Baria Sureshbhai Chandubhai vs The State Of Gujarat
2023 Latest Caselaw 6971 Guj

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      C/SCA/12429/2023                              JUDGMENT DATED: 21/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/SPECIAL CIVIL APPLICATION NO. 12429 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                Sd/-

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1       Whether Reporters of Local Papers may be allowed to               No
        see the judgment ?
2       To be referred to the Reporter or not ?                           No
3       Whether their Lordships wish to see the fair copy of the          No
        judgment ?
4       Whether this case involves a substantial question of law          No
        as to the interpretation of the Constitution of India or
        any order made thereunder ?

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                         BARIA SURESHBHAI CHANDUBHAI
                                    Versus
                             THE STATE OF GUJARAT
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Appearance:
MR. HARDIK J JANI(6497) for the Petitioner(s) No. 1
MR. JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
MR HARDIK Y RAVAL(13383) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                               Date : 21/09/2023
                               ORAL JUDGMENT

[1] Rule. Learned advocates appearing for the respective

respondents waive service of notice of Rule on behalf of the

respective respondents.

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[2] By way of this petition under Article 226 of the

Constitution of India, a challenge is made to a decision dated

23.03.2023 taken by respondent authorities whereby a request

for regularization was not considered on the ground that the

"staff profile" is not being held and as such by virtue of

Government Resolution dated 24.10.2017, request cannot be

considered.

[3] The brief backgrounds of the case is that in June, 2010,

respondent No.4 - School was granted permission to operate

Class-11 (General Stream) without grant-in-aid facility by the

Gujarat Secondary and Higher Secondary Education Board,

Gandhinagar and pursuant to which, an advertisement came to

be published on 03.07.2010 for the post of "Assistant Teacher"

in local daily newspaper, namely, Sandesh inviting applications

from the candidates possessing M.A., B.Ed. degree for the

subject of Economics / History for teaching in its Higher

Secondary Section, as indicated above. The petitioner had

made an application on 12.07.2010 with necessary documents

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and since the petitioner was qualified to the said post, was

called for interview and on 12.07.2010, the petitioner had

appeared in interview process and he was selected for the post

of "Assistant Teacher". The interview process Rojkam was also

drawn on the very same day on 12.07.2010. The petitioner

pursuant to such process of selection was appointed to the post

of Assistant Teacher in the Higher Secondary School run by the

respondent No.4. On 15.07.2010, the school had prepared a

"staff profile" of the petitioner and sent it to the Office of

District Education Officer i.e. respondent No.3 for due

verification and approval. Later on, the same was forwarded to

an appropriate authority whereupon on 27.04.2011, the

Education Department of the State of Gujarat passed a

resolution taking a decision to treat the Secondary and Higher

Secondary Sections as a Single and Continuous Unit in the

schools which were earlier treated as Separate Units. In

somewhere in June, 2011, the school was granted permission to

operate Class-12 (General Stream) without grant-in-aid facility

by the Gujarat Secondary and Higher Secondary Education

Board, Gandhinagar and since the petitioner had passed the

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examination of Teachers' Aptitude Test (TAT - Higher

Secondary) on 17.01.2012 with 135 marks out of total 250

marks.

[3.1] On 26.09.2012, the school of respondent No.4 has applied

for grant-in-aid facility to run Class-11 (General Stream) as a

continuous unit by the respondent No.2. Later on, on

24.10.2017, the Education Department of State Government had

passed Government Resolution and regularized the services of

total 178 teachers who were appointed by the Higher Secondary

School during its non-granted status, but subsequently, applied

as grant-in-aid facility by the Government. On 05.09.2018, the

Gujarat Educational Institutions Services Tribunal, Ahmedabad

(for short "Tribunal) had disposed of Application (NEW)

No.1542 of 2014 filed by the petitioner and allied applications

filed by some other teachers by its common oral judgment dated

05.09.2018 by directing the respondent authorities i.e. District

Education Officer, Commissioner of Schools and School

Management to consider the case of present petitioner and

others for regularization in service it true spirit of Government

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Resolution dated 24.10.2017 passed by the Education

Department of State Government.

