Gujarat High Court

Dodia Ganpatsinh Naransinh vs State Of Gujarat on 8 September, 2025

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                           C/SCA/10442/2018                                        JUDGMENT DATED: 08/09/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 10442 of 2018


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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                                   Approved for Reporting                        Yes            No
                                                                                  ✓
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                                                DODIA GANPATSINH NARANSINH
                                                           Versus
                                                  STATE OF GUJARAT & ORS.
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                      Appearance:
                      MR KB PUJARA(680) for the Petitioner(s) No. 1
                      MR. HENIL SHAH, AGP for the Respondent(s) No. 1 and 3-STATE
                      MR RUTVIJ M BHATT(2697) for the Respondent(s) No. 2
                      NOTICE SERVED BY DS for the Respondent(s) No. 4,5
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 08/09/2025
                                                             ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocates for the

respective respondents waive service of notice of rule on

behalf of respective respondents. With the consent of the

parties, the matter is heard at length for final hearing.

2. The present petition under Article 226 of the

Constitution of India has been filed by the petitioner for

seeking the following reliefs:

"a) to admit this petition and to allow the same by issuing Notice for final disposal on returnable date;

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(b) to quash and set aside the impugned order dated 26-6- 2018 passed by the Respondent No.3 as per Annexure-H;

c) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the operation of the impugned order dated 26-6-2018 passed by the Respondent no.3 as per Annexure-H;

(d) to grant any other appropriate and just relief/;s"

3. Brief facts as stated in the memo of the petition are as

under:

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

petitioner was born on 28.01.1963. He is presently aged about

55 years and is going to retire on 31.01.2021. He belongs to

open category. Pursuant to the advertisement dated 8.12.1998,

the petitioner applied for the same and appeared at the open

interview held on 15.12.1998 by the duly constituted selection

committee which included the Ashramshala Officer also. On

being selected, the petitioner was issued appointment order

on 30-12-1998 w.e.f. 1.1.1999. The petitioner joined duties on

1.1.1999. The petitioner's appointment was approved by the

Commissioner, Tribal Development, Govt. of Gujarat, by order

dated 4.1.2000. It is further the case of the petitioner in this

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petition that the State Government had issued G.R. dated

23.08.1973 for granting lien at Ashramshala teachers who

had served for more than 5 years in the Ashramshalas, in

the District Education Committee and to give them all the

benefits available to the primary teachers of the District

Education Committee. Accordingly, the Director of Primary

Education passed order dated 2.1.2017 for granting lien

(absorption) to total 53 teachers of Ashramshalas, which

included the present petitioner at Sr. No. 29. Consequently,

the District Primary Education Officer, Valsad passed order

dated 16.05.2017 granting lien to the petitioner and passed

the order dated 14.07.2017, whereby the petitioner was posted

at Vadijangal Payripada Primary School, Valsad. The

petitioner has been placed in the General Provident Fund

Scheme. The petitioner is going to retire shortly on

31.01.2021.

3.2 It is further the case of the petitioner in this petition

that now, at this stage, the respondent No. 3 has passed

order dated 26.06.2018, whereby the petitioner's absorption

and posting at Vadijangal Payripada Primary School, Tal:

Kaprada, Dist: Valsad is sought to be cancelled and the

petitioner is sought to be sent back to Ashramshala. Hence,

the present petition has been preferred.

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4. Heard Mr. K.B. Pujara, learned advocate for the

petitioner, Mr. Rutvij M. Bhatt, learned advocate for the

respondent No.2 and Mr. Henil Shah, learned Assistant

Government Pleader for the respondent Nos.1 and 3- State.

Though served, none appears for respondent Nos.4 and 5.

5. On 09.07.2018, this Court has passed following order:

"Leave to add typed copy of page 28 to be inserted as page 28/A.

2. Heard learned advocate Mr. K. B. Pujara for the petitioner.

3. The District Primary Education Officer, District Valsad by communication dated 26.6.2018 directed reversion of services of the petitioner back to the Aashram Shala. The petitioner was absorbed, submitted learned advocate for the petitioner, in the District Panchayat Services after completion of requisite five years services. The ground put forth in the impugned order is that the appointment of the petitioner was not permissible since he had crossed the age of 33 years at the time of initial appointment. Juxtaposed with this, figures on page 28A is a letter of Director of Primary Education which points out that there is no upper age limit applicable for the post in question.

4. Learned Assistant Government Pleader Mr. Antani

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invited attention of the court to the communication dated 2.1.2017 seeking to oppose the prayer. Nothing could be prima facie noticed which would dissuade the court from issuing notice.

