Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 895 (GUJ)

Ilaben Natvarlal Dave v. State of Gujarat

2019-10-11

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. The present application has been filed for quashing and setting aside the order dated 03.06.2007 passed by the respondent No. 3 and also to quash the order dated 03/04.05.2017 passed by the District Education officer. It is also further prayed that her case may be considered for voluntary retirement. 2. At the outset, learned advocate Ms. Mamta Vyas, upon instruction of the petitioner, has submitted that the petitioner is ready and willing to accept the voluntary retirement on completion of 20 years of service with the benefits of 5th and 6th pay commission. 3. The brief facts of the case are as under: 3.1 The petitioner was appointed as an Assistant Teacher on 01.07.1988 in the vocational stream of the Higher Secondary Section of Janta Hindi Madhyamik Vidyalaya, Ahmedabad. Since the appointment of the petitioner was made after getting approval from the District Education Officer. She was getting the salary under the Direct Payment Scheme from the date of her appointