Gujarat High Court

Rajesh Bhanjibhai Julasana vs Joint Secretary on 6 September, 2022

Bench: Biren Vaishnav

     C/SCA/20263/2021                             JUDGMENT DATED: 06/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20263 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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                        RAJESH BHANJIBHAI JULASANA
                                   Versus
                             JOINT SECRETARY
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Appearance:
MR PRITESH M SHAH(8405) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3,4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 06/09/2022

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned

Assistant Government Pleader waives service of notice

C/SCA/20263/2021 JUDGMENT DATED: 06/09/2022

of Rule for and on behalf of the respondent - State.

2. With the consent of the learned advocates for the

respective parties, this petition is taken up for final

hearing today.

3. Learned counsel for the petitioner would rely on an

order passed in similar matter by the coordinate Bench

of this Court namely; SCA No.21618 of 2019 dated

14.09.2022. He further requested this Court to pass a

similar order in this matter too. The order dated

14.09.2022 reads as under:

"RULE. Learned advocate Mr. Rohan Shah waives service of notice of rule for and on behalf of the respondents- State.

1) In the present writ petition, the petitioners have challenged the impugned decision dated 26.09.2019 passed by the respondent No.1 i.e. Joint Secretary, Education Department, Sachivalaya, Gandhinagar. A further direction is also sought upon the respondent No.1 for regularization of the service of the petitioners in higher secondary school of the respondent No.4 school.

2) Pursuant to the advertisement dated 18.06.2009, the

C/SCA/20263/2021 JUDGMENT DATED: 06/09/2022

petitioners had applied for the post of teachers in the Higher Secondary Section. Accordingly, the petitioners were selected as teachers and posted under the respondent No.4. At the time of appointment i.e. on 16.07.2019, the respondent No.4 school was run by the trust and the Higher Secondary Section, in which, the petitioners were appointed was not aided. The petitioners have passed Teachers Aptitude Test (TAT) examination in the years 2012 and 2014 respectively and the same were sanctioned by the District Education Officer. In the year 2012-2013, the respondent No.4 school was granted permission to run standards 11th and 12th as continuous unit with granted basis in the school. Thereafter, the Education Department of Gujarat passed resolution dated 24.10.2017 to treat the Secondary and Higher Secondary Sections as Separate Units. A decision was also taken to regularize services of such teachers, who were appointed by the school in the Higher Secondary Section during its Nongranted status. The only condition, which was imposed that for the purpose of regularization of such teachers is that they should have passed the TAT Examination and their job profiles should have been sanctioned by the District Education Officer. On 05.06.2018, the School Management has sent a communication to the Education Department, Gandhinagar, requesting to regularize the services of the petitioners, as was done in the case of other teachers, as per the resolution dated 24.10.2017. Since no steps were taken, the petitioners were constrained to file Special Civil Application No. 15656 of 2018 before this Court praying for issuance of necessary direction to the respondent authority to regularize the service of the petitioners. Vide order dated 03.07.2019, the writ petition was disposed of by directing the respondent authority to take a necessary decision within a period of six weeks. It appears that, thereafter, the case of the petitioners for regularization, has been rejected vide impugned decision dated 26.09.2019 on the ground of nonmentioning of outward number in the job profile.

3) Learned advocate Mr. Hriday Buch appearing for the petitioner has submitted that the impugned decision is hyper technical ground scuttling the claim of

C/SCA/20263/2021 JUDGMENT DATED: 06/09/2022

regularization as per resolution dated 24.10.2017. He has submitted that the petitioners were appointed as per the rules by undergoing the necessary recruitment process and after the same was also approved by the District Education officer, Ahmedabad Rural. They have also cleared the TAT examination, hence their case cannot be discriminated as similarly situated teachers have been regularized as per the resolution dated 24.10.2017. He has also referred to the proposal sent by the District Education Officer to Joint Director of Education on 15.02.2019, wherein, in the proforma of proposal, the details are mentioned with regard to the service condition as well as the recruitment of the present teachers. It is submitted by him that the District Education Officer, who had approved the appointment of the petitioners in the year 2010 was also consulted and he had also opined that the appointment of the petitioners was in accordance with rules. Thus, he has submitted that the impugned communication may be set aside and the respondent authority may be directed to give similar benefits, which are given to the similarly situated teachers.

