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Gujarat High Court · body

2019 DIGILAW 1084 (GUJ)

Anitkumar Amratbhai Patel v. State of Gujarat

2019-11-18

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. The captioned writ petitions are filed seeking a direction on the respondent authorities to accept the application forms of the petitioners by considering their 5 years teaching experience rendered as Shikshan Sahayak in the registered non-government granted secondary and higher secondary schools. 2. As regards the prayer seeking quashing and setting aside the Rule 2(d) of Notification dated 11th February, 2011 is concerned, the petitioners have not pressed the same before the Division Bench. 3. The entire case of the petitioners is based on the definition of 2(d) of the Teachers and Headmasters of the Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 (for short "the Rules, 2011") which was promulgated vide notification dated 11th February, 2011. 4. The petitioners were appointed as Shikshan Sahayaks (Assistant Teachers) after undertaking a regular selection process pursuant to the advertisement. They were appointed for a period of 5 years on a fixed pay and after completion of aforesaid period they are further placed on a regular scale of Rs. 9300-34800/-. The State Authority, thereafter, issued an advertisement dated 12th April, 2016 for filling up the posts of Shikshan Sahayak as well as the old teacher. 5. The petitioners, who were appointed on a fixed pay for five years, are excluded from the aforesaid recruitment process in view of the definition of 2(d) of the Rules, 2011 defining "old teachers". 6. Learned advocate Mr. R.D. Kinariwala for Mr. Bipin Jasani for the petitioners has submitted that the aforesaid action of the respondent authorities to exclude them is illegal and irregular since the petitioners fall within the definition of "old teachers", and they also possess 5 years experience as such. 7. He has submitted that the respondent authorities have excluded the petitioners only on the basis of their initial appointment as they are appointed on a fixed pay for 5 years. He has submitted that once the petitioners have successfully completed 5 years of services in the fixed pay and are confirmed in regular pay scale, they cannot be excluded from participating in further recruitment process by treating that their appointment as irregular. 8. Learned advocate Mr. Kinariwala has placed reliance on the judgment and order of the Division Bench of this Court in the case of Shree Yogkshem Foundation for Human Dignity Vs. 8. Learned advocate Mr. Kinariwala has placed reliance on the judgment and order of the Division Bench of this Court in the case of Shree Yogkshem Foundation for Human Dignity Vs. State of Gujarat & Ors, reported in 2012 (5) GLR 4533 in support of his submissions and has submitted that as per the observations made by the Division Bench, the entire period of fixed pay is to be considered for future benefits, once an employee is placed in regular pay scale. 9. He has submitted that the Finance Department, State of Gujarat has also introduced the resolution dated 18th January, 2017 whereby it is declared by the State Government that the Class-III and Class-IV employees, who are appointed on a fixed pay on their confirmation, after rendering 5 years shall be conferred the benefit of promotion, seniority and higher pay-scale as well as the retiral benefits by including such period. He has submitted that thus, the services rendered by the present petitioners as Assistant Teachers on the fixed pay cannot be ignored. (The Resolution dated 18th January, 2017 is ordered to be taken on record). 10. In response to the above, the learned Assistant Government Pleader Mr. Joshi has submitted that the case of the petitioners would not be covered under the definition of 2(d) of the Rules, 2011. He has submitted that admittedly the petitioners have rendered their services on the fixed pay and they do not have the experience for 5 years regular service, and hence they cannot be permitted to participate in the recruitment process initiated vide advertisement 12th April, 2016. He has submitted that the aforesaid judgment and order of the Division Bench is further challenged in the Supreme Court, however, the State Authorities have implemented the aforesaid judgment and granted the regular pay-scale to the employees, who are appointed on a fixed pay. It is further submitted that since the petitioners have given up their challenge to the definition of 2(d) of the Rules, 2011 before the Division Bench, they are not entitled for the same. 11. Learned advocate Mr. A.D. Oza appearing for the respondent No. 2- Board i.e. Gujarat Secondary and Higher Secondary has submitted that as per the definition of the 2(b), which defines the Registered Private School, the cases of the candidates are required to be considered only if they have rendered their services under such school. 12. 11. Learned advocate Mr. A.D. Oza appearing for the respondent No. 2- Board i.e. Gujarat Secondary and Higher Secondary has submitted that as per the definition of the 2(b), which defines the Registered Private School, the cases of the candidates are required to be considered only if they have rendered their services under such school. 12. I have given my thoughtful consideration to the rival submissions advanced by the learned advocates for the respective parties. 