Division Bench allowed Letters Patent Appeals filed by State of Gujarat challenging a single judge order directing payment of salaries under Direct Payment Scheme to teachers absorbed from non-granted to granted classes in a school.
Letters Patent Appeals dismissed and impugned order dated 16th July 2015 confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/LPA/650/2016 JUDGMENT DATED: 28/06/2021 STATE OF GUJARAT & 2 other(s) Versus MINAXIBEN BHULABHAI PATEL & 2 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
NO
LETTERS PATENT APPEAL No. 650 of 2016
LETTERS PATENT APPEAL No. 647 of 2016
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APPEARANCE IN LETTERS PATENT APPEAL NO. 650 OF 2016 MR KRUTIK PARIKH, AGP for the Appellant(s) No. 1,2,3 MR UM SHASTRI(830) for the Respondent(s) No. 2 MS MAMTA R VYAS(994) for the Respondent(s) No. 1 RULE SERVED(64) for the Respondent(s) No. 3
APPEARANCE IN LETTERS PATENT APPEAL NO. 647 OF 2016 MR KRUTIK PARIKH, AGP for the Appellant(s) No. 1,2,3 MR UM SHASTRI(830) for the Respondent(s) No. 2 MS MAMTA R VYAS(994) for the Respondent(s) No. 1 RULE SERVED(64) for the Respondent(s) No. 3 ==========================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MR. JUSTICE B.N. KARIA
Date : 28/06/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE B.N. KARIA)
both the Letters Patent Appeals and they are arising from common Judgment and Order passed by learned Single Judge in Special Civil Application No. 7806 of 2014 and Special Civil Application No. 7807 of 2014 dated 16th July 2015 with the consent of Learned Counsels for the parties, these both the Letters Patent Appeal are decided by passing common Judgment.
namely Minaxiben Bhulabhai Patel , who is the Respondent No.1 in Letters Patent Appeal No. 650 of 2016 , was appointed as Assistant Teacher on 4th March 1985 and Petitioner of Special Civil
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Application No. 7806 of 2014 namely Gitaben Manilal Patel , who is the Respondent No.1 in Letters Patent Appeal No. 647 of 2016 , was appointed on 4th October 1990 as Assistant Teacher in Lunawada Kelvani Mandal Sanchalit S. K. High School (Primary Section), Lunawada, District: Panchmahal (Respondent No.5) in non-granted classes in Primary Section as per the Schedule-F of the Bombay Primary Education Regulations and both of them were possessing qualifications of H.S.C., PTC, which were required as per the Rule as trained qualified. The Respondent No.5, who was also running Standard V to VII wherein Two classes were given recognition with grant facility. Thereafter, on 5th December 1985, the District Education Officer approved an appointment of the original Petitioners. Pursuant to the letter of original Respondent No.2 dated 12th February 1998 due to retirement of the employees in the granted School, whereas the original Petitioners were serving employees from non granted schools could be absorbed in granted classes on the seniority basis and their salaries may be made under the Direct Payment Scheme. On retirement of two Teachers from the granted classes, original Respondent No.5 -School sent a proposal to the District Education Officer, herein Appellant No.3, for absorption of both the Petitioners in the granted School considering their qualifications. The District Education Officer, who is the Respondent
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no.2 in the present Appeals, passed an order of absorbing both the Petitioners into granted School and necessary procedure for the same was completed by the School Authorities. Pursuant to the aforesaid Order dated 22th July 2004, the District Education Officer, Panchmahals approved the appointment of the Petitioners for the purpose of grant on 14th October 2004. That, however the case of the Petitioners was considered as per the Rules, one Chandrikaben Patel objected the same though she was not qualified for the Primary School as she was possessing the qualifications of B.A., B.Ed., and pursuant to the said complaint, the District Primary Education Officer straightway cancelled the earlier order without hearing the Petitioners. Thereafter, the Petitioners approached the Gujarat Primary Education Tribunal, and challenged the order dated 5th December 2005. Learned Tribunal was pleased to quash and set aside the order passed by the District Primary Education Officer dated 5th December 2005. However, the Tribunal allowed the prayer of the present Petitioners vide order dated 12th December 2006 for considerable period, none of the Petitioners were paid salary under the Direct Payment Scheme, and therefore, they have filed Special Civil Application No. 25427 of 2007 as well as Special Civil Application No. 25428 of 2007 respectively before this Court, which was allowed and the concerned Authorities were directed to decide