4) In response to the submissions advanced by the learned advocate for the petitioner, learned Assistant Government Pleader Mr. Rohan Shah has submitted that in order to see that illegally appointed teachers are not extended the benefits of the resolution dated 24.10.2017, the State Government has asked for Outward number of their appointments. He has submitted that the Outward number is necessary in order to extend the benefits of the resolution dated 24.10.2017, as the same would indicate that the original appointment of the petitioners was in accordance with law. He has submitted that thus, in absence of the any Outward number, the petitioners cannot be extended the benefits of the resolution dated 24.10.2017.

5) I have heard the learned advocates appearing for the respective parties.

6) The impugned communication dated 26.09.2019, issued by the respondent authorities, reveals that the

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claim of the petitioners for regularization as per the resolution dated 24.10.2017 has been rejected only for the reason that in their staff profile, the Outward number is not mentioned. It is not the case of the respondent authorities that the initial appointment of the petitioners are illegal or de hors the recruitment process. The petitioners were appointed on 11.06.2010 and their staff profile at Annexure-D, which clearly reveals that such appointment has been approved by the District Education Officer, Ahmedabad (Rural) and it has been certified that their appointment is as per the Rules.

7) It appears that after the resolution dated 24.10.2017 was promulgated by the State for regularization of the teachers, who are working under the Higher Secondary Section in the private schools and those who have cleared TAT examination, such teachers were regularized in the Higher Secondary Section. From the impugned communication, it appears that the proposal of total 271 teachers were sent along with the petitioners and out 271, 178 teachers were conferred the benefits of the resolution dated 24.10.2017. The present petitioners were not included in the list of such candidates, who were conferred the said benefits. After the aforesaid resolution was issued, the State Authorities were also asked to send the necessary details with regard to the appointment of the teachers, who have completed TAT examination and accordingly in case of the petitioners, the District Education Officer, Ahmedabad (Rural) had verified all the details from the school as well as from the then District Education Officer, who was serving at the relevant time, when the teachers were appointed and he has categorically stated that the petitioners are regularly appointed as per the rules and they have been continuously serving since the year 2010. Necessary bank details were already sent along with their service books and the mark-sheet to the Director of Education Department. Thus, the legality and validity of the appointment as well as the Educational qualification of the petitioners is not doubtful and only reason, as narrated hereinabove for rejecting the case of the regularization, is of not having an Outward number.

C/SCA/20263/2021 JUDGMENT DATED: 06/09/2022

8) In the considered opinion of this Court, such an objection raised by the respondent authorities, cannot obliterate the legality and validity of the appointment of the petitioners as well as the Educational qualification and their claim for regularization. The stand taken by the authority is absolutely hyper technical in nature. Once it is found that the petitioners fulfill all the educational qualification and their recruitment is as per the law, their claim for regularization cannot be jeopardized for want of an Outward number only. Thus, the communication dated 26.09.2019 is hereby quashed and set aside. The respondent authorities are directed to confer the benefits of regularization to the petitioners as per resolution dated 24.10.2017. Appropriate order shall be passed within a period of eight (08) weeks from the date of receipt of the order of this Court.

9) The present writ petition is allowed. Rule is made absolute. Direct service is permitted."

4. Mr. Kurven Desai, learned AGP for the respondents

would object to the learned counsel for the petitioner

placing reliance on an order dated dated 14.09.2022

passed in SCA No.21618 of 2019 on the ground that

the petitioner has applied for regularization post this

order of 14.9.2021.

5. In view of the above, the present petition shall also be

governed by the Oral Order of this Court dated

14.09.2022 passed in Special Civil Application

C/SCA/20263/2021 JUDGMENT DATED: 06/09/2022

No.21618 of 2019 and is disposed of in the same