State Of Gujarat vs Jyotsanaben Jaydevbhai Rajguru
2023 Latest Caselaw 7738 Guj

                                                                                 NEUTRAL CITATION




     C/LPA/1285/2023                             ORDER DATED: 19/10/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 1285 of 2023
           In R/SPECIAL CIVIL APPLICATION NO. 11317 of 2017
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
             In R/LETTERS PATENT APPEAL NO. 1285 of 2023
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                              STATE OF GUJARAT
                                    Versus
                       JYOTSANABEN JAYDEVBHAI RAJGURU
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Appearance:
MR MANAN MEHTA, AGP for the Appellant(s) No. 1,2,3,4,5,6,7,8
for the Respondent(s) No. 10,9
MR RAJENDRA PATEL with MR RUTVIJ R PATEL(10615) for the
Respondent(s) No. 1,2,3,4,5,6,7,8
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MS. JUSTICE NISHA M. THAKORE

                       Date : 19/10/2023
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Preferred by the State, this appeal under Clause 15 of the Letters Patent is directed against judgment and order dated 26.7.2022 of learned single Judge, thereby the petition was allowed and the petitioners were granted relief holding that they are entitled to the benefit of pension and other retirement benefits, to be paid from their respective dates of retirement, as available to the teachers of recognized private grant-in-aid primary school.

2. Amongst total eight petitioners who filed Special Civil Applications, the petitioner Nos.1 to 4 retired from service with effect from 31.10.2004, 31.5.2011, 31.5.2011 and 31.10.2011

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respectively. The rest of the petitioners are in service. The petitioners have served as Primary Teachers under respondent No.8 Gujarat Kumar Vinay Mandir, which is the school affiliated to respondent No.7 Gujarat Vidyapith.

2.1 In the writ petitions, the petitioners prayed that they were entitled to receive the pension and other retirement benefits. They prayed that respondent No.8 Primary School is required to be treated as recognized private grant-in-aid primary school so as to extend the benefit of pension etc. to the petitioners - teachers. While other retirement benefits were also prayed for to be granted with interest, the incidental prayer was made to direct the respondents to make payment of salary to the petitioners under the Direct Payment System.

3. The petitioners based their plea and the prayers on the decision of Division Bench of this court in State of Gujarat Vs. Kusumben E. Borasada. [2001 (3) GLH 659]. Upholding the view of learned single Judge, the Division Bench in Kusumben E. Borasada (supra) held that it was a hostile discrimination when the pension was paid to the teachers of non-government private and recognized grant-in-aid colleges, higher secondary schools and secondary schools, however the benefit of pension was not extended to the teachers working in the institutions- schools which are also non-government recognized private grant-in-aid schools but imparting primary education. It was held, as elaborated in observations in para 4 of the decision, that such classification and denial of pension to the teachers working in the primary school offends Articles 14 and 16 of the Constitution.

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3.1 The law laid down in Kusumben E. Borasada (supra) had mended the ways of the State Government. The Education Department issued Circular dated 6.4.2002 implementing what was held by the Division Bench of this court in Kusumben E. Borasada (supra). The primary teachers working in the non- government recognized grant-in-aid primary schools were treated at par for the purpose of pension scheme, with their counterpart working as teachers in the secondary or higher secondary schools of the same class. The scheme was formulated by the aforesaid circular dated 6.4.2002 and the primary teachers were extended the pension benefit once they fulfill the conditions of the scheme.

3.2 As far as the case of the present respondents- original petitioners are concerned, it is not in dispute that they otherwise fall within the scheme of circular dated 6.4.2002. Learned single Judge has rested its decision granting relief to the petitioners although law laid down by this court in Kusumben E. Borasada (supra) and further rested his reasons by further holding that the circular dated 6.4.2002 applies.

4. The above strong premises on which the impugned judgment and order of learned single Judge rested, was highlighted by learned advocate Mr.Rajendra Patel with learned advocate Mr.Rutvij Patel. It was difficult for learned Assistant Government Pleader Mr.Manan Mehta to dislodge the said aspects for their merits, as such emanating from Kusumben E. Borasada (supra).

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4.1 However, learned Assistant Government Pleader wanted to harp that the respondent No.8 School was not treated as government recognized grant-in-aid primary school. He invited attention of the court to the prayer made by the petitioners themselves to treat the school in such category. He therefore submitted that the judgment and order of learned single Judge granting relief to the petitioners is fraught with an error.