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the representations dated 9th June 2007 made by the Petitioners and passed reasoned order as directed by the Tribunal within one month from the date of receipt of the order. Inspite of the aforesaid order, District Education Officer, vide order dated 03.04.2008, confirmed the order dated 05.12.2005 . As salary was not paid to the Petitioners under the Direct Payment Scheme, both the Petitioners, on 25th November 2008, approached this Court by filling Misc. Civil Application No. 50 of 2008 in Special Civil Application No. 25427 of 2007 and separate Misc. Civil Application in Special Civil Application No. 25428 of 2007 before this Court wherein Notices were issued, and thereafter, government was pleased to pay the salary of the Petitioners for the period from 22nd July 2004 to 3rd April 2008. Both the Petitioners, thereafter, challenged the order dated 3rd April 2008 of the District Primary Education Officer by filling Appeal before the Director of Primary Education on 15.12.2008 , and thereafter, more 5 years was passed but the Appeal preferred by the Petitioners were not decided, and therefore, both the Petitioners, again, filed separate Petitions on 24th September 2013 ie. Special Civil Application Nos. 12970 of 2013 and 12971 of 2013 before this Court, which were allowed by directing the original Respondents to decide the Appeals. Thereafter, hearing was fixed on 22nd October 2013 and on 24th October 2013. Both the Petitioners were remained present and
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requested to act as per the letter dated 12th February 1998. However, the Appeal preferred by the Petitioners were rejected by the Respondent No.2 vide order dated 11.12.2013, and therefore, they approached this Court by filling two different petitions ie., Special Civil Application Nos. 7807 of 2014 and 7806 of 2014. Learned Single Judge, after hearing the parties, was pleased to allow both the Petitions vide common order dated 16.07.2015 by quashing and setting aside the impugned order dated 11th December 2013 and 3rd April 2008 respectively. The Respondents were directed to pay the salary of the Petitioners under the Direct Payment Scheme and said and other benefits as may be admissible in a Granted School.
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of the said Teachers were paid by the original Respondent no.5 from its own part, and therefore, the Government is not liable to pay their salaries as the Petitioners were associated with non Grant-In-Aid Primary School. Learned AGP has further submitted that however letter dated 12th February 1998 was written with a request to accommodate the original Petitioners from Non Granted to Granted School, it was not in consonance with the Schedule-F of the Bombay Primary Education Rules and as per the Government Resolution dated 18th June 1949 passed by the Education Department, State of Gujarat. That Director of Primary Education Officer rightly rejected the said application vide Circle dated 5th February 2002 and 20th December 2005. It is further submitted by learned AGP for the Appellants that in spite of the clear rejection by the Office of the Director of Primary Education, the District Primary Education Officer passed an order dated 22nd July 2004 accommodating both the Petitioners from Non-Granted to Grant-in-Aid School, which was against the statutory provisions as per the Schedule-F as well as the Government Resolution of the Education Department, State of Gujarat as well as order passed by the Director of Primary Education Department rejecting the application of the original Petitioners. It is further submitted by learned AGP that both the Standard I to IV and V to VII are independent and isolated to each other as far as the
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Grant-in-Aid is concerned. It is further submitted that the Teachers teaching in Standard I to IV cannot be directly accommodated in the Grant-in-Aid part. That, there is no such provision for accommodation from Non Grant-in-Aid. That, in pursuant to the Order passed by this Court directing to pay the salaries to the Petitioners from 22nd July 2004 to 3rd April 2008 as per Grant-in-Aid class. Appellants are paid the salary for the aforesaid period. That, the representations of the Petitioners dated 15.12.2008 was rejected after giving an opportunity of hearing vide order dated 11th December 2013. That, the Petitioners are trying to take advantage of the order passed in Special Civil Application No. 3694 of 2011. That, the Appellants would suffer irreparable loss and injury if the impugned Judgment and Order is confirmed by this Court. It is further argued that the learned Single Judge has committed patent error in passing the impugned judgment and order against the evidence on record as well as provisions of Law and findings as well as settled legal provisions, and therefore, it was requested by learned AGP appearing for the Appellants in both these Appeals to allow these Appeals by setting aside the impugned Judgment and order dated 16.07.2015 passed by learned Single Judge of this Court in Special Civil Application No. 7806 of 2014 and Special Civil Application No. 7807 of 2014.