[3.2] It is the case of the petitioner that on 06.09.2019, the

Commissioner of Schools i.e. respondent No.2 had issued

standing instructions to all the District Education Officers of the

State of Gujarat to collect and send him the necessary

information of the teachers who were left out to regularize the

services in view of Government Resolution dated 24.10.2017

and who are still continuing in the services. On 14.09.2020,

since nothing was done by the respondent authority, the

petitioner once again approached the Gujarat Educational

Institutions Services Tribunal, Ahmedabad by way of Application

No.48 of 2020 requesting for issuance of directions to the

respondent authorities to grant the benefit of regularization to

him in view of Government Resolution. On 02.09.2022, the

Education Department i.e. respondent No.1 had further issued

Government Resolution for regularizing the services of the

Teachers of Higher Secondary Schools having "staff Profile" and

TAT Certificate and left out teachers for regularization in view

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Government Resolution dated 24.10.2017. On 07.12.2022, the

Tribunal had passed interim order by directing the D.E.O.,

Godhra to send necessary detail particulars to the

Commissioner of Schools along with proposal for regularizing

the services of the petitioner in view of Government Resolution

dated 24.10.2017 and also to furnish further orders in this

regard. On 22.12.2022, the Tribunal, Ahmedabad by its

common order passed in Applications No. 48 & 49 of 2020 had

directed the Commissioner of Schools, Gandhinagar to decide

the application of the petitioner for regularization of service as

sent by D.E.O. within a period of 30 days from the date of its

order. Simultaneously, on 22.12.2022, the D.E.O., Godhra,

District Panchmahal had sent proposal in two copies along with

necessary documents to the Secretary, Education Department,

Gandhinagar for proceeding for regularizing the services of

petitioner. However, on 23.03.2023, the Commissioner of

Schools i.e. respondent No.2 had rejected the prayer of

regularization of services made by the petitioner solely on the

ground of not having "staff profile" and when said decision was

communicated on 03.04.2023, left with no other alternate, the

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petitioner has approached this Court by way of present petition

under Article 226 of the Constitution of India.

[4] On prima facie, appraisal of the facts, the co-ordinate

Bench of this Court on 21.07.2023 had issued notice and in the

meantime, granted an order of status quo to maintain service

conditions of the petitioner till next date of hearing. With these

backgrounds, the present petition has come up for consideration

before this Court.

[5] Mr. Hardik J. Jani, learned advocate appearing for the

petitioner has submitted that the sole ground on which the

request for regularization is refused is that petitioner is not

having a "staff profile" and to contend this, learned advocate for

the petitioner has drawn the attention to the impugned order

dated 23.03.2023, reflecting at page 23, Annexure A, and has

pointed out from last column on page 24, the sole reason which

has been assigned for not considering the case of the petitioner.

Mr. Jani, learned advocate has further drawn the attention of

this Court to the communication dated 20.07.2010, reflecting on

page 39, whereby the respondent Kelavani Mandal had already

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submitted the "staff profile" to the office of District Education

Officer which is undisputedly in receipt of the same and after

bringing it to the notice of this Court, Mr. Jani, learned advocate

has drawn the attention to the Government Resolution dated

24.10.2017, reflecting on page 47, whereby the condition

precedent engrafted in the Government Resolution are stated to

be fulfilled. Mr. Jani, learned advocate has also submitted that

petitioner has already cleared TAT examination, further he has

also having "staff profile" and he is in continuance of service and

as such the conditions which are contained in the Government

Resolution dated 24.10.2017 are being fulfilled by the petitioner

and as such, erroneously a decision is taken by respondent

authority not to regularize the petitioner's services.

[5.1] Mr. Jani, learned advocate appearing for the petitioner has

further submitted that almost similar circumstances, there are

several orders passed by the coordinate Benches of this Court

considering the cases of regularization and one of such orders is

dated 17.10.2022 passed in Special Civil Application No. 1886

of 2021, reflecting on page 97 and by referring to the relevant

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paragraphs and the observations contained in the said order

from paragraph 7.3 onwards, it has been submitted that even in

cases where the "staff profile" is not there and other relevant

conditions are being fulfilled of Government Resolution dated

24.10.2017, the cases for regularization have been considered

and the benefits have been extended and it has further been

provided that this very order passed by the learned Single Judge

dated 17.10.2022 is confirmed by Division Bench of this Court in

a recent passed order in Letters Patent Appeal No.860 of 2023

decided on 25.07.2023 and as such when the conditions

stipulated in the Government Resolution are being observed by

the petitioner, there is no germane reason for Commissioner of

Schools to deviate from the said resolution and allowing such

order to sustain would defeat the very purpose of Government

Resolution and as such has submitted that since the sole reason

is about the "staff profile" the order dated 23.03.2023 deserves

to be quashed and set aside on this count alone insofar as it

relates to present petitioner.

