CAV JUDGMENT 1. The petitioner has challenged the order dated 29.6.2010 passed by the Deputy Director of Primary Education, Gandhinagar, the order dated 25.10.2011 passed by the Director of Primary Education and the order dated 4.2.2012 passed by the Deputy Director of Primary Education, whereby his claim to treat him protected teacher and grant him benefits of protected teacher till his retirement was not accepted. The petitioner has further prayed to order the respondents to give all benefits as protected teacher with effect from 1.10.1964 till the date of his retirement on 31.10.2002. 2. The case of the petitioner is that he was appointed on 1.10.1964 as part-time teacher and was asked to serve in Secondary Section of the school. It is his case that the Government issued resolution dated 4.6.1965, whereby it was decided that those teachers who were serving in secondary schools as on 29.3.1965 and continued in the same school or joined another secondary schools, their pay scale shall be protected and for those teachers who were appointed for the classes of 5,6 and 7 after 29.3.1965, pay scale of primary teacher shall be applied. The petitioner, therefore, claimed that since classes of 5 to 9 were in one unit of secondary school and since he was informed that his appointment was in the secondary section, he was governed by the resolution dated 4.6.1965 and therefore, his pay scale as secondary teacher was required to be protected when he was appointed as full time teacher in primary section in the year 1972. It is his further case that by virtue of the resolution dated 22.11.1984 of the Education Department of the State of Gujarat, he was required to be treated as full time teacher from the date of his appointment and made entitled to the benefits of protected teacher. He has averred that in similar case of one Shri N.T. Solanki who filed Application No.140 of 1990 before the Primary Education Tribunal, the Tribunal ordered to treat the said applicant as full time teacher from the date of his appointment by relying on the resolution dated 22.11.1984 and this Court even confirmed the said order of the Tribunal in Special Civil Application No.5242 of 1992. The petitioner has therefore, claimed that he is entitled to the similar treatment and the orders impugned are required to be quashed and set aside. 3. The petitioner has therefore, claimed that he is entitled to the similar treatment and the orders impugned are required to be quashed and set aside. 3. The petition is opposed by affidavit-in-reply stating that since the petitioner joined as part-time teacher in secondary school, he was not entitled to benefits of resolution dated 4.6.1965. 4. The petitioner, who appeared in person, made some oral arguments and also tendered written submissions. In his written submissions, he has stated that he was entitled to the benefit of the resolution dated 4.6.1965 as benefit of protected teacher was available to those teachers who were appointed in secondary section of the school. He further stated that he was also required to be treated as full time teacher as per the resolution of the Government dated 22.11.1984. As per his submission, the respondents have committed grave error in rejecting his claim on the ground that the resolution dated 22.11.1984 could not be retrospectively applied to his case. It is his further submission that when in the case of one Shri Solanki who preferred Application No.140 of 1990 before the Tribunal, the resolution dated 22.11.1984 was retrospectively applied, the respondents were expected to give same treatment to him and if such treatment was given to him then he would have been treated as full time teacher and made entitled to the benefit of the resolution dated 4.6.1965 as protected teacher. He thus urged to allow the petition and grant him the benefits as protected teacher from the date of his appointment till his retirement. 5. Learned Assistant Government Pleader Mr. Ronak Raval appearing for the State authorities submitted that the benefit of protected teacher was not meant for part-time teacher. Mr. Raval submitted that the petitioner wants the benefit of the resolution dated 4.6.1965 by treating him as full time teacher from the date of his appointment on the basis of the resolution dated 22.11.1984. The said resolution was only for the primary teachers who were employed as part-time primary teachers, whereas the petitioner was appointed as part-time secondary teacher. Mr. Raval submitted that the petitioner was appointed as full time primary teacher in 1972 and since then, he was working as permanent primary teacher and retired as full time primary teacher. Mr. Raval submitted that the petitioner has been given all benefits as full time primary teacher. Mr. Raval submitted that the petitioner was appointed as full time primary teacher in 1972 and since then, he was working as permanent primary teacher and retired as full time primary teacher. Mr. Raval submitted that the petitioner has been given all benefits as full time primary teacher. However, the petitioner since worked as part-time teacher till he was taken as full time primary teacher, he was neither entitled to the benefit of protected teacher as per the resolution dated 4.6.1965 nor even the benefit of the resolution dated 22.11.1984 to treat him as full time primary teacher from the date of his appointment. Mr. Raval, therefore, submitted that no illegality could be said to have been committed in passing the impugned orders. He thus urged to dismiss the petition. 6. Having heard the petitioner in person and learned Assistant Government Pleader Mr. Ronak Raval, and having perused the record of the case with two resolutions dated 4.6.1965 and 22.11.1984 and order dated 5.10.1999 made by the Primary Education Tribunal in Application No.199 of 1992 filed by the petitioner, it appears that the Tribunal issued final direction to the Director of Primary Education to decide the case of the petitioner to find out as to whether the petitioner was entitled to the benefit as a protected teacher as per the resolution dated 4.6.1965. It appears that pursuant to the said order, the Deputy Director of Primary Education held by his order dated 29.6.2010 at Annexure-H (page 55) that since the petitioner joined the service as part-time teacher with effect from 1.10.1964, the benefit of protected teacher was not available to him as per the resolution dated 4.6.1965. The Deputy Director also held that the resolution dated 22.11.1984 for treating the part-time teacher as full time teacher cannot be made applicable retrospectively. Accordingly, the Deputy Director turned down the request of the petitioner. The Deputy Director also held that the resolution dated 22.11.1984 for treating the part-time teacher as full time teacher cannot be made applicable retrospectively. Accordingly, the Deputy Director turned down the request of the petitioner. It appears that the petitioner then filed Special Civil Application No.6198 of 2011, wherein this Court after reproducing the observations made in Special Civil Application No.5242 of 1992 which was preferred by the State authorities challenging the order made by the Tribunal in Application No.140 of 1990 which was preferred by Shri Nanjibhai Tejabhai Solanki who was treated as full time primary teacher from the date of his appointment on the basis of the resolution dated 22.11.1984, directed the petitioner to make representation to the Director of Primary Education and also directed the Director of Primary Education to decide the representation of the petitioner in light of the observations made in Special Civil Application No.5242 of 1992. 