Gujarat High Court

Adarsh Primary School Thro Vice ... vs Raniben Kanaiyalal Jeswani on 27 June, 2025

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                             C/SCA/12217/2012                                  ORDER DATED: 27/06/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 12217 of 2012
                                                         With
                                      R/SPECIAL CIVIL APPLICATION NO. 3812 of 2013
                                                         With
                                      R/SPECIAL CIVIL APPLICATION NO. 3813 of 2013
                                                         With
                                      R/SPECIAL CIVIL APPLICATION NO. 3814 of 2013
                                                         With
                                      R/SPECIAL CIVIL APPLICATION NO. 3815 of 2013
                                                         With
                                      R/SPECIAL CIVIL APPLICATION NO. 3816 of 2013
                                                         With
                                      R/SPECIAL CIVIL APPLICATION NO. 3817 of 2013
                      ==========================================================
                               ADARSH PRIMARY SCHOOL THRO VICE PRESIDENT & ANR.
                                                     Versus
                                       RANIBEN KANAIYALAL JESWANI & ORS.
                      ==========================================================
                      Appearance:
                      MR YH MOTIRAMANI(3720) for the Petitioner(s) No. 1,2
                      MR. HENIL SHAHT, AGP for the Respondent(s) No. 10,8
                      HL PATEL ADVOCATES(2034) for the Respondent(s) No. 9
                      MR RAJESH P MANKAD(2637) for the Respondent(s) No. 1,2,3,4,5,6,7
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                         Date : 27/06/2025
                                                       COMMON ORAL ORDER

1. Since the prayers and issues involved in the present

petitions as well as almost the facts are 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.12217 of

2012 is considered as lead matter and all the matters

are heard together.

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2. The present lead petition i.e. Special Criminal

Application No.12217 of 2012 is filed for seeking the

following reliefs:

"(A) that this Honourable Court be pleased to issue a writ of mandamus and/or certiorari and/or a writ in the nature of mandamus and/or certiorari or any other appropriate writ order or direction to quash and set aside the judgment and order dated 9.05.2012 passed by the Learned Primary Education Tribunal in Application Nos.91/2006, 48/2007 and 55/2007 to 60/2007;

(B) that pending hearing and final disposal of this petition, the Honourable Court be pleased to stay the operation, implementation and execution of judgment and order dated 9.05.2012 passed by the Learned Primary Education Tribunal in Application Nos.91/2006, 48/2007 and 55/2007 to 60/2007;

(C) for costs;

(D) for such other and further reliefs as the circumstances of case may require."

3. Brief facts of as per the case of the lead petition

i.e. Special Criminal Application No.12217 of 2012 are as

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under:

3.1 The petitioner no.1 is a linguistic minority trust

and impart primary education through the petitioner no.2

school in Sindhi medium. The petitioner no.2 is a non-

granted school and had to meet with its expenses only

out of its limited income of fee from students. The

petitioner no.2 school is now closed. The respondent nos.1

to 7 were working as teachers with the petitioner no.2

school. It is further the case of the petitioners in this

petition that the respondent nos.1 to 7 preferred

Application Nos.91/2006, 48/2007, 55-60/2007 (for short

"the applications") before the Learned Primary Education

Tribunal and prayed inter alia for payment of salaries as per Fifth Pay Commission. The petitioners filed their

reply in the applications before the Learned Primary

Education Tribunal. The petitioner no.2 has discontinued

its functions in the year 2010 as it had no students left

in primary division of Sindhi medium. The respondent

nos.1 to 7 were relieved from their services in the year

2011. The respondent nos.1, 4, 5, 6 and 7 filed

Application Nos.26/11 to 30/11 challenging their removal

from service. The respondent no.2 also filed Application

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No.84/2007 challenging the decision of her removal from

service. The Learned Primary Education Tribunal vide

common judgment and order dated 2.08.2011 and

22.12.2011 was pleased to uphold the decision of removal

of teachers by the petitioners. It is further the case of

the petitioners in this petition that The Learned Primary

Education Tribunal has vide impugned common judgment

and order partly allowed the applications of the

respondent nos.1 to 7 to pay salaries to the respondent

nos.1 to 7 as per government rules and regulations

without considering the income and expenses of the

petitioner no.2 school. Hence this petition has been

preferred.

