Gujarat High Court
Pathan Usmankhan H vs Principal, Muslim High School on 12 January, 2023
Bench: A.Y. Kogje
C/SCA/11228/2019 JUDGMENT DATED: 12/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11228 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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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 ? 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 ?
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PATHAN USMANKHAN H
Versus
PRINCIPAL, MUSLIM HIGH SCHOOL
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Appearance:
MS.FALGUNI D.TRIVEDI(3912) for the Petitioner(s) No. 1
MR JAY MEHTA, AGP for the Respondent(s) No. 3
JEET Y RAJYAGURU(8039) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 12/01/2023
ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India
is filed against the judgment and order passed by the Education
Tribunal, Ahmedabad, in Application No.1837 of 2014 dated 28 th
July 2017 and it is prayed that the respondent authority be
C/SCA/11228/2019 JUDGMENT DATED: 12/01/2023
directed to pay pension and other retiral benefits to the
petitioner.
2. It is the case of the petitioner that though the petitioner
has served with respondent no.1 - School managed by
respondent no.2 - Trust since 1986 as an Assistant Teacher
initially on probation and after the probation on regular basis
and has discharged his duties for a period of 26 years, yet the
petitioner is not being given any retiral benefits upon his
retirement on 21st July 2011.
3. Learned advocate for the petitioner submitted that
respondent no.1 - School is a registered secondary school and
its name is also reflected in the list at Serial No.97 for Taluka
Dhoraji, therefore, respondent no.1 - School is a registered
school with the State authorities.
4. Learned advocate for the petitioner has referred to
Annexure-G, which is the deposition of the representative of
respondents nos.1 and 2 before the Education Tribunal, whereby
relying upon such deposition, the learned advocate contends
that the respondent - School should be treated as a grant-in-aid
school and, therefore, by applying the ratio of the decision of this
Court in the case of Kusumben E.Borasada vs. Government of
Gujarat and others, reported in (1997) 3 GLR 2159, the
respondent authorities ought to have held that the petitioner is
entitled to receive pension and other retiral benefits.
5. As against this, learned advocate for the respondent
Mr.Jeet Rajyaguru has controverted the fact that respondent
C/SCA/11228/2019 JUDGMENT DATED: 12/01/2023
no.1 is a grant-in-aid school by referring to the very deposition of
the witness before the Tribunal. He has submitted that the
respondent School was eligible to be treated as grant-in-aid
school in all respects, however, respondents nos.1 and 2, on
their own volition, have refused to accept the status of grant-in-
aid school and are running the school and the management on
self-financed basis.
6. Learned AGP, upon instructions, has submitted that the
State Government has no policy with regard to grant of pension/
retiral benefits to the employees of the schools which are not
grant-in-aid and are self-financed.
7. Having considered the rival submissions of the parties and
having perused the documents on record, the only issue that
arises for consideration by this Court is the entitlement of the
petitioner to pension and other retiral benefits in his capacity as
an Assistant Teacher in an educational institution which is self-
financed and not grant-in-aid.
8. In the case of Kusumben E.Borasada (supra), the
directions contained in paragraph 9.4 would read thus :
"The matter is squarely covered by the decision of the
Supreme Court in the case of State of Maharashtra vs.
Manubhai Pragaji Vashi (supra). The action of the
respondent - State of not extending the benefit of pension
scheme to the teachers of recognised, aided private primary
schools, though such benefit has been extended to the
teachers of private secondary and higher secondary schools
C/SCA/11228/2019 JUDGMENT DATED: 12/01/2023
and colleges which are recognised and aided, is patently
discriminatory and based on no material. The respondent
has not discharged the burden of proof cast on it to sustain
the differential treatment meted out to teachers of
recognised private primary schools receiving grant-in-aid. It
is patent that likes have been treated unlike without proper
justification or reason, and this class of persons have been
singled out for hostile discriminatory treatment. Disparity in
the service conditions, in not affording the benefit of pension
scheme to the teachers of recognised and aided private
primary schools is discriminatory and requires to be set
right."
9. The aforesaid makes it clear that the respondent State was
directed to extend the benefits of pension scheme to the
Teachers of recognized, aided primary schools. The evidence led
by the parties before the Tribunal would clearly indicate that
respondent no.1 - School, though was eligible in all respects to
be considered as a grant-in-aid school, yet the voluntary action
of the respondent - School for not being treated as a grant-in-aid
school has resulted respondent - School being not considered as
a grant-in-aid school in the list of the Education Department of
the State Government.
10. Obviously, the option lies with the management of the
school, whether or not to accept the grant and be treated as a
grant-in-aid school, as the status of grant-in-aid would invite
several other conditions which, perhaps, the school management
would not like to accept.
C/SCA/11228/2019 JUDGMENT DATED: 12/01/2023
11. In that view of the matter, when the school is not a grant-
in-aid school as is submitted on behalf of the State, there is no
scheme for grant of pension and retiral benefits to the employees
of the schools which are not grant-in-aid/self-financed.
12. In such circumstances, no interference is required in the
decision of the Education Tribunal. The petition, therefore,
stands dismissed.
(A.Y. KOGJE, J.)
/MOINUDDIN