5. Therefore, Notice returnable on 6.8.2018.

6. By way of ad-interim relief, the impugned order dated 26.6.2018 is stayed till the next date.

7. Direct service is permitted."

6. Mr. K.B. Pujara, learned advocate for the petitioner has

fairly submitted that in view of the fact that the petitioner

has retired on 31.01.2021, all the benefits have been given to

the petitioner except the benefits of leave salary and second

higher pay-scale. He has also submitted that in view of the

contention raised in the present petition, the present petition

is required to be allowed to the limited extent by granting

the benefits which are not granted at the verge of

superannuation more particularly leave salary and second

higher pay-scale. Furthermore, he has submitted that even

considering the affidavit-in-reply filed by the respondent, the

present petition is required to be allowed. He has brought

the attention of this Court towards the affidavit-in-rejoinder

filed by the petitioner and has submitted that the G.R. dated

02.02.1999 issued by the General Administration Department

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has no relevance for the purpose of present petition. He has

further submitted that when the petitioner was appointed in

the Ashramshala on 01.01.1999, he was aged 35 years and

the appointment was to be given only if the age was upto 33

years. He has further submitted that in fact, this stand

taken by the Director of Primary Education in the said letter

is incorrect. He has submitted that in fact, there is no

upper-age limit provided for appointment in private primary

school. He has further submitted that the respondent No.2

has chosen to maintain complete silence on the aspect about

the fact that there is no upper-age limit in appointment in

Ashramshala. Therefore, he has prayed that the petition is

required to be allowed accordingly and necessary benefits are

required to be granted to the petitioner.

7. Per contra, Mr. Henil Shah, learned Assistant

Government Pleader for the respondent Nos.1 and 3- State

has drawn the attention of this Court towards the affidavit-

in-reply filed by the respondent No.3 and has submitted that

pursuant to the advertisement for the post of primary teacher

issued by respondent No.5, the petitioner has applied for the

said post and was duly appointed on 30.12.1998. The

petitioner was born on 28.01.1963. Hence, the petitioner was

appointed on the said post at the age of 35 years. He has

further submitted that the appointment of the petitioner was

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in open category. He has further submitted that the State

Government had issued G.R. dated 23.08.1973 for granting

lien to the Ashramshala teachers, who had served for more

than 5 years in the Ashramshalas in the District Edcucation

committee and to give them all the benefits available to the

primary teachers of the District Education Committee. He has

further submitted that pursuant to the various petitions filed

in the High Court for consideration of the case of other

similarly situated candidates for lien, a composite proposal

was prepared by the District Education Committee on the

basis of the letter issued by the respondent No.2 and was

forwarded for consideration for the said benefits to the

Director of Education. He has further submitted that in the

said proposal, the name of the petitioner was given at serial

No.29 in the common list prepared and the petitioner was

granted benefit of lien along with other candidates and was

placed in school run and managed by the District Education

committee. He has further submitted that it came to the

notice of the respondent No.2 while thorough verification of

the individual cases that when the initial appointment of the

petitioner was made with respondent No.5, the age of the

petitioner was 35 years. Hence, the respondent No.2 by

letter dated 06.05.2018, addressed to the present respondent

for clarification with regard to the proposal of the persons

eligible for lien, wherein it has been clarified that the

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maximum permissible limit for relaxation in case for

appointment as primary teacher in District Education

Committee is 05 years i.e. 33 years. Since the petitioner has

attained 35 years and since proper verification with regard to

permitting the benefit of lien is not done hence the petitioner

is required to be replaced at the original place and necessary

orders to that effect to be passed. He has further submitted

that on the basis of the letter of respondent No.2 and by

considering the resolution of the State Government dated

02.02.1999, wherein the benefit of extending the maximum

age is five years. He has further submitted that the initial

appointment of the petitioner at respondent No.5 though

approved was conditional order by the Commissioner, Tribal

Development, Government of Gujarat on 04.01.2000, wherein

condition No.2 clarifies that the said appointment shall be

subjected to audit. The present case while on verification has

come to the notice of the respondents that the benefits are

wrongly being conferred hence it is always open for the

department to verify before extending any benefit to the

petitioner. He has further submitted that since the benefit of

conferring the lien was granted in the year 2017 only and,

therefore, he has submitted that the present petition is

meritless and is required to be dismissed.

8. Mr. Rutvij M. Bhatt, learned advocate for the

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respondent No.2 has submitted that in view of the

Government Resolution, maximum age limit is 33 years and

petitioner has admittedly crossed 35 years of age at the time

of appointment and in view of the Government Resolution of

the year 1999, the action of the respondents is appropriate.