4. Heard Mr. Y.H. Motiramani, learned advocate for

the petitioners, Mr. Rajesh Mankad, learned advocate for

the respondent Nos.1 to 7, Mr. Maharshi Patel, learned

advocate appearing on behalf of H.L. Patel Advocates for

the respondent Nos.8 and 10, and Mr. Henil Shah,

learned AGP for the respondent No.9 - State in the

respective captioned petitions.

5.1 Mr. Y.H. Motiramani, learned advocate for the

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petitioners has submitted that the petitioners are

challenging the common judgment and order dated

09.05.2012 passed by the Primary Education Tribunal in

Application Nos.91 of 2006, 48 of 2007 and 55 of 2007

to 60 of 2007. He has submitted that the petitioner No.1

is a linguistic minority trust and imparts primary

education through the petitioner No.2 school in Sindhi

medium. The petitioner no.2 is a non-granted school and

had to meet with its expenses only out of its limited

income, of small fee received from students, but now

that is also not available as Sindhi medium school in

which the respondent Nos.1 to 7 were working is closed.

He has further submitted that now as the parents of

children have now shifted education of their children to Gujarati/English medium, the petitioner No.2 has lost the

strength of students. As a matter of fact, the petitioner

No.2 school sought permission from the office of D.E.O.,

Ahmedabad and requested for closure of divisions and

the petitioner No.2 school has already discontinued its

functions in Sindhi medium in the year 2010 as it has

no students left in primary division of Sindhi medium.

5.2 He has further submitted that during the pendency

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of applications before the Learned Tribunal, the

petitioner No.2 has already discontinued its operations

and the teachers employed by the petitioner No.2 school

were relieved from their services in the year 2011. He

has further submitted that in fact, the trustees of the

petitioner No.1 school and even principal of secondary

school have infused their personal funds in order to bear

the expenses of petitioner No.2 school. Therefore, in this

background, the Tribunal has not considered all these

aspects and has directed the petitioners to pay the

salary and other benefits to respondent Nos.1 to 8 as

per government rules and regulations vide impugned

judgment and order dated 09.05.2012. He has further

submitted that the said judgment is totally erroneous in law and on facts and the Tribunal has not considered

that the petitioner No.2 school had very minimal income

during the years 2006, 2007, 2008 and 2009.

5.3 He has further submitted that the Tribunal has

erred in not considering that there were very limited

students in the petitioner No.2 school and the petitioner

no.2 school could not meet with the expenses of teachers

with meager fees being received by it. Hence, the

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trustees of petitioner no.1 and principal of secondary

division had infused their personal funds for running the

primary school.

5.4 He has further submitted that the Tribunal ought

to have considered that the respondent Nos.1 to 7 had

accepted their salary without any objection as they knew

the financial position of the petitioner no.2 school. He

has further submitted that the Tribunal has erred in not

considering the judgment in the case of Mrs. Satimbhai

Sharma v/s. St. Paul S. Senior Secondary School reported

in AIR 2011 SC 2926, and erred in relying upon the

decisions in the case of (i) Benson Knock Semual vs.

State of Gujarat reported in 1984 (1) GLR 691 and (ii) Swaminarayan Education Trust vs. State of Gujarat

reported in 1993 (2) GLR 1713.

5.5 He has further submitted that the Tribunal has

erred in holding that the respondent Nos.1 to 7 possess

requisite qualification of P.T.C. He has further submitted

that the Tribunal has erred in holding that the

respondent Nos. 1 to 7 are entitled to salary as per

government rules and regulations from the date of their

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filing applications (i.e. 10.08.2007) till retirement. Lastly,

he has relied on Notification issued by Gujarat

Government dated 27.09.2006, whereby it transpires that

there is amendment in Rule 106(A)(4)(v) of the Bombay

Primary Education Rules, 1949 and has submitted that

the Tribunal has committed the error in giving the

finding without considering this aspect and, therefore, he

has prayed to allow the present petition by interfering

the impugned order passed by the Tribunal as the

petitioners are not in a position to pay any amount in

view of the above-stated submissions.

