

circular or instructions to the school to submit the

relevant details of the higher secondary teachers

appointed in non-grant-in-aid school to consider the

details filled in by the teacher as `staff profile'

and to verify the same and send it back to the

respondent authorities.

6 Mr.V.D.Parghi, learned advocate appearing

for respondent No.3 school supported the case of the

petitioner and submitted that the appointment of the

petitioner as Sikshan Sahayak in non-grant in aid

school was made by taking into consideration the fact

that the petitioner fulfills all the criteria to be

appointed as Sikshan Sahayak. Vide affidavit dated

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

12.6.2022 filed by the respondent No.3 school through

the President of Gujarat Adijati Uthan Parivar,

Chitariya it is stated that the petitioner was

appointed after following procedure and he is

qualified and has also passed the TET examination.

7 Heard learned advocates for the respective

parties and perused the documents available on

record. The short issue involved in this petition is

that the petitioner fulfills all the other criteria

to be appointed as Sikshan Sahayak in higher

secondary school, including passing of the TET

examination and was appointed prior to circular dated

5.8.2010, the application of the petitioner for

regularization pursuant to the policy framed by the

Government vide resolution dated 24.10.2017 was

rejected by the respondent authorities only on the

ground of delay in submitting the application of the

petitioner and on the ground that the petitioner does

not possess the `staff profile' nor was he possessing

`staff profile' at the time of his appointment.

      C/SCA/1886/2021                                               JUDGMENT DATED: 17/10/2022




7.1             As      far        as    the         first        reason        given         for

denying          the        benefit            of       regularization               to       the

petitioner is concerned the same is on account of the

fact that the petitioner's application was received

belatedly by the respondent authorities on 26.9.2018.

The Education Tribunal vide order dated 5.9.2018

directed the petitioner to make application to the

respondent through proper channel within a period of

15 days and it was for the school authorities, which

is proper channel in case of the petitioner to

forward it to the respondent Nos.1 and 2 authorities

thereafter. The period of 15 days was to be counted

from the date of the order i.e. 5.9.2018. In the

instant case, the application of the petitioner

forwarded by the school was received by the

respondent Nos.1 and 2 authorities on 26.9.2018,

which even if all the days from the date of the order

i.e. 5.9.2018 are considered to be working days, then

also was received by the respondent Nos.1 and 2 after

about a week. It is pertinent to note that the

aforesaid application was forwarded to respondent

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

Nos.1 and 2 by the respondent No.3 school which

received the application of the petitioner well in

time as it is not the case of the respondent No.3

school that they received the application of the

petitioner belatedly, and therefore, there was a

delay in forwarding the same.

7.2 When the petitioner has acted in accordance

with the order passed by the Education Tribunal dated

5.9.2018 and somehow it reached the respondent Nos.1

and 2 late, for that the petitioner cannot be faulted

with and therefore the reason given by the respondent

authorities for denying the benefit of regularization

to the petitioner on the ground that the petitioner's

application was received by the respondent Nos.1 and

2 authorities belatedly cannot sustain, and

therefore, the aforesaid order denying the benefit of

regularization to the petitioner on the ground of

delay in making the application is absolutely

unjustified.

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

7.3 Now, the only question remains that whether

the petitioner's claim for regularization can be

rejected by the respondent authorities on the ground

that the petitioner does not possess `staff profile',

and therefore, the conditions of Government

Resolution dated 24.10.2017 have remained

unfulfilled. That question is required to be

considered in light of the conditions prescribed by

Government Resolution dated 24.10.2017.

7.4 I have considered the tenor of the

Government Resolution dated 24.10.2017. It is true

that the aforesaid Government Resolution specifically

prescribes that the benefit of regularization can be

given only to the teachers, who are serving in the

non-grant-in-aid higher secondary schools and who are

having `staff profile' and have cleared TET

examination. However, there is no clarity about

`staff profile'. The word `staff profile' is neither

defined anywhere nor any proforma of `staff profile'

is provided by the respondent authorities, and

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

therefore, unless the candidate or the school, which

was selected the candidate is made aware about what

is `staff profile' and in which proforma it is to be

submitted, it cannot be said that what is forwarded

by the respondent No.3 school cannot be considered as

`staff profile'. If the authorities ask for specific

requirement to be fulfilled, in that case it is

incumbent upon the authority to define or explain

either by way of definition or by way of providing

proforma of the requirement that needs to be

fulfilled by the candidate or by the school. In the

instant case, despite repeated queries by this Court,

respondent Nos.1 and 2 through the learned Assistant

Government Pleader could not point out anything which

would indicate that there was a clarity about what

can be said to be `staff profile'. Though along with

the affidavit reply proforma of checklist is produced

by the respondent Nos.1 and 2. However, learned

Assistant Government Pleader upon query from the

Court was candid enough to submit that the aforesaid

checklist was never circulated among the schools and

candidates and they were never informed that only if

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

the details of the candidate is filled up in the

proforma annexed with the affidavit and cross

verified by the school, then and then only that

proforma can be considered to be `staff profile'.

7.5 When the word `staff profile' is neither

defined anywhere nor explained anywhere, it is not

open for the respondent authorities to reject the

claim of the petitioner on the ground that the

petitioner does not possess `staff profile' and hence

does not fulfill the conditions of Government

Resolution dated 24.10.2017.

7.6 In view of the above discussion, both the

grounds on which the petitioner has been denied the

benefit of regularization as per the policy of the

Government Resolution dated 24.10.2017, are

unsustainable and hence order dated 27.8.2020 whereby

the petitioner's application for regularization has

been rejected, is required to be quashed and the same

is hereby quashed to the extent it applies to the

C/SCA/1886/2021 JUDGMENT DATED: 17/10/2022

present petitioner only. The respondent authorities

are hereby directed to consider the case of the

petitioner for regularization in light of the

aforesaid discussion and to regularize the services

of the petitioner from the date on which case of

other similarly situated persons was considered for

regularization by the respondent authorities in

compliance with the direction issued vide Government

Resolution dated 24.10.2017 with all consequential

and incidental benefits.

8 Accordingly, this petition is allowed. Rule

is made absolute to the aforesaid extent. However,

there shall be no order as to costs.

Sd/-

(NIRZAR S. DESAI,J) P. SUBRAHMANYAM