Furthermore, he has also supported the submission made by

learned AGP Mr. Henil Shah and has submitted that

accordingly, appropriate order may be passed by rejecting the

present petition.

9.1 I have considered the rival submissions made at the

bar. I have also perused the prayers in the present petition

and also the documents annexed with the petition, affidavit-

in-reply as well as affidavit-in-rejoinder. It transpires that

during the pendency of the present proceeding, the petitioner

has retired on 31.01.2021. This Court has passed the order

on 09.07.2018, whereby the document which is annexed at

Page 28A, which is letter of Director of Primary Education

which points out that there is no upper-age limit applicable

for the post in question.

9.2 On perusal of such document again, it clearly stipulates

that there is no upper-age limit for the recruitment of the

teaching/non-teaching staff in grant-in-aid primary schools.

Moreover, pursuant to the initial order passed by this Court,

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on perusal of the affidavit-in-reply, there is no specific denial

except relying on the circular of the year 1999.

9.3 It also transpires that G.R. dated 02.02.1999 issued by

the General Administrative Department which is relied upon

by the respondents are not applicable to the facts of the

present petition because the petitioner's appointment at the

relevant time was governed by Schedule-F. This fact is

brought to the notice of this Court by learned advocate for

the petitioner by referring to the affidavit-in-rejoinder in reply

in paragraph No.4 which reads as under:

"4. The contents of para-6 to 8 of the Affidavit-in-Reply are not true and correct and they are denied hereby. The respondent no.2 is called to place on record, with a copy to the petitioner, the letter of respondent no.2 dated 6-5-2018 referred to in para-6 of the Affidavit-in-Reply. If by mistake or otherwise the respondent no.2 is referring to the letter of respondent no.2 dtd. 6-6-2018 which is annexed as Annexure-R/1 of his Affidavit-in-Reply, then it is submitted that the said letter is written behind the back of the petitioner and without giving any opportunity of hearing to the petitioner and hence the impugned order based on such wrongful letter is liable to be quashed on the short ground of violation of the principles of natural justice, over and above on the ground of non-application of mind, in as much there was no upper-age limit for appointment of primary teachers in Ashramshalas which are private primary schools

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governed by Schedule-F of the Bombay Primary Education Rules, 1949 made under the Bombay Primary Education, Act, 1947. It is therefore wrongly stated in the letter of the Director of Primary Education dated 6-6-2018 that when the petitioner was appointed in the Ashramshala on 1-1-1999 he was aged-35 years and the appointment was to be given only if the age was upto 33 years. The fact that there is no upper-age limit provided for appointment in private primary school in Schedule-F is confirmed and corroborated even by the Director of Primary Education himself vide his letter dtd. 14-9-2005 addressed to the Deputy Director of Tribal Development, copy of which is already annexed by the petitioner at Annexure-I of the petition (page no. 28). However, the respondent no.2 has chosen to maintain complete silence about the same in his Affidavit-in-Reply.

So far as the G.R. dtd. 2-2-1999 issued by the General Administration Department, copy of which is at Annexure-R/ 2 of the Affidavit-in-Reply, is concerned it has no relevance for the purpose of the present petition because the petitioner's appointment at the relevant time was governed by the Schedule-F referred to hereinabove.

In para-8 of the Affidavit-in-Reply the respondent no.2 is referring to the order of approval of the petitioner's appointment issued by the Commissioner, Tribal Development dtd. 4-1-2000 and is contending that the said order was conditional as it was subject to audit. It is difficult to understand the said contention of the respondent no.2. It is pertinent that the said order dtd. 4-1-2000 does

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not refer to the issue of age because there is no provision for upper-age limit in Schedule-F. The whole controversy about age raised by the respondent no.3, relying on the letter of respondent no.2 dtd. 6-6-2018, is devoid of any merit and suffering from total non-application of mind. It is denied that the petitioner was age-barred at the time of his selection and appointment in Ashramshala by order dtd. 30- 12-1998."

9.4 Considering the totality of the facts and circumstances

of the case, the present petition is required to be allowed.

However, the petitioner has received most of the benefits on

reaching the superannuation, but as submitted by Mr. K.B.

Pujara, learned advocate for the petitioner that benefits of

leave salary and second higher pay-scale was not granted to

the petitioner. Therefore, let the respondent-authority may

consider this aspect about non-payment of such benefits which

is receivable by the petitioner and thereafter, the respondent-

authority shall do needful to pay the same, as expeditiously

as possible, preferably within a period of eight weeks from

the date of receipt of copy of this order. Accordingly, the