13. The issue raised in the present matters hinges on the definition of "old teacher" as defined under Rule 2(d) of the Rules, 2011, which is promulgated vide Notification dated 11th February, 2011. Said Rule 2(d) is reproduced herein below for ready reference;- Rule 2(d) reads as under:- 2(d): "Old teacher" means the teacher who is already in the service of the registered private school and possesses five years experience as regular teacher and has applied for new appointment in another private school." 14. The case of the petitioners is required to be examined in light of the provision of Rule 2(d). The present petitioners were appointed after undergoing a regular selection process pursuant to the advertisement. They were appointed for a period of five years as Shikshan Sahayak on a fixed pay. On completion of satisfactory service of five years, they were placed in the regular pay-scale of Rs. 9300-34800/-. Thus, it is not the case of the respondent authorities that their appointments are illegal or are made through back-door entry. 15. As regards the submissions advanced by the learned Assistant Government Pleader that the writ petitions cannot be entertained since the petitioners have given up their challenge to the Rule 2(d) of the Rules, 2011, the same does not deserve acceptance. The petitioners have voiced their grievance of excluding them from the definition of 2(d) and after considering their grievance it is found that they are illegally excluded. Thus, it is not necessary for them to challenge the provision of Rule 2(d). 16. In the considered opinion of this Court, there lies fallacy in the interpretation given by the State Authority to the expression "regular teacher" incorporated in the definition of "old teacher". The respondents are interpreting the same as if the expression "regular teacher" applies to only those teachers who are conferred the regular pay scale after completion of five years. 16. In the considered opinion of this Court, there lies fallacy in the interpretation given by the State Authority to the expression "regular teacher" incorporated in the definition of "old teacher". The respondents are interpreting the same as if the expression "regular teacher" applies to only those teachers who are conferred the regular pay scale after completion of five years. In fact the petitioners are confirmed on the post after rendering the service of five years. No provision of law is pointed out to this Court which bars ad hoc teachers from the definition of "regular teacher". In absence of such stipulation in the Rules, the respondent authorities cannot supply their own interpretation by excluding the petitioners from the definition and bar them from participating in the recruitment process. The confirmation of regular pay scale is not sine qua non for deciding the status of such teachers. The appointments of the petitioners were conferred by undertaking a regular selection process and after completion of 5 years of services as ad hoc they are placed in the regular pay scale. Once, they are confirmed and are placed in the regular pay such confirmation relates back to their original date of appointment. Their earlier services do not get washed away, and they cannot be treated as if they are fresh appointees. Hence, on completion of satisfactory service of five years and on their confirmation, the petitioners get encompassed within the definition of "old teachers". 17. At this stage, it would be pertinent to refer to the government resolution dated 18th January, 2017 issued by the Finance Department, State of Gujarat. The respondent State has not disputed about the issuance of the aforesaid resolution. The resolution dated 18th January, 2017 specifically refers to the service period of employees of all Class-III and Class-IV rendered by them on fixed pay. It specifically mentions that the period of 5 years rendered by Class-III and Class-IV employee will count towards promotion, seniority, grant of higher pay scale as well as the retirement benefits. Thus, the aforesaid period of 5 years rendered by the present petitioners on the fixed pay cannot be consciously ignored for further allowing them to participate in the recruitment process as initiated vide advertisement dated 12th April, 2016. 18. Thus, the aforesaid period of 5 years rendered by the present petitioners on the fixed pay cannot be consciously ignored for further allowing them to participate in the recruitment process as initiated vide advertisement dated 12th April, 2016. 18. It goes without saying that the cases of the petitioners are required to be considered under the provision of Rule 2(d) read with 2(b) of the Rules, 2011, which defines " Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011. Thus, the petitioners, who have rendered their services in the registered private school(s) and also possess 5 years of services experience are entitled to consider for participation in the recruitment process as initiated vide advertisement dated 12th April, 2016. 19. During the pendency of the writ petition(s); pursuant to the interim order dated 29th June, 2016, the learned Assistant Government Pleader has tendered the affidavit dated 23rd October, 2019, wherein the respondent authorities have prepared the merit list including the present petitioners. The cases of the petitioners or such teachers shall be considered as per the list prepared by the respondent authorities in light of the aforesaid provision of Rules 2(d) and 2(b) of the Notification dated 11th February, 2011. 20. The writ petition succeeds. Rule is made absolute.