7. At this stage, observations made by this Court in Special Civil Application No.5242 of 1992 which was preferred by the State authorities against another employee named Nanjibhai Tejabhai Solanki, are reproduced herein-below:- “ The petitioner has challenged the order dated 29.11.1991 passed by the Primary Education Tribunal in application No.40 of 1990 by which it is declared that the action of the petitioner school in not considering the respondent Nanjibhai Tejabhai Solanki as full time untrained assistant teacher is unjust, arbitrary and illegal. The Tribunal has directed the petitioner school to treat the respondent Nanjibhai Solanki as full time untrained assistant teacher from 15.6.1964 to fix his salary taking into consideration the pay and other allowances according to the Rules with effect from 22.5.1986 to pay the difference thereof after deducting the payment already made to him within three months from date of said order, to consider his pay in the pay scale of Rs.950-1400/-, to pay his salary with all other allowances payable on 10th of every calendar month and to make necessary entries in the service book of the respondent teacher. 2. Against the said order, a review application being Review Application No.2 of 1992 was filed. However, the Tribunal has rejected the same on 24.3.1992 on the ground that there is no error of law. 3. 2. Against the said order, a review application being Review Application No.2 of 1992 was filed. However, the Tribunal has rejected the same on 24.3.1992 on the ground that there is no error of law. 3. In this matter, Mr.H.M.Desai, learned advocate for the petitioner, states that the entire order passed by the tribunal is illegal inasmuch as there is no provision for making part time teacher as full time teacher. It may be stated that in fact, the practice of appointing part time teacher was not proper and legal and therefore, the Director of Education, Gandhinagar had issued a circular dated 22.1.1964 (Annexure-C) to all the Director Primary Education Officers for giving necessary instructions to all the school managements having part time teachers to treat them as full time teacher. In view of the said circular, respondent – teacher should have been treated as a full time teacher and would have been paid salary and other allowances as such. In fact, the action of the petitioner school in keeping the respondent No.1 teacher as part time teacher itself is not proper and he should have been appointed as full time teacher from the beginning. 4. In that view of the matter, the order passed by the Tribunal is in no way erroneous. I therefore do not find any substance in the petition. Hence, it is rejected.” 8. After this Court passed order in Special Civil Application No.6198 of 2011 preferred by the petitioner, the Director of Primary Education came to the conclusion that the order made in the case of Nanjibhai Solanki will have no application to the facts of the case of the petitioner and also refused to accept the request of the petitioner to treat him as protected teacher from the date of his appointment. 9. In the said order, the Director has observed that since the appointment of the petitioner was of part-time teacher in secondary school and since he was then continued in primary school, he cannot be made entitled to the benefits of protected teacher. It is further observed in the order that by resolution dated 22.11.1984, it was decided that since there was no provision for part-time teacher in the private schools, such teachers should be made full time and salary expenses of such teacher if found grantable as per the Rules, same was to be approved. 10. It is further observed in the order that by resolution dated 22.11.1984, it was decided that since there was no provision for part-time teacher in the private schools, such teachers should be made full time and salary expenses of such teacher if found grantable as per the Rules, same was to be approved. 10. Thus, the petitioner then made further representation which was turned down by order dated 4.2.2012 by informing the petitioner that there was no need to review the order dated 25.10.2011 made earlier. 11. It appears that the Scheme for protection of pay vide resolution dated 4.6.1965 was in respect of those regular full time secondary teachers who were serving as on 29.3.1965. Since the petitioner was not full time secondary teacher, the Director could not be said to have committed any error in holding that the petitioner was not entitled to the benefits of protected teacher under the resolution dated 4.6.1965. 12. As stated above, the petitioner was given appointment as full time primary teacher in the year 1972, the exact date of appointment was 12.6.1972. It is the case of the petitioner that he was asked to serve in the secondary section of the school before 1972. On this basis, the petitioner claimed benefits of protected teacher as per the resolution dated 4.6.1965. Therefore, when the petitioner asked for the benefit of protected teacher which was available only to secondary school teacher as per the resolution dated 4.6.1965, there was no question of considering the claim of the petitioner to treat him as full time primary teacher before 1972. 13. It is the case of the petitioner that since the Government has decided to treat all part-time teachers in the private primary schools as full time teachers by resolution dated 22.11.1984, however the petitioner cannot be made entitled to claim benefit of protected teacher as such benefit was available only to full time secondary teacher. The petitioner has prayed for giving the benefit of protected teacher from the date of his appointment till he retired under the resolution dated 4.6.1965. Since such benefits, as stated above, are not available to either full time primary teacher or part-time secondary teacher, the prayer of the petitioner to treat him as protected teacher and give him all benefits of protected teacher from the date of his appointment till he retired cannot be accepted. 14. Since such benefits, as stated above, are not available to either full time primary teacher or part-time secondary teacher, the prayer of the petitioner to treat him as protected teacher and give him all benefits of protected teacher from the date of his appointment till he retired cannot be accepted. 14. For the reasons stated above, the petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.