Gujarat High Court

Natvarlal Kantibhai Prajapati vs State Of Gujarat on 25 June, 2025

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                             C/SCA/11687/2018                                          ORDER DATED: 25/06/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 11687 of 2018
                                                         With
                                      R/SPECIAL CIVIL APPLICATION NO. 7626 of 2018
                                                         With
                                     R/SPECIAL CIVIL APPLICATION NO. 11486 of 2018
                                                         With
                                     R/SPECIAL CIVIL APPLICATION NO. 11509 of 2018
                      ==========================================================
                                                NATVARLAL KANTIBHAI PRAJAPATI
                                                            Versus
                                                   STATE OF GUJARAT & ORS.
                      ==========================================================
                      Appearance:
                      MRS NISHA M PARIKH(2397) for the Petitioner(s) No. 1
                      MR. HENIL SHAH, AGP for the Respondent(s) No. 1,3,4 in SCA/11687/2018
                      MS. SURBHI BHATI, AGP for the Respondent(s) No. 1,3,4 in SCA/7626/2018
                      MR. PARTH PATEL,AGP for the Respondent(s) No. 1,3,4 in SCA/11486/2018
                      MR. HENIL SHAH, AGP for the Respondent(s) No. 1,3,4 in SCA/11509/2018
                      MR HS MUNSHAW(495) for the Respondent(s) No. 2,7
                      MS MAMTA R VYAS(994) for the Respondent(s) No. 5
                      NOTICE SERVED for the Respondent(s) No. 6
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 25/06/2025
                                                              ORAL ORDER

1. Since the prayers, issues and facts involved in the

present petitions are almost identical in nature, hence, at

the request of learned advocates for the parties, the

matters are taken up for final consideration and Special

Civil Application No.11687 of 2018 is considered as lead

matter and all the matters are argued and heard

together.

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2. The present leading petition i.e. Special Civil

Application No.11687 of 2018 is filed for seeking the

following reliefs:

"(A) YOUR LORDSHIPS further be pleased to direct the respondents to consider the service of petitioner as continue from 18/06/1986 to till date for all benefits in the interest of justice;

(B) YOUR LORDSHIPS be pleased to direct the respondent authority to service of petitioner consider the as a continue service and direct the respondent no. 6 to fulfill his service book as from the date of joining i.e. 18/6/1986 till the date of salary paid by him and further direct the other authority to consider the respondent same as continuity of service in the interest of justice. a

(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as are deemed fit in the interest of justice;"

3. Brief facts of the case as stated in leading petition

i.e. Special Civil Application No.11687 of 2018 are as

under:

3.1 It is the case of the that the petitioner in the

present petition that the petitioner was working as a

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teacher in respondent no.6 school in primary section from

the date of his appointment i.e. 18.08.1986. There were

two classes of Standard-6 and three classes of Standard-7

in the respondent school. All of a sudden, the respondent

no.5 decided to close both the Standards 6 and 7 and

accordingly, a letter was written to the Government for

granting permission to close the classes. It appears that

the Government though granted permission, it was

categorically conveyed that the Government is not

responsible for making payment to the employees. After

getting permission, the respondent no.2 passed resolution

dated 22.02.1992 to close the classes and petitioner -

teacher to terminate from respondent the no.6 school.

Accordingly, the respondent no.6 issued show cause notice dated 20.05.1992 and without following the procedure as

laid down under the Bombay Primary Education Tribunal

Act, service of petitioner and teachers was brought to

end. Against the illegal termination order, the petitioner

approached the Gujarat Primary Educational Tribunal at

Ahmedabad. The Hon'ble Tribunal allowed the application

of the petitioner and passed order dated 27.07.1994 that

impugned order of termination of the service of the

petitioner dated 01.03.1991 are quashed. The petitioner is

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declared as continuity in service in the opponent school

as before. Opponent's school is directed to pay them

their due salary w.e.f. 01/06/1992 to 31/02/1994 and go

on paying their regular salaries from month to month as

and when they became dues.

