Gujarat High Court
Lataben Bharatbhai Desai vs State Of Gujarat on 24 January, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/32/2016 ORDER DATED: 24/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 32 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 18184 of 2014
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LATABEN BHARATBHAI DESAI
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 24/01/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. Hiren Modi for the
appellant, learned Assistant Government Pleader Mr.
Ronak Raval for respondents no. 1 and 2 and learned
advocate Mr. Manan Shah for respondent no.4. Rule
of this Court is served upon respondent no.3,
however, none has chosen to appear.
2. The challenge in this Letters Patent Appeal is
directed against the judgment and order dated
17.12.2014 of learned Single Judge whereby the
Special Civil Application filed by the appellant
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came to be dismissed.
3. What was prayed in this petition by the
appellant-petitioner was to set aside the action on
the part of the respondent no.4-Sarvajanik
Education Society in superannuating the petitioner
with effect from 17.01.2014 instead of 31.05.2017
and retiring the petitioner accordingly.
3.1 The petitioner was appointed as Assistant
Teacher by order dated 13.05.1987 pursuant to the
procedure of selection. The appointment of the
petitioner. who possessed qualification of SSC and
Pre-PTC, was in the school run by respondent no.4-
Sarvajanik Education Society. The date of birth of
the petitioner was 18.01.1959.
3.2 The grievance of the petitioner is that, as
far as the age of his retirement is concerned, Rule
34 of the Bombay Primary Education Rules, 1949, was
not applied. This Rule contemplated the age of
retirement to be 58 years for the primary teachers.
On the basis of the said Rule, he was liable to be
retired only on 31.03.2017, however the respondent
made him retire premature, submitted the
petitioner.
4. Contesting the petition and the prayers,
respondent no.4 filed affidavit-in-reply to exhibit
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the position emanating from Rule 34 of the
aforesaid Rules, which provided retirement age of
the primary teachers to be 55 years. It was
pointed out that the petitioner was appointed as
Assistant Teacher in pre-primary section of the
school. Whereas, Rule 34 of the Rules framed under
the Bombay Primary Education Act was applied to the
teachers appointed and discharging their duties in
the primary section.
4.1 The petitioner being pre-primary teacher,
would not stand covered by the said Rules,
contended the respondent. It was highlighted that
Rule 34 of the Rules would have no application in
case of the petitioner, a pre-primary teacher.
4.2 It was further the stand of the respondent
no.4 that a policy decision was taken pursuant to
which Resolution dated 25.03.2011 bearing no. 62 of
2010-11 was passed by the Education Department of
the respondent no.4 society. It was decided
thereby that in the pre-primary section, the
employees who had reached the age of 55 years or
more were liable to stand superannuated at the end
of first quarter of 2010-2011. It was provided
that the age limit of superannuation of the
employees working in the pre-primary division shall
be 55 years.
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5. Even as the Court has considered the rival
case on merits in respect of the applicable age of
retirement of the petitioner-pre-primary teacher,
a weighty aspect could not be brushed aside that
the only prayer in the petition filed under Article
226 of the Constitution was against respondent
no.4, which was a private entity. It was submitted
on behalf of the petitioner that the petition would
not be maintainable, on that ground alone.
5.1 When Rule 34 of the Rules was not applicable
to the petitioner and the petitioner was a teacher
admittedly in the pre-primary section, it was
competent for the school management to frame the
policy governing the age of retirement of the pre-
primary teachers. The rationale for passing the
Resolution dated 25.03.2011 is demonstrated by
averring in paragraph 6 of the affidavit that those
teachers working in pre-primary school were tested
for fitness on various dates in the year 2010-11
and it was found by the private non-grant in aid,
self financed institute that the teachers were
unable to perform the duties required of the kind
and nature, after attaining certain years of age.
5.2 The teaching was to be imparted in the pre-
primary section for the students in the age of 3-5
years. Having considered in this context, the
policy was adopted by the respondent no.4 to halt
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the the services of the petitioner for pre-primary
section once they attain the age of 55 years. It
cannot be said therefore that the respondent has
acted irrationally or unreasonably. The petitioner
could not establish his right to continue beyond 55
years.
6. For all the aforesaid reasons, learned Single
Judge has rightly treated the petition and the
prayers to be liable to rejection.
6.1 For the reasons stated above, no interference
is called for to the order of learned Single Judge
dismissing the petition.
7. This Letters Patent Appeal is meritless and is
dismissed.
(N.V.ANJARIA, J)
(PRANAV TRIVEDI,J)
BIJOY B. PILLAI