5. The court notices that the aforesaid aspect is succinctly addressed by learned single Judge. In para 19 of the order, it is observed that respondent No.8 school was very much recognized by the Government of Bombay in 1953 and the said recognition was continued. The school came to be deemed to have been recognized and approved as per Section 40 A (3) of the Bombay Primary Education Act, 1947, which is in respect of 'Prohibition against imparting Primary Education by Private Primary Schools without recolonization'. It was observed that the grant was extended to the school by the Government of Gujarat through the Office of the Commissioner of Higher Education which was in form of triennial.

5.1 A clear finding was recorded that at no point of time the school was non recognized or was not approved school. It was importantly stated that even under the provisions of Right of Children to Free and Compulsory Education Act, 2009 and under the Rules framed thereunder, the District Education Officer has given certificate of recognition dated 16.6.2012 duly amended extending approval to grant-in-aid standard 8.

5.2 There is an inescapable conclusion that the authorities

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have treated the respondent No.8 school which is affiliated to respondent No.7 deemed University - Gujarat Vidyapith to be a non-government recognized private primary institution.

5.3 The other aspects to be noticed, as recorded by learned single Judge are that the different benefits like mid-day-meal scheme, books, uniform etc. are also extended to the pupils of the primary school - respondent No.8. The addition of standard 8 was permitted. It is also not in dispute that the General Provident Fund of employees of the respondent school was regularly deducted from the salary of the employees and is deposited with the office of the District Education Officer by challan of the bank. Furthermore, higher pay scale to the employees of the school is also approved by the office of the District Education Officer and office of the local fund. The school is subjected to inspection by the office of the District Education Officer every year and the educational programs conducted by the government are extended to respondent No.7 school.

5.4 It has to be held that the school respondent No.7 falls within the category of government recognized grant-in-aid school by virtue of every treatment extended by the government equivalent and equal to those meted out to other government recognized grant-in-aid schools. The conclusions and findings of learned single Judge in this regard are eminently proper and legal.

5.5 It was further to note as highlighted by learned single Judge in para 20 of the order that petitioner Nos.1 to 4 are permitted to be exercised 'option' on 28.8.2002 pursuant to

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which the pension benefit under circular dated 6.4.2002 is given to them. The 'option' exercised by the petitioner came to be accepted by the office of the District Education Officer. The respondent No.7 Gujarat University deposited the amount of General Provident Fund and Contributory Provident Fund of the petitioners with the office of the District Education Officer, which is accepted by the said office.

5.6 Learned single Judge even recorded in para 21,

"The Finance Department has also filed its Affidavit wherein the stand is taken that respondent no. 8 was managed and run by Gujarat Vidhyapith since, 1927. At that time Gujarat and Maharashtra were joint states. Initially by Resolution dated 13.11.1953, it has been considered as post basic school and it was given grant for year 1953-54 as a special case and then after, the salary and other expenditures of Gujarat Kumar Vinay Mandir primary school is managed by Gujarat Vidyapith from his own fund. After formation of Gujarat state, primary section of Gujarat Kumar Vinay Mandir is not recognized as a Grant-in-aid private Primary school and no approval has been granted by Government as Grant-in-aid Private primary school. Thus, responded No.8 is only a recognized primary school which is run by Gujarat Vidhyapith."

6. On the basis of the above and other facts and aspects considered and duly appreciated by learned single Judge, it was held that where it is a policy of the State Government to treat the teachers of primary section to be entitled to pension, there is no reason as to why the petitioners who have served in respondent No.7 institution, which is a primary school

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recognized by the government and grant-in-aid, should not be treated at par. The petitioners were the regularly appointed primary teachers in primary section of respondent No.8 school imparting primary education which is recognized by the State Government. The respondent authorities could hardly take stand that respondent No.7 School was not liable to be treated as government recognized grant-in-aid primary school. The only submission which could be urged, therefore, falls flat, standing mertiless.

6.1 For the reasons recorded by learned single Judge and in view of the forgoing reasons supplied by this court, no case is made out by the appellant State requiring interference in the judgment and order of learned single Judge. The Appeal stands meritless.

6.2 The benefits flowing from the impugned judgment and order of learned single Judge shall be extended by the respondent authorities to the retired petitioners within a period of eight weeks from today.

7. The Letters Patent Appeal is accordingly dismissed.

In view of dismissal of the Appeal, the Civil Application will not survive, accordingly it is disposed of.

(N.V.ANJARIA, J)

(NISHA M. THAKORE,J) Manshi