3.2 It is further the case of the that the petitioner in

the present petition that against the order dated

27.07.1994, the respondent no.2 and 3 approached this

Court by way of filing Special Civil Application No.7648

of 1995. After hearing both the parties, this Court vide

common judgment dated 04.10.2004 confirmed the order

dated 27.07.1994 passed by the Education Tribunal, but

the petitioner was not allowed to join his duties. The

petitioner was constrained to issue one notice dated 29.01.2005 through advocate for compliance of the order

dated 04.10.2004 passed by this Court in Special Civil

Application No.7648 of 1995 to the respondent no.1 and

initiate contempt proceedings against opponents before

this Court by way of Misc. Civil Application No 731 of

2005.

3.3 It is further the case of the that the petitioner in

the present petition that during the pendency of the

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contempt application, the respondent No.2 has filed the

LPA No. 103 of 2005 before this Hon'ble Court. Both the

parties had tried to compromise, but the management of

the school did not agree with the terms and conditions

of the compromise purses. Therefore, the Division Bench

of this Court passed order on 27.09.2005 to pay 50%

amount of total due back wages in installment to the

teachers and for the other remaining due amount, it will

be considered subject to the final calculation that may be

made in the Letters Patent Appeal.

3.4 It is further the case of the that the petitioner in

the present petition that service book of the petitioner

was not full filled by the respondent school and not

forwarded to the Government for further consequential benefits. Even the Government Authority has not taken

any action for granting the pensionary benefits and both

the respondents are orally replied that it is not their

duty to provide further benefits. Petitioner's family was

going on starvation and he was not able to pay school

fees of his children therefore he has to accept the job as

a Vidhya-Sahayak Jasanwada on 22/06/2000 at Village:

Taluka: Diyodar, District: Banaskantha. After completion

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of five years petitioner was appointed on regular pay on

28.12.2005 at Village: Kankrej District: Banaskantha.

3.5 It is further the case of the that the petitioner in

the present petition that the petitioner made

representation on 29.05.2017 to the District Primary

Education Officer, Patan to consider the service of the

petitioner as a continued service from 15.05.1985 to till

date. As per the order of the Education Tribunal to

consider the service of the petitioner as continued service

which was further confirmed by this Court. But the

concerned authority did not consider the service of the

petitioner as continued service. Hence, the present

petition has been preferred.

4. Heard Ms. Nisha Parikh, learned advocate for the

petitioner, learned AGP for the respondent Nos.1, 3 and

4 - State, Mr. H.S. Munshaw, learned advocate for the

respondent Nos.2 and 7 and Ms. Mamta Vyas, learned

advocate for the respondent Nos.5 and 6 respective

petitions.

4.1 Ms. Nisha Parikh, learned advocate for the

petitioner has submitted that all the petitioners in

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respective petitions are working honestly and sincerely

and they are appointed in the year 1986 and onwards in

school as teachers and they are working with respondent

No.6 - school where there were two classes of Standard

VI and three classes of Standard VII in respondent No.6

school. She has submitted that respondent No.6 has

decided to close both the classes i.e. standard six and

seven. Accordingly, a letter was given to the Government

for granting prayer to close the said classes. It

transpires that the Government has granted permission

but conveyed to the school that the government is not

responsible for making payment to the employees.

Thereafter, after getting permission, the respondent No.6

passed a resolution dated 22.02.1992 to close the classes by terminating the teachers e.g. all the present

petitioners from the respondent No.6 school. Thereafter,

respondent no.6 issued show cause notice on 22.05.1992

without following the procedure as laid down under the

Bombay Primary Education Tribunal Act and in

contravention of the provisions of the said Act, without

granting the opportunity of hearing, the services of the

petitioner and various other teachers were brought to

an end on the same day. Thereafter, the petitioners have

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approached the Gujarat Primary Educational Tribunal at

Ahmedabad and The Tribunal has allowed the application

in the year 1994 and has held that the orders of

termination of service of the respective petitioners are

quashed and school was directed to pay their due

salary from 01.06.1992 to 28.02.1994 and go on pay their

regular salaries from month to month as and when they

become due.

