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2009 DIGILAW 690 (GUJ)

Ahmedabad Education Society v. State of Gujarat

2009-10-29

JAYANT PATEL

body2009
JUDGMENT : Jayant Patel, J. As all the petitions are inter-connected and arising from the common order, they are being considered by this common judgment. 2. The short facts of the case appears to be that the petitioner is an Institute running Primary School known as A.G. Primary School (Gujarati Medium). The concerned respondent teachers were engaged as teachers by the petitioner in the Primary School (Gujarati Medium). As per the petitioner, since the strength of the students were reduced, they were required to close down certain classes and for which the permission was applied to the Director of Primary Education for closure of classes. The Director of Primary Education, after considering the proposal and after giving opportunity of hearing to the teachers, passed the order permitting closure of the relevant classes and on condition that the petitioner Management will have to comply with the provisions of Section 40B of the Bombay Primary Education Act, 1947 (hereinafter referred to as 'the Act' for short) and the conditions of the contract of appointment shall be satisfied and the necessary compensation shall be the liability of the petitioner Management. The said decision of granting approval for closure of the classes is challenged by the concerned teachers as well as to a limited extent by the petitioner Management by preferring Special Civil Application No. 17420 to 17422 of 2005 (preferred by the teachers) and Special Civil Application No. 16890 of 2005 (preferred by the petitioner Management). 3. So far as the petitions preferred by the teachers are concerned, they have been admitted, but the interim relief has been refused, whereas the petition preferred by the petitioner Management was for putting the condition for compliance to the provisions of Section 40B of the Act but the same was dismissed. The matter was carried in LPA and it is stated that the LPA has been dismissed with the observations that the petitioner may raise all the contentions, as may be available in law, before the competent Authority when procedure under Section 40B of the Act is undertaken. It appears that thereafter the petitioner issued notice to the concerned teachers for termination. The replies were given. Thereafter the proposal has been submitted by the petitioner to the Administrative Officer, Municipal Primary Education Board. It appears that thereafter the petitioner issued notice to the concerned teachers for termination. The replies were given. Thereafter the proposal has been submitted by the petitioner to the Administrative Officer, Municipal Primary Education Board. The Administrative Officer thereafter has passed the order, whereby the approval is denied on the ground that the conditions for absorption in the other Schools is not complied with and on the ground that the aforesaid petitions are preferred by the teachers before this Court and they are pending and the matter is subjudice. It is under these circumstances, the said orders of the Administrative Officer denying the approval to the petitioner, the petitioner has approached this Court by preferring the present petitions. 4. Heard Mr. D.C. Dave, learned Counsel for the petitioner in all the petitions, Mr. Deepak R. Dave, Mr. Chauhan, and Mr. Bukhari, learned Counsel for the concerned teachers, Mr. Vijay Patel, learned Counsel for the Administrative Officer and Mr. Soni, learned AGP for the State Authorities. 5. It appears that the permission for closure of the classes has been granted by the Director of Primary Education. It is also true that the petitions are preferred by the concerned teachers before this Court against the said decision, but the fact remains that this Court has declined the interim relief and as a result thereof, the order passed by the Director of Primary Education for permitting closure of the concerned classes would remain in operation. Of course, the same, at the most, may be subject to the final order, which may be passed by this Court in the respective petitions preferred by the teachers. The perusal of the order passed by the Director of Primary Education for granting approval speaks for two conditions; one is that the provisions of Section 40B of the Act will be required to be complied with; and the second is that the Management shall have to satisfy the terms and conditions of the contract and on account of the approval granted, if the teachers are to be terminated as per Schedule "F", the liability for paying compensation shall be of the management and there shall not be any legal and financial liability of the State Government. The impugned order of the Administrative Officer deserves to be examined in light of the aforesaid two conditions provided. 6. The impugned order of the Administrative Officer deserves to be examined in light of the aforesaid two conditions provided. 6. Section 40B of the Act provides that no teacher of a recognised Private Primary School shall be terminated until opportunity is given to such teacher to show cause against the proposed action and the second requirement is that the action proposed to be taken must be approved by the Administrative Officer of the School Board. 7. It appears that in the present case, the opportunity was given to the teacher and the reply has also been submitted. Therefore, first part of Section 40B(1)(a)(i) stands complied with. So far as second part of Section 40B(1) (a)(ii), it was required for the Administrative Officer to examine as to whether the first part is complied with and as to whether the approval deserves to be granted or not by exercising the discretion vested to him, after taking into consideration the ground germane to the exercise of such power for grant of approval. 8. It appears that in the present case there is no findings by the Administrative Officer that the opportunity has not been given by the petitioner Management to the concerned teachers. However, in exercise of the discretion for grant of approval he has taken into consideration two aspects; one is of non-compliance of the conditions of appointment letter and the another is the pendency of the petitions before this Court and the matter being subjudice. So far as the second ground is concerned, it appears that the discretion is not properly exercised inasmuch as once the petition is admitted, but the interim relief is refused, it is deemed that the order for grant of closure of classes is to operate, may be subject to final order, which may be passed in the concerned petitions. Therefore, even if such circumstances of pendency of petitions is considered as a relevant circumstance for exercise of discretion by the Administrative Officer, keeping in view the peculiar circumstance that the interim relief was refused by this Court in the concerned petitions, he could have considered the matter for grant of permission or otherwise, but subject to the final order, which may be passed by this Court in the concerned petitions. 