6.1 Per contra, Mr. Rajesh Mankad, learned advocate for the respondent Nos.1 to 7 has submitted that there is no error committed by the Tribunal as the Tribunal

has rightly referred every aspects of the matter and has

given definite finding by considering the materials

available on the record and also considering the

Notification issued by Gujarat Government dated

27.09.2006, more particularly, Rule 106(A)(4)(v) of the

Bombay Primary Education Rules, 1949, which reads as

under:

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"(v) The rates of tuition fees, the pay scales and allowances of the teaching staff of grant-in-aid recognised private primary school shall be such as may be approved by the Government from time to time."

Prior to the aforementioned notification of the Education Department, the following provisions were in place.

"(v) The rates of tution fees, the pay scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time."

6.2 He has further submitted that pursuant to that, the

Notification is issued and the Tribunal has not

committed any error in considering the same, more

particularly, he has relied on the judgments in the cases

of (i) Swaminarayan Navsarjan Vidyalaya vs. Bhavnaben Narharishankar Pathak reported in 2016 (0) AIJEL - HC

236861 (ii) Rajak Hasam Ghanchi vs. Anjumane Islam

Memon Moti Jamat Sanchalit Madresa reported in 2012

(0) AIJEL-HC 226735, and (iii) Shantiniketan Hindi

Primary School vs. Pal Hariram Ramavat reported in

2010 (0) AIJEL - SC 47958, and has submitted that no

error is committed by the Tribunal and considering the

fact that the petitioners are serving in the school, they

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should not be deprived of any benefits merely because

the petitioner No.2 is facing some financial difficulty and,

in view of this, he has prayed to dismiss the present

petition.

7. Mr. Maharshi Patel, learned advocate appearing on

behalf of H.L. Patel Advocates for the respondent Nos.8

and 10, and Mr. Henil Shah, learned AGP for the

respondent No.9 - State in the respective captioned

petitions have jointly submitted that appropriate order

may be passed considering the judgment of the Tribunal

and the provisions of law.

8.1 I have considered the rival submissions made at the bar. I have also considered that the fact that the

respondent Nos.1 to 7 are serving with petitioners as

teachers. After perusing the judgment of the Tribunal,

prima facie, I am of the view that there is no dispute that the respondent Nos.1 to 7 are serving with the

petitioners' school, and the Tribunal has considered

various aspects in the impugned order. The Tribunal has

rightly considered the Notification issued by Gujarat

Government dated 27.09.2006 that non-granted private

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schools are exempted from the payment of the salaries

as per Government Rules.

8.2.1 It is also fruitful to refer the Notification

dated 27.09.2006 issued by Gujarat Government, more

particularly, whereby Rule 106(A)(4)(v) is substituted in

the Bombay Primary Education Rules, 1949, which reads

as under:

"(v) The rates of tuition fees, the pay scales and allowances of the teaching staff of grant-in-aid recognised private primary school shall be such as may be approved by the Government from time to time."

Prior to the aforementioned notification of the Education Department, the following provisions were in place.

"(v) The rates of tution fees, the pay scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time."

8.2.2 Furthermore, by comparing the earlier Rule, it

transpires that there is intention of the Government to

exempt the private schools to pay the salary as per the

Government Rules. Moreover, the Tribunal has rightly

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referred to Schedule F of the said Rules, more particular

clause (9), which is as under:

"9. Scale of salaries:- Scales of pay and allowances payable to the teaching and non-teaching staff shall be such as may be approved by the State Government from time to time."

8.3 Furthermore, considering the judgments cited by Mr.

Y.H. Motiramani, learned advocate for the petitioners in

the case of Mrs. Satimbhai Sharma v/s. St. Paul S.