4.2 He has also submitted that the Tribunal has

further directed that it will be open for the opponent

school to comply with the procedure prescribed under

Rule 40(B)(1) of the Bombay Primary Education Rules,

1949 and passed the order of termination if it deems fit and necessary. Thereafter, the respondent Nos.2 and 3

have approached this Court by way of filing petition i.e.

Special Civil Application No. 7647 of 1995 whereby the

Co-ordinate Bench of this Court has vide order dated

04.10.2004 confirmed the order passed by the Gujarat

Primary Education Tribunal.

4.3 She has further submitted that the respondent No.

2 has approached this Court by way of Letters Patent

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Appeal No.103 of 2005 against the order passed in

Special Civil Application No.7647 of 1995 on 26.09.2005.

4.4 She has further submitted that in view of this also,

the petitioner in respective petitions, was neither taken

in service nor were they paid any salary and, therefore,

the petitioner has approached this Court by way of

contempt application vide Miscellaneous Civil Application

No.731 of 2005 whereby the Division Bench of this Court

has passed the order on 26.09.2005 whereby the

petitioner had shown his willingness to accept 50% of

the total amount towards back wages in view of the

pendency of Letters Patent Appeal No.103 of 2005 before

the Court.

4.5 She has further submitted that the Division Bench

of this Court has dismissed the Letters Patent Appeal

No.103 of 2005 by order dated 21.01.2014. She has

further submitted that thereafter also, no amount was

been paid to him towards salary and, therefore, the

contempt application being Miscellaneous Civil Application

No.168 of 2015 was filed before this Court and

respondent No.6 school has paid the due amount of

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salary to the petitioner but service book has not been

filled by the respondent school and not forwarded to the

Government for further benefits. She has also submitted

that in the present petition, the petitioner has accepted

the job as Vidya Sahayak on 22.06.2000 at village

Jasanvada, but other petitioners of remaining captioned

petitions have not accepted the same and they were

retired in due course. She has further submitted that the

petitioner has made representation to the District

Primary Officer to consider his services on 21.04.2014 to

consider his service as continuous service from the year

of his appointment and thereafter, the present petition is

filed by the present petitioner and the other captioned

petitions have been filed by the respective petitioners, who are having similar facts said.

4.6 She has further submitted that all the petitioners

are challenging the impugned action of the respondents

for not considering the case of the respective petitioners

for the pensionary benefits and such a refusal by the

authority will amount to none application of mind and

hence, the impugned order is required to be quashed and

set aside. She has further submitted that the respondent

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- authorities are required to give benefits which are

accrued by way of the services rendered by the

petitioners and more particularly consider the case of the

respective petitioners for the consequential benefits. She

has further submitted that respondent authorities have to

consider that in various orders passed by this Court in

various proceedings, the service of the petitioners are

required to be continued from the date of appointment

and, therefore, respective petitioners are entitled to claim

benefits according to their full services. She has further

submitted that such services rendered by them after the

year 1992 are required to be recorded in the service

book and to be considered as continuous service.

Moreover, it is submitted that respondent No.6 has not even calculated the amount properly, while providing

salary amount as directed by this Court and at the

relevant point of time, this Court has also permitted

the present petitioner(s) to approach this Court by way

of appropriate proceedings and, therefore, the present

petition is filed, which is required to be considered

appropriately. She has further submitted that the

contention raised in affidavit-in-reply filed by the

respondent Nos.2, 5 to 7 is misconceived and in vague

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manner. She has further submitted that the present

petitioners in respective petitions are entitled for

pensionary benefits and, therefore, prayers prayed in the

present respective petitions are required to be granted.