9. 9. The first aspect of non-compliance to the conditions of appointment, if examined in light of the appointment order, it appears that the appointment order of the concerned teachers provides for various conditions, relevant of which reads as under:- "You will be served in any institutions of the Society as may be directed by the Society." 10. Therefore, the aforesaid condition does provide for enabling power to the petitioner to call upon the concerned teacher to serve as teacher of any of the institutions of the Society as may be directed by the petitioner. This clause, if read broadly, it would mean that at the time when the concerned teachers were appointed the petitioner did contemplate that the teachers may be required to serve at the other institution of the petitioner society and keeping in view the said aspects, such condition was incorporated. Such condition would equally create a counter-right in favour of the teacher to the extent of serving in any of the institution under the control of the petitioner society. The learned Counsel appearing for the concerned teachers mainly emphasised on the said aspects and such was the basis of the submission by the learned Counsel appearing for the Administrative Officer, who has passed the order. However, the matter does not end there. Even if it is considered that such creates a counter-right in favour of the teachers for serving in the other institution of the Society, it cannot be read in the other institution of the society, where either the teachers are not qualified or they are not basically entitled to discharge the duty as teacher. It is an admitted position that the concerned teachers were appointed in primary level (Gujarati Medium) School of petitioner Society. Therefore, such right of serving in the other institution at the most, can be extended as teacher of Primary Level (Gujarati Medium) School under the control of the petitioner. It is the case of the petitioner that there is no other Primary Level (Gujarati Medium) School or Classes, where the present teachers can be accommodated. However, the learned Counsel for the concerned teachers only contended that there are other large number of other institutions, where the teachers can be accommodated. It is the case of the petitioner that there is no other Primary Level (Gujarati Medium) School or Classes, where the present teachers can be accommodated. However, the learned Counsel for the concerned teachers only contended that there are other large number of other institutions, where the teachers can be accommodated. In furtherance to their submission, by relying upon the letter-head of the petitioner, copy whereof is produced on page 55 and other correspondences, it is submitted that in the list of the institutions established by the petitioner society, at Item No. 14, there is one H.K. Primary Practicing School (Gujarati Medium) and at Item No. 17, there is one A.G. Primary School (Gujarati Medium). It appears that at the time of appointment, the respondent teachers were appointed and posted in H.K. Primary Practicing School (Gujarati Medium). However, it also appears that thereafter services were transferred to A.G. Primary School (Gujarati Medium). At the time when the application for closure of classes was made, the concerned teachers were working in A.G. Primary School (Gujarati Medium). Therefore, if H.K. Primary Practicing School (Gujarati Medium) as mentioned in the letter-head is still a School under the control of the petitioner and the post and the vacancy are available, where the concerned teachers can be accommodated, the said right of the concerned teachers can be read to that extent. However, it appears that the Administrative Officer, without examining the said aspect, has recorded a vague findings that the conditions of appointment are not complied with. Such can be said to be an apparent error committed by the Administrative Officer in exercise of the discretion for grant of approval. 11. In view of the aforesaid, both the aspects, which have been considered by the Administrative Officer for denying approval can be said as not in proper exercise of the discretion for granting approval or otherwise. Hence, the order passed by the Administrative Officer, which is impugned in the present petition, cannot be sustained. 12. 11. In view of the aforesaid, both the aspects, which have been considered by the Administrative Officer for denying approval can be said as not in proper exercise of the discretion for granting approval or otherwise. Hence, the order passed by the Administrative Officer, which is impugned in the present petition, cannot be sustained. 12. The learned Counsel appearing for the concerned teachers, contended that pending the petition, though there was no express order for grant of approval, retrenchment compensation has been forwarded by the petitioner and the services are terminated and is also accepted by the concerned teachers, but it was submitted that such could be by over-reaching the judicial process, whereas the learned Counsel appearing for the petitioner, contended that since the order was stayed, the action was taken for paying retrenchment compensation and for termination. In my view, it may not be required for this Court to examine the said aspect and the legal consequence may follow upon the decision, which may be taken by the Administrative Officer after hearing the parties as directed hereinafter. 13. In view of the aforesaid, the impugned order passed by the Administrative Officer declining the approval is quashed and set aside with the direction that the proposal shall stand restored and the Administrative Officer shall examine the matter once again after taking into consideration the observations made by this Court in the present order and shall take appropriate decision in accordance with law. The aforesaid exercise shall be completed preferably within a period of 45 days from the date of receipt of the order of this Court. It is also observed that both the sides shall be at liberty to raise contentions on the other aspects, if available, in accordance with law. 14. The petitions are allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. Petitions allowed.