Patel Kalpeshkumar Bhikhabhai vs State Of Gujarat

1. In both these petitions it is the case of the petitioners that the petitioners are selected and appointed and holding the posts of Ashramshala teachers. It is their case that the Government has passed a resolution dated 23.08.1973. Reading the preamble of the resolution would indicate that so as to provide security of services to such teachers the petitioners, the Government decided that such teachers employed in the Ashramshala run by the voluntary agencies who fulfill the prescribed qualifications and experience for primary teachers of the District Education Committee under the Panchayat and who were within the age prescribed for primary teachers on the day of their recruitment in the service of Ashramshalas, should be allowed to have their lien in the services of the respective District Education Committees under the Panchayats.

2. The prayer of the petitioners is that their case be Page 1 of 6 Downloaded on : Fri Jan 10 00:05:10 IST 2020 C/SCA/231/2020 ORDER considered and it is in this context that the prayer of the petitioners read as under:

"(B) Your Lordships may be pleased to issue an appropriate writ, order or direction that to consider the case of the petitioners for absorption in District Education Committee, Banaskantha and be allowed to have their LIEN in view of Government Resolution dated 23rd August 1973 as well as in view of oral judgment passed in SCA No.15391 of 2011 and other similar type of matters and thereafter in pursuance to that the respondent No.1 has passed an appropriate orders as per the Government Resolution dated 23rd August 1973 accordingly, forthwith in the interest of justice;"

3. Mr.Vasant Barot learned advocate for the petitioners has drawn my attention to a decision of this Court rendered in Special Civil Application No.15391 of 2011 dated 31.08.2017 where the petitioners had approached this Court claiming the benefit of Government Resolution dated 23.08.1973. Considering the spirit of the resolution, this Court on the facts found that the petitioners therein ought to be granted the benefit of the resolution dated 23.08.1973 and the decision of the Government by which the petitioners therein were deprived of the benefit of lien was rejected, was set aside. The Court held as under:

"(8) The leading judgement on the related issue is in the case of Solonki Bharatkumar Khushalbhai Vs. District Primary Education Officer, reported in 2002 (2) G.C.D. 1062, wherein this Court has elaborately dealt with the entire scheme of lien of primary teachers working in the Ashram Shalas. As reflected in the judgement, the qualification of such teachers was S.S.C and P.T.C which the petitioner was possessing at the relevant time. She was sent to the training of P.T.C pursuant to the order of the Commissioner for Tribal Development dated 28.10.1997 and the Letter dated 06.11.1997 as promulgated in the Government Resolution dated Page 2 of 6 Downloaded on : Fri Jan 10 00:05:10 IST 2020 C/SCA/231/2020 ORDER 03.07.1987, and she passed the same on 29.10.1999. At this stage it deserves to be noted that though the petitioner was appointed in the year 1990 she was sent to training in the year 1997. It is also an undisputed fact that the petitioner was also selected by the District Education Committee, Vadodara and was issued appointment order on 01.01.2002. In the aforesaid judgement, this Court while interpreting the Government Resolution dated 23.08.1973 has specifically held thus:

"By virtue of the said Resolution, even if a teacher is selected for appointment by the District Education Committee, he will not be allowed to join the schools of the District Education Committee unless he has put in at least five years' service in the Ashram Schools. It is, therefore, clear that what is required to be seen is the selection of such teacher. The said G.R. Nowhere provides that such benefit can be given on the basis of posting orders or actual appointments and it deals with only selection and nothing more.

"It is not in dispute that the petitioner was selected and, may be, at the relevant time, he was kept in the waiting list, but what is required to be seen is selection and not appointment. Therefore, even if a teacher is appointed by a Committee, and he is serving in the Ashram School, he may not be able to get the appointment in the School of the District Education Committee till he completes the five years' service, but still, he can be said to have been selected and such teacher is entitled to the benefit of the G.R. Of 1973. Under these circumstances, there was no reason to deny the benefit of the G.R. Of 1973 to the petitioner simply on the ground that even though he was selected, actual posting order was not given and, therefore, since he was not appointed, he was not entitled to the said benefit. Reading the G.R., no other view is possible and it is clear that on the basis of his selection, such teacher is entitled to get the benefit of lien."

C/SCA/231/2020 ORDER (9) The second judgement dated 27.02.2003 on the issue is in the case of Patel Nayanaben Revabhai Vs. State of Gujarat passed in Special Civil Application No.4603 of 2003. After considering the judgement rendered in the case of Solanki Bharatkumar Kushalbhai (supra), it was held thus:

"As observed in the earlier decision dated 01.02.2003 in Special Civil Application No. 5378/2001, the view taken by this Court (Coram: P.B.Majmudar, J.) interpreting the resolution dated 08.12.1999 is that those who were in the employment at the time when the resolution came to be passed should be extended the benefits of lien and they should have been eligible for such purpose."