[5.2] Mr. Jani, learned advocate appearing for the petitioner

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has further drawn the attention to yet another decision passed

by the coordinate Bench of this Court dated 21.12.2021

delivered in Special Civil Application No.12094 of 2013 wherein

also by taking into consideration the relevant stipulations

contained in Government Resolution, a decision is taken and as

such there is no other reason available for the respondent

authority to refuse the request of regularization. Accordingly,

Mr. Jani, learned advocate has submitted that the order dated

23.03.2023 deserves to be quashed in the interest of justice.

[6] Mr. Hardik Y. Raval, learned advocate appearing for the

respondent Mandal has in chorus submitted that in similar

situation the Courts have taken the view which also being part

of the record, deserves consideration and has requested to

consider the request of the petitioner.

[7] As against this, Mr. Jayneel Parikh, learned Assistant

Government Pleader appearing on behalf of the state authority

has initially vehemently tried to oppose the petition mainly on

the ground that "staff profile" dated 20.07.2010 which has been

sent for approval is whether approved or is not clear and as

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such the Commissioner has not committed any irregularity in

taking decision. Learned Assistant Government Pleader has

submitted that no doubt the sole reason is about the "staff

profile" but in the absence of any approval thereof, it cannot be

said that any error is committed by the Commissioner while

passing the impugned order.

[7.1] Learned Assistant Government Pleader however has

candidly submitted that there is no escape from the decision

delivered by coordinate Bench of this Court which is being

relied upon dated 17.10.2022 which is also confirmed in Letters

Patent Appeal No.860 of 2023 and has left it to the discretion of

the Court.

[8] Having heard the learned advocates appearing for the

respective parties and having gone through the material on

record, it appears that petitioner has been fulfilled the

conditions which are stated in the Government Resolution dated

24.10.2017 as prima facie indicates that he is in the service with

adequate qualification and having clear the TAT examination

and as such the prima facie stipulations which are contained in

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the Government Resolution dated 24.10.2017 are being

observed by the petitioner which fact is not in dispute.

[9] At this stage, a perusal is also made by the Court that way

back in the year 2010 for the purpose of indicating to the

authorities "staff profile" has been forwarded to the office of

District Education Officer which is reflecting on page 39 and the

sole reason which is reflecting in an order dated 23.03.2023 is

about not having "staff profile" except this there is no other

reason which is reflecting from the impugned order and as such

a perusal of the decision delivered by coordinate Bench of this

Court which has already interpreted the Government Resolution

dated 24.10.2017 and has specifically observed with regard to

the condition of "staff profile", it appears that the reason

assigned by the Commissioner is not sustainable in the eye of

law and not in consonance with the decision delivered by the

coordinate Bench of this Court wherein undisputedly the office

of Commissioner is a party. At this stage, since the issue is

centering around the condition relates to "staff profile" the

observation made by coordinate Bench of this Court, the Court

would like to reproduce hereunder:-

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"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 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

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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 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 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

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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."

[10] Keeping the observation made by coordinate Bench of this

Court which has also been re-examined by the Division Bench of

this Court and in an order dated 25.07.2023 in Letters Patent

Appeal No. 860 of 2023 against this very order passed by the

learned Single Judge after perusing the material and after

extending full opportunity to the parties, the Letters Patent

Appeal came to be dismissed as found to be devoid of merits and

as such the view taken by the learned Single Judge is affirmed.

This fact is also not in dispute nor in a position to be

controverted by the learned Assistant Government Pleader.

[11] Considering the aforesaid circumstances which are

prevailing on record and in view of the facts that the petitioner

is having requisite qualification and he is fulfilling undisputedly

the criteria mentioned in Government Resolution dated

24.10.2017 the decision taken by respondent authority dated

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23.03.2023 insofar as petitioner is concerned is not sustainable

in the eye of law and if allowed the same would run counter to

the decision taken by the learned Single Judge which is affirmed

by Division Bench of this Court. Hence, the refusal for request

for regularization is unsustainable. Accordingly, present

petition stands allowed with following directions:

(i) The impugned order dated 23.03.2023 is

hereby quashed and set aside and as a consequence

thereof the respondent authorities are directed to

consider the case of the petitioner for regularization in

the light of aforesaid discussion and in the light of the

Government Resolution dated 24.10.2017 with all

consequential and incidental benefits and while taking

decision the authorities are also directed to consider

the circumstance that if similarly situated employees

are also considered for regularization by this very

authority. In view of this, respondent authorities are

directed to consider the case within a period of three

weeks from receipt of writ of this Court.

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(ii) Accordingly, petition stands allowed. Rule is

made absolute. No order as to costs.

Direct service is permitted.

Sd/-

(ASHUTOSH SHASTRI, J.) DHARMENDRA KUMAR