5.1 Per contra, learned AGP for the respondent Nos.1, 3 and 4 - State has referred to the affidavit-in-reply filed

by respondent No.3 and has submitted that the present

petition is required to be dismissed as petitioner has

prayed to consider the service of the petitioners from the

date of appointment in the year 1986 and other dates of

appointments in their respective petitions of respective

petitioners. It is also contended that the respondent No.5

- Trust has requested by way of communication dated

18.06.1990 for closing of primary section of standard vi and vii; and pursuant to that communication, the

Education Department by communication dated 20.12.1991

had granted permission to discontinue the classes.

Pursuant to the discontinuation of Standard VI and VII

of said school, the services of the petitioners were

discontinued. The petitioner thereafter approached the

Gujarat Primary Education Tribunal, whereby the

termination order was quashed on the ground that it is

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past dehors Rule 40(B) of the Bombay Primary Education

Rules, 1949.

5.2 Learned AGP for the respondent Nos.1, 3 and 4 -

State has further contended that learned Tribunal has

also directed the respondent Nos.5 and 6 - Trust as well

as school respectively that the salaries will have to be

paid by the opponent - school irrespective of availability

of grant and there are no direction against the

respondent - State, which has issued by the Tribunal.

The said order was challenged by the authorities as

mentioned in the arguments of the learned advocate for

the petitioner and by referring to it, it is submitted by

learned AGP for the respondent Nos.1, 3 and 4 that the

present petition is also required to be dismissed as petitioners were terminated by the respondent school in

the year 1992 and petitioners have been directed to be

granted back wages by the Tribunal vide order dated

27.07.1994, but at no point of time, the Tribunal has

directed to reinstate the service of the petitioners in

respective petitions and even the petitioners have not

preferred any application to the concerned DEO of

Banaskantha or to the Education Department for

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declaring them as surplus and readjust them as teachers

in any other place in the State of Gujarat as per the

prevailing policy. It is also contended that in the present

petition, the petitioner was subsequently appointed as

Vidya Sahayak in another school and therefore also, it

cannot be said that all the petitioners are working

continuously from the date of recruitment with the school

till the date of filing of the present petition. It is also

contended that the petitioner was working as primary

teacher in grant-in-aid primary school whereby the

present petitioner subsequently appointed in the

government school and, therefore also, there is no

provision to consider the earlier services of any primary

teacher, who were working in separate schools managed by either Trust or NGO, but not directly by the

Government. It is also submitted by the learned AGP for

the respondent Nos.1, 3 and 4 that there is huge gap of

10 years and there is no provision to consider earlier

services of grant-in-aid school to the government school

in the case of present petitioner. In view of that, it is

submitted that present petition deserves to be dismissed.

6.1 Ms. Mamta Vyas, learned advocate for the

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respondent Nos.5 and 6 respective petitions has referred

to the affidavit-in-reply filed by them, more particularly,

referred to the factual aspects, which are contended by

learned advocate for the petitioners as well as learned

AGP and has submitted that school has paid salaries

from own fund of the Trust and in the contempt

application filed by the present petitioner, the said facts

were pointed out before this Court and this Court has

on 29.03.2016 has specifically observed that the petitioner

cannot be permitted to perpetuate fiction in technicality

that he would be still considered in our school's

employment. The Court has granted permission only to

the extent that if calculation is found to be faulty and if

any amount or other admissible benefit under law is still outstanding, liberty to appraoch the Court with

appropriate calculation and under appropriate proceeding

is granted.

6.2 It is also contended that petition is filed at the

belated stage and no benefit can be granted to the

present petitioner. She has referred to the Government

Resolution dated 06.04.2000, and has submitted that as

per this G.R., the petitioners are also not entitled to get

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any benefit of any amount, more particularly, in the

order passed by the Educational Tribunal, the

Government is not held responsible for any payment and

the school is granted to pay the amount of salary. It is

also submitted that now, even though the school is also

closed down in the year 1992 and in view of the order

passed by the Tribunal, the school as well as Trust has

to pay the amount of salary to the petitioner as directed

by the Division Bench of this Court and accordingly, the

same has been paid. Therefore, there is no question to

grant any continuous service as there is no direction to

this effect, which has been given more moreover the

school is closed down in the year 1992 and no grant has

been received from the Government in any nature and, therefore, there is no question to grant any continuity of

service and giving retirement benefits to the present

petitioners and, therefore, she has prayed to dismiss the

present petition.