Senior Secondary School reported in AIR 2011 SC 2926,

whereby paragraphs 3 and 27 are relied on and in the

cases of (i) Benson Knock Semual vs. State of Gujarat

reported in 1984 (1) GLR 691, more particularly,

paragraph 9 is relied on and (ii) Swaminarayan Education Trust vs. State of Gujarat reported in 1993 (2)

GLR 1713. There is no dispute about the proposition of

law enunciated in these judgments, but these judgments

are not helpful to the petitioners in the facts of the

present case.

8.4.1 It is fruitful to refer the judgment cited by

learned advocate for the respondents of the Hon'ble Apex

Court in the case of Swaminarayan Navsarjan Vidyalaya

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(supra), more particularly, paragraphs 15 and 16 are

relevant, whereby in substance, there is observation of th entitlement of benefit of 5 pay of teachers of non-

granted private school, the said relevant paragraphs are

as under:

"15. So far as the merits of present petition is concerned, the petitioner has submitted that pursuant to resolution dated 27.9.2006, respondent No.1 is not entitled to benefit of 5th Pay Commission because the petitioner school is not grant-in-aid school. However, in such resolution dated 27.9.2006, nowhere it is clarified that the teachers serving in private schools are not entitled to the benefit of 5th Pay Commission. On the contrary, the resolution confirms that the rates of tuition fees, the pay-scales and allowances of the teaching staff of grant-in-aid recognized private primary school, shall be such as may be approved by the Government from time to time. Such condition has been substituted in Rule 106(A) in Sub-Rule (4) for Clause (v) of Bombay Primary Education Rules, 1949 by notification of the same date i.e. 27.9.2006. There is no other clarity on record. Whereas, the resolution of the Government dated 22.7.1980 confirms that the teachers like the respondent No.1, shall be given the same salary that has been approved for equally situated teachers as per such resolution, copy of which is produced on record at Annexure- 1, page 45. Therefore, perusal of the impugned judgment confirms that the Tribunal has taken care of such factual

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details and applicable Rules while deciding such applications No.65 and 66 of 2002 and confirms that the respondent is entitled to the benefit of 5th Pay Commission, practically, there is nothing on record so as to quash and set-aside such order. Whereas, the issues raised by the petitioner has also no supporting evidence and even otherwise it has no force when it is only prayed that the respondent has got service illegally because of her uncle and that she is not entitled to the benefit of 5th Pay Commission because petitioner's school is not grant-in-aid school and she is not P.T.C. pass. However, the resolution dated 22.7.1980 confirms that qualification of the petitioner is proper for such job and therefore, it cannot be said that her appointment was illegal. The petitioner has also raised several minor issues regarding disclosure of the word 'High School' etc., but it has no bearing on the principal dispute between the parties.

16. It is undisputed fact that respondent has served for 32 years and that she is B.A., B.Ed. and therefore, when there is no issue regarding her initial appointment, and when there is no privilege or benefit extended by any rule to the private schools, which are not getting grant-in-aid to pay different salary than the equally situated teachers in other schools, I do not find any substance in the petition and therefore, the petition needs to be dismissed."

8.4.2 It is also fruitful to refer the judgment cited

by learned advocate for the respondents in the case of

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Rajak Hasam Ghanchi (supra), more particularly,

paragraphs 5 and 6 are relevant, whereby in substance,

there is observation of entitlement of teachers of minority

institution to non-granted salary as per Rules and the th benefit of 5 pay of teachers of non-granted private

schools, the said relevant paragraphs are as under:

"5. I am of the view that this issue is no longer res integra after the pronouncement of the judgment by the Supreme Court in the case of Shantiniketan Hindi Primary School V/s. Pal Hariram Ramavtar and others, reported in AIR 2010 SC 656. The facts in the case of Shantiniketan (supra) were that Shantiniketan Educational Trust was a minority institution running two primary unaided schools, one in Gujarati medium and the other in Hindi medium in the State of Gujarat. Respondent nos.1 to 4 were working as teachers in those schools. Their services were terminated on 5th July 1996 on the ground that they had absented from duties. Against the order of termination of service they filed application before the Gujarat Primary Education Tribunal. While they were in service they moved applications before the said Tribunal claiming parity of pay and allowances as per Government rules applicable to the Untrained Teachers. All the applications were heard together by the Tribunal and a common order was passed quashing the termination orders and directing reinstatement with full salary and other benefits from the date of termination till the date of the order with a