(10)A conspectus of the foregoing judgements leaves no scintilla of doubt that the case of the petitioner is covered by the views rendered therein.

The petitioner had completed five years service in the Ashram Shala prior to 08.12.1999 I.e. the date on which the Resolution cancelling the scheme of grant of lien was introduced. She was also holding the requisite qualification I.e. S.S.C and P.T.C before she was selected by the District Education Committee and immediately thereafter she was issued appointment order dated 01.01.2002. Her case was also recommended by the school management. Ashram Shala Officer, Rajpipla, also recommended for the petitioner's lien vide letter dated 11.05.2007 to the District Primary Education Officer. The District Primary Education Officer also forwarded the proposal with his recommendation to the Director of Primary Education, State Government, vide letter dated 13.06.2007. The aforesaid authorities while recommending her case has never stated that the petitioner did not possess the requisite qualification of Primary Teacher. On the contrary, the fact borne out of the record suggests that she was sent for the training in the year 1997, though she was working since 1990. In her representation dated 14.02.2011 she has stated that she had repeatedly requested the authorities to send her for training but she was not sent.

C/SCA/231/2020 ORDER Appreciating the facts in hand and the judgements on the issue, it cannot be said that the petitioner did not possess the requisite qualification so that her legitimate demand of grant of lien can be scuttled. She cannot be faulted of not possessing the qualification as on 08.12.1999 since she was not sent to the training though requested by her time and again. Hence, the contention raised by the learned Assistant Government Pleader Mr.Oza deserves rejection.

(11)The impugned order dated 28.12.2010 refers to the judgement dated 12.07.2001 in Special Civil Application No.2506 of 2001 I.e. in the case of Solanki Bharatkumar Kushalbhai (supra). While rejecting the case of the petitioner for lien, it is stated that in the said judgment this Court has held that those Ahsram Shala Teachers who fulfilled the conditions of lien as per the Government Resolution dated 23.08.1973 prior to Government Resolution dated 08.12.1999 are to be conferred the benefit of lien but those who have gained eligibility after 08.12.1999 and selected after 08.12.1999 by the District Education Committee are disentitled to the same. A close scrutiny of the aforesaid judgement does not reveal any such findings or reasoning as canvassed by the respondent authority in the impugned orders. The said judgements also clarify that the lien is to be granted to those teachers also who are not allowed to join the schools and what is required to be seen is the selection of teachers by the District Education Committee. Hence, the impugned orders cannot be sustained and deserve quashing.

(12)So far the other contention raised by the learned Assistant Government Pleader Mr.Oza, that the petitioner had not completed five years in the Ashram Shala prior to 1999 after possessing the requisite qualification is concerned, the same does not have any substance. Learned AGP Mr.Oza was unable to justify the same either from the aforesaid judgements or from the Government Resolutions. Neither the jugements nor the Government Page 5 of 6 Downloaded on : Fri Jan 10 00:05:10 IST 2020 C/SCA/231/2020 ORDER Resolutions on record of the petition suggest the view expressed by the learned AGP, hence, the same is turned down.

(13)For the foregoing opinion and observations, the impugned orders dated 28.12.2010 and 13.07.2011 are hereby quashed and set aside. The respondents are directed to confer the benefit of lien to the petitioner in the District Education Committee, Narmada, with all consequential benefits and pass appropriate orders to that effect within a period of three months from the receipt of the present judgement. Petition is allowed. Rule made absolute."

4. Mr.Utkarsh Sharma learned AGP contends that at present, no decision either in favour of the petitioners or against them has been taken and it will be in the fitness of things if the petitioners are remitted to the competent authority to take a decision to consider the case of the petitioners to grant the benefit of Government Resolution dated 23.08.1973.

5. Accordingly, the respondents are directed to take into consideration the spirit of the Government Resolution dated 23.08.1973 in context of the judgment of this Court in case of similarly situated teachers in Special Civil Application No.15391 of 2011 and pass an appropriate order in accordance with law within a period of eight weeks from the date of receipt of copy of this order.

6. With the aforesaid observations, petitions are disposed of. Direct service is permitted.

(BIREN VAISHNAV, J) ANKIT SHAH Page 6 of 6 Downloaded on : Fri Jan 10 00:05:10 IST 2020