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Officer for absorbing the Petitioners in the Granted Classes considering their qualifications. It is further submitted that the District Primary Education Officer was pleased to pass an order dated 22nd July 2004 to absorb the Petitioners in the Granted Classes of the School. It is further submitted that the order dated 22nd July 2004 passed by the District Primary Education Officer was also approved by the District Education Officer, Panchmahals vide his letter dated 14.10.2004 and appointment of the Petitioners for the purpose of grant was approved. It is further submitted that thereafter, another Teacher namely Chandrikaben, who was not qualified and serving with the Respondent no.5-School objected the appointment of the Petitioners made by the District Primary Education Officer dated 22nd July 2004 and straightway, her objection was accepted by the District Primary Education Officer and he cancelled his earlier order. As salary was not paid under the Direct Payment Scheme to the Petitioners, they approached this Court by way of filing Special Civil Application No. 25427 of 2007 as well as Special Civil Application No. 25428 of 2007 respectively, which came to be allowed vide order dated 5th October 2007 . That, subsequent proceedings were also initiated by the original Petitioners for their salary and order dated 03.04.2008 of the District Primary Education Officer by preferring Appeal. That, initially, the appointment of the
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Petitioners were as per the Rules. That, two posts have fallen vacant on account of retirement of two teachers in Granted Classes, and thereafter, verifying the record, the Petitioners were absorbed in the Granted Classes. That, the learned Single Judge has rightly considered the prayer of the original Petitioners. That, in the similar facts of the case, in Special Civil Application No. 3694 of 2011, this Court was pleased to allow petition preferred by Hasumatiben B. Patel vide order dated 5th October 2011 . That, Letters Patent Appeal preferred by the State against that order dated 5th October 2011 was rejected by the Division Bench of this Court on the ground of nonjoining of necessary party. That, the order passed in Special Civil Application No. 3694 of 2011 has got finality and Petitioner of that petition was paid the consequential benefits as well as her salaries. Considering the aforesaid aspects also, Learned Counsel appearing for the Respondent No.1/Original Petitioners prayed to dismiss these both the Letters Patent Appeals and confirm the order dated 16th July 2015 passed by the learned Single Judge in Special Civil Application No. 7806 of 2014 and Special Civil Application No. 7807 of 2014. 6. Having heard Learned Assistant Government Pleader appearing for the Appellants and Learned Counsel appearing for the Respondent No.1-Original Petitioners and considering the relevant Government Resolutions as referred in the documents, it is
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undisputed facts that both the Original Petitioners were appointed in the School running by the Respondent no.5 on 4th March 1985 and 4th October 1990 respectively as Assistant Teachers. The Respondent No.5 was having Non Granted Classes of Standard 1 to 7 and Petitioners were appointed in Standard 1 to 4 according to ScheduleF of the Bombay Primary Education Regulations. Both the Petitioners were qualified having qualification HSC, PTC. It is also not in dispute that the Respondent No.5-School was also running Standard 5 to 7 wherein Two classes were given recognition with the grant facility. It appears that the letter dated 12th February 1998 was written by the District Primary Education Officer, verifying that in