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further direction to pay the salary and other benefits applicable to Untrained Teachers as per Government rules, from the dates of their appointments. The Management filed a writ petition being Special Civil application No.6918/2001 which was dismissed by the learned Single Judge of this High Court on 19th February 2002 which was affirmed by the Division Bench vide order dated 30 th February 2002. Aggrieved by the same, Appeal came to be preferred before the Supreme Court by the Management.

6. Before the Supreme Court, the main contention raised by the Management was that the respondents were unqualified to hold the post and also that they were not trained teachers. Supreme Court noticed that the reason for termination of service was not that they were unqualified or untrained teachers, but that they had absented from duties. Dismissing the Appeal filed by the Management and holding that the respondents-teachers were entitled to get pay and allowances which are applicable to untrained teachers as per Government rules, Supreme Court held as under :

"5. The appellant is a recognized unaided Primary School governed by the provisions of the Bombay Primary Education Act 1947. The 1st Respondent, herein a graduate was appointed as Assistant Primary Teacher in the Hindi Medium of the School on 5.6.1987. 2nd respondent, who was possessing the qualification of SSC was appointed in the school as a Teacher for the course of Handicraft and Book binding on 8.7.1985. The 3rd respondent was appointed as Assistant Teacher in the Gujarati Medium of the school on

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22.6.1986 and the 4th respondent was appointed on Assistant Primary Teacher in the Gujarati medium on 5.6.1987. They were discharging their duties without any complaint from any quarters. Noticing that they were not getting the pay and allowances as per Government Rules applicable to untrained teachers, they approached the Tribunal and filed application nos.3 of 1993 and 30 of 1993 for a direction to the Management to pay the salary and allowances as per Government Rules. Apparently, irked by such demand, their services were terminated by the Management on the ground that they had absented from duty without informing the Management which amounted to gross indiscipline. The Tribunal after an elaborate discussion of the various contentions raised by the parties and also examining the provision of Bombay Primary Educational Act, 1947 and the Gujarat Amendment Rules 1978 came to the conclusion that the order of termination was bad since the Management had not followed by proper procedure in terminating their services. Further, it was also found that the respondents were entitled to get the pay and allowances as per Government Rules applicable to untrained teachers.

6. The main contention raised by the Management before us was respondents were unqualified to hold the post and lso that they were not trained teachers. We notice that the reason for termination of services was not that they were unqualified or untrained teachers but that they had absented from duties. Assuming that they had absented from duties even then admittedly procedure laid down under Clause 13 and 18 of Schedule `F' of the Bombay Primary

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Education Rules, 1949 had to be followed before terminating their services. The Tribunal and the High Court had therefore rightly held that the orders of termination of services of the respondents was bad in law.

7. Rule 106A of the Bombay Primary Education Rules deals with the application for recognition. Sub-rule 2 of Rule 106-A states that every application under sub-rule 1 shall be sent to the authorized officer by registered post with acknowledgment due together with an undertaking in writing that the conditions of employment of teachers in the private primary schools shall be those as specified in Schedule 'F' appended to these rules. Schedule 'F' deals with the model conditions of employment of teachers in the private schools in the State of Gujarat which forms part of Rule 106A of the Rules. Clause (v) of sub-rule 4 states that no primary school shall be recognized or continued to be recognized unless the rates of tuition fee, pay-scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time. Following the above mentioned provisions, the Tribunal, on facts found that the respondents were working as teachers in the School for over ten years but they were paid only a consolidated monthly pay of Rs.724 per month, which was found to be not in accordance with rules. Tribunal in our view has correctly come to the conclusion that the respondents-teachers are entitled to get pay and allowances which are applicable to untrained teachers as per Government Rules.