7. Mr. H.S. Munshaw, learned advocate for the

respondent Nos.2 and 7 has also supported the

contentions raised by learned advocates for the

respondents.

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8.1 I have considered the rival submissions made at the

bar by the respective parties. I have also considered the

fact that though classes of standards six and seven of

respondent school are closed down as school had sought

permission in the year 1990 and by way of getting

permission in the year 1991, the classes are closed down

from the year 1992 and the services of all the

petitioners, who were working as teachers had been

terminated. Thereafter, the petitioners have approached

the Gujarat Primary Education Tribunal, whereby the

Tribunal has passed the order merely on the basis that

there is controversy of Rule 40(B) of the Bombay

Primary Education Rules, 1949, and that is on the

technical ground as the Trust has not complied with that requirement and, therefore, the Tribunal has also found

that the State Authority will not be liable for any

payment but school will pay salary to the petitioners,

who were before the Tribunal. Thereafter, in several

rounds of litigation and in the contempt proceeding, the

entire amount of salary was paid to the respective

petitioners by the respondent Nos.5 and 6, but the fact

remains that the school was closed down in the year

1992, there was no specific direction and on the country,

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the Tribunal has found that State Authority is not

responsible for any payment and the petitioners have not

challenged that finding before any authority and,

therefore, liability to pay the amount by State is ceased

itself and the school has already paid the salary though

the petitioners have not worked after the year 1992 till

the payment of the salaries pursuant to the contempt

proceeding. Therefore, it cannot be said that the

respondent Nos.5 and 6 have not complied with the

order passed by the tribunal in stricto senso and with

that compliance, no further direction can be given at

such a belated stage after so many years to consider the

service of the petitioner/s as continuous service more

particularly petitioners have not actually worked after the year 1992 in the school even then they got salary in

view of the direction given by the Tribunal. Considering

the factual aspect of this matter, if any further direction

will be given by this Court as prayed in the present

petition, it will amount to giving premium treatment to

the such persons, who have received salary without

working. As such, the principle of no work no pay is

required to be followed but merely because there is some

technical breach in view of the provisions of Rule 40(B)

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of the Bombay Primary Education Rules, 1949 and when

the Tribunal has directed to pay the same, it cannot be

said that the case of the petitioners should be considered

as continuous service from the date of their appointment.

8.2 It is also required to be noted that school has paid

the amount from the funds of the Trust towards salary,

and it transpires that no service book has been prepared

and it also transpires that there is no material to show

that any account to pay the contribution towards the

pensionary benefit is existing qua the case of the

respective petitions in the respective petitioners. It is

also required to be noted that the petitioners have

availed the benefit of the order passed by the Tribunal

and have received the salary even without working after the year 1992 and respondent Trust has paid the same.

It is also relevant to note that at the time of passing of

the order, the Tribunal has specifically observed that the

state authority will not be responsible for any payment.

8.3 In view of this background, and considering the fact

that school is already closed in the year 1992 and school

has paid substantial amount towards salary to the

petitioners in respective petitions, granting any further

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relief will amount to unjust enrichment to the present

petitioners and, therefore, I am of the view that prayers

made in the present petition lack to stand, more

particularly, when the school was closed down in the

year 1992 and being grant-in-aid school and not receiving

any financial assistance from the Government, hence, no

direction can be granted as prayed in the present

petition against the respondent authority.

8.4 At this stage, it would be relevant to refer the

provisions of Rule 25 of the Gujarat Civil Services

(Pension) Rules, 2002, which reads as under:

"25. Qualifying Service: Subject to the provisions of these rules, qualifying service of a Government employee, means and includes -

(i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include-