the event of retirement of the employees in the Granted School, employees from the Non Granted School could be absorbed in the Granted Classes on the basis of the seniority and their salary would be from Direct Payment Scheme. Thereafter, two teachers viz. Smt. B. S. Dhruv and Smt. K. L. Mahant reached at the age of superannuation, and therefore, Respondent No.5-School forwarded a proposal to the District Primary Education Officer for absorption of the Petitioners in the Granted Classes considering their qualifications. It appears that on receiving the proposal from the Respondent No.5School to absorb the original Petitioners in the Granted Classes, after considering their qualifications as two Teachers were retired on
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account of their superannuation, the District Primary Education Officer was pleased to pass an order of absorbing Petitioners in granted Classes of the School on 22nd July 2004 . It further appears from the record that the order passed by the District Primary Education Officer dated 22nd July 2004 was approved by the District Education Officer, Panchmahals vide order dated 14th October 2004, who is the Appellant No.3 in these both the Letters Patent Appeals. By the said letter, appointments of original Petitioners for the purpose of grant was approved and thereafter, on receiving objections from one Teacher who had no sufficient qualifications and not trained namely Chandrikaben Patel absorbing the Petitioners in granted School, the District Primary Education Officer straightaway accepted the objections of Chandrikaben Patel and cancelled the earlier order. Thereafter, the Petitioners challenged the order passed by the District Education Officer before the concerned Education Tribunal by filling Application Nos. 135 of 2005 and 136 of 2015 and learned Tribunal was pleased to quash and set aside the order of the District Education Officer dated 05.12.2005 vide order dated 12.12.2006. Thereafter also, Petitioners were not paying the salary under the Direct Payment Scheme, and therefore, they preferred Special Civil Application No. 25427 of 2007 as well as Special Civil Application No. 25428 of 2007 respectively before this Court, which
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was allowed vide order dated 05.10.2007 . This Court confirmed the order dated 12.12.2006 directing the Government to comply with the Order of the Tribunal and pay the salaries to the Petitioners. However this Order was not complied with, Petitioners again filed Misc. Civil Application No. 50 of 2008 in Special Civil Application No. 25427 of 2007 and separate Misc. Civil Application in Special Civil Application No. 25428 of 2007 before this Court, wherein notices were issued. Thereafter, Government paid salary for the period between 22nd July 2004 to 3rd April 2008 to the Petitioners. Thereafter, the Petitioners again challenged the order dated 3rd April 2008 of the District Primary Education Officer by filling the Appeals before the Director of Primary Education. As such Appeals were not heard for the period of Five years, Petitioners moved to this Court by filing Special Civil Application Nos. 12970 of 2013 and 12971 of 2013, wherein vide order dated 24th September 2013, learned Single Judge allowed the Petitions directing respondents to decide the Appeals and ultimately, Appeals preferred by the Petitioners were dismissed vide order dated 11th December 2013. It appears that Standard 1 to 7 were considered by the School as one unit and appointment of the Petitioners were made in accordance with the Rules.
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that if the appointment of Teacher is made in Non Granted School, then Teacher cannot be given an appointment in the granted School.
“8.4 The above noted facts remained undisputed, but under no circumstances, it can be said that pursuant to introduction of scheme of recruitment of Vidhya Sahayak in the recognized private primary schools by Government Resolution dated 18.06.1999, the vacancy of a teacher arising in the private primary school is required to be filled up by appointment of Vidhya Sahayak, and the right which is already accrued in favour of the petitioner since her joining in the service as a primary teacher in a granted private primary school for being included in direct payment scheme upon a vacancy which has arisen due to superannuation and/or resignation of the teacher, is in no manner affected. If the government Resolution is seen, it is applicable prospectively in the case of candidates, who will be appointed as Vidhya Sahayak and for such candidates relevant conditions contained in the above Government Resolution will be applicable. That clause 3 of the Government Resolution dated 18.06.1999 issued by the Department of Education, State of Gujarat, clearly stated that earlier resolutions dated 11.06.1998 and 31.08.1998 will remain unaffected. That, any change in the policy with regard to method of payment of salary of Vidhya Sahayak shall have no bearing on the service conditions of the petitioner, who was appointed as early as on 20.07.1990. That similarly situated persons and teachers appointed along with the petitioners are given benefits of direct payment scheme, upon retirement of
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teacher as per seniority, and therefore, reliance placed by the learned advocate for the private respondent as well as learned AGP on subsequent circular dated 05.02.2002 and 20.12.2005 about cancelling earlier instructions of Director, Primary Education dated 12.02.1998 cannot be applied and has no bearing on the case of petitioner. When the appointment of the petitioner was made, no objection certificate was given by the competent authority and upon undertaking valid selection procedure she was appointed and after rendering about 32 years of service in grant-in-aid primary school and one of the service conditions with regard to payment of salary etc was governed by Government Resolution dated 18.01.1991 and 09.04.1991 applicable to the teacher like the petitioner and further other similarly situated teachers who were appointed along with the petitioners were given benefit of direct payment scheme, and therefore, she cannot be discriminated for receiving salary under direct payment scheme and the said denial would result into depriving her of benefits of regular pay scale available to her from time to time. That any such denial would not only be unreasonable, but also violative of right of the petitioner for equality and equal treatment in the matter of public employment guaranteed under Articles 14 and 16 of the Constitution of India, and therefore, the order impugned passed by the Tribunal is contrary to law and deserves to be quashed and set aside. However, the contention about lack of jurisdiction under Section 40E of the Bombay Primary Education Act is not the vital aspect for rendering decision on merit as considered herein above and that the petitioner herself has invoked jurisdiction of the Tribunal.
The Petition is allowed and impugned order dated 11.01.2011 passed by the Gujarat Primary Education Tribunal is hereby quashed and set aside with a direction to the respondent authorities to include name of the petitioner in the direct payment scheme with effect from 01.11.2008 in place of Smt. Hemaben H. Naik, who
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STATE OF GUJARAT & 2 other(s) Versus MINAXIBEN BHULABHAI PATEL & 2 other(s)
retired from respondent-School on 31.10.2008 and to grant her other consequential and incidental benefits in accordance with law within a period of 4 months from the receipt of the writ of this order.”
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instruction of Director, Primary Education dated 12th February 1998 cannot be applied and has no bearing on the case of the Petitioners. Both the Petitioners are appointed in the year 1985 and 1990 respectively and they have completed their services of approximately 35 and 30 years respectively in Grand-in-Aid Primary School. When other Teachers who have also appointed in the School and given benefit of Direct Payment Scheme. Present Petitioners cannot be discriminated for receiving salary under the Direct Payment Scheme, as the said denial would result into depriving them from benefits of regular pay scale available to them from time to time. Both the Petitioners are entitled to receive the salary under the Direct Payment Scheme and other benefits as admissible in Grant-in-Aid School on retirement of Two Teachers from the same School namely Smt. B. S. Dhruv and Smt. K. L. Mahant. We are not in agreement with the arguments advanced by learned Assistant Government Pleader for the Appellants in both the Letters Patent Appeals to interfere in the order passed by the learned Single Judge in Special Civil Application No. 7806 of 2014 and Special Civil Application No. 7807 of 2014 dated 16th July 2015 as there is no merits in the submission to disturb the order.
Therefore, the present Letters Patent Appeal No. 650 of 2016 and Letters Patent Appeal No. 647 of 2016 are ordered to be
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dismissed. The impugned order dated 16th July 2015 passed by the learned Single Judge in Special Civil Application No. 7806 of 2014
and Special Civil Application No. 7807 of 2014 are confirmed.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
K. S. DARJI
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2 issues framed by the court
Whether teachers appointed in non-granted classes of a primary school are entitled to salary under Direct Payment Scheme upon absorption into granted classes.
Whether discriminatory denial of Direct Payment Scheme benefits violates Articles 14 and 16 of the Constitution of India.
Colour shows how this judgement treated each authority
Hasumatiben B. Patel v. State of Gujarat and OthersRelied on¶8
Hasumatiben B. Patel v. State of Gujarat and Others- Special Civil Application No. 3694 of 2011
State of Gujarat
Director of Primary Education
Minaxiben Bhulabhai Patel
Gitaben Manilal Patel
Vineet Kothari
B.N. Karia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