8. Under the above circumstances, we find no reason to interfere with the order passed by the Tribunal which was

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confirmed by the High Court. Further, we notice that when this court had granted stay of the judgment vide orders dated 13.1.2006, recorded the statement of counsel for the management that it had disbursed Rs. 2 lakhs towards arrears of salary. Needless to say that amount would be adjusted towards salary due to the respondents. Considering the financial difficulties pointed out by the counsel appearing or the Management and the fact that the School had to be closed down for the years 1995-96 and 1996- 97, and considering the fact that there were unauthorized absences, we are of the view that the respondents 1-4 are entitled to get only 50% of the salary and other benefits applicable to the untrained teachers as per Government Rules from the date of appointment till the date of reinstatement after adjusting the above-mentioned amount. Ordered accordingly." Thus, in view of the pronouncement of the Supreme Court judgment in the case of Shantiniketan (supra) the position of law is abundantly clear and the petitioners in the present case are entitled to the reliefs which have been prayed for in this petition."

8.4.3 It is also fruitful to refer the judgment cited

by learned advocate for the respondents of the Hon'ble

Apex Court in the case of Shantiniketan Hindi Primary

School (supra), more particularly, paragraphs 6, 7 and 8

are relevant, whereby in substance, there is observation

of entitlement of teachers of minority institution in non-

granted schools to get full salary as per Rules benefit of

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th 5 pay of teachers of non-granted private school, the

said relevant paragraphs are as under:

"6. The main contention raised by the Management before us was respondents were unqualified to hold the post and also that they were not trained teachers. We notice that the reason for termination of services was not that they were unqualified or untrained teachers but that they had absented from duties. Assuming that they had absented from duties even then admittedly procedure laid down under Clause 13 and 18 of Schedule `F' of the Bombay Primary Education Rules, 1949 had to be followed before terminating their services. The Tribunal and the High Court had therefore rightly held that the orders of termination of services of the respondents was bad in law.

7. Rule 106A of the Bombay Primary Education Rules deals with the application for recognition. Sub-rule 2 of Rule 106-A states that every application under sub-rule 1 shall be sent to the authorized officer by registered post with acknowledgment due together with an undertaking in writing that the conditions of employment of teachers in the private primary schools shall be those as specified in Schedule 'F' appended to these rules. Schedule 'F' deals with the model conditions of employment of teachers in the private schools in the State of Gujarat which forms part of Rule 106A of the Rules. Clause (v) of sub-rule 4 states that no primary school shall be recognized or continued to be recognized unless the rates of tuition fee, pay-scales and allowances of the teaching staff shall be such as may

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be approved by the Government from time to time. Following the above mentioned provisions, the Tribunal, on facts found that the respondents were working as teachers in the School for over ten years but they were paid only a consolidated monthly pay of Rs.724 per month, which was found to be not in accordance with rules. Tribunal in our view has correctly come to the conclusion that the respondents-teachers are entitled to get pay and allowances which are applicable to untrained teachers as per Government Rules.

8. Under the above circumstances, we find no reason to interfere with the order passed by the Tribunal which was confirmed by the High Court. Further, we notice that when this court had granted stay of the judgment vide orders dated 13.1.2006, recorded the statement of counsel for the management that it had disbursed Rs. 2 lakhs towards arrears of salary. Needless to say that amount would be adjusted towards salary due to the respondents. Considering the financial difficulties pointed out by the counsel appearing for the Management and the fact that the School had to be closed down for the years 1995-96 and 1996-97, and considering the fact that there were unauthorized absences, we are of the view that the respondents 1-4 are entitled to get only 50% of the salary and other benefits applicable to the untrained teachers as per Government Rules from the date of appointment till the date of reinstatement after adjusting the above-mentioned amount. Ordered accordingly."

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8.5 In view of the abovementioned legal position and

considering the above-all, I am of the opinion that

contentions raised by learned advocate for the petitioners

are found misconceived as petitioners cannot shrug off

the liability to pay the amount of salary as per the

Government Rules. The Tribunal has not committed any

error in directing the petitioners as per impugned

judgment. I found no substance in any of the present

petitions as all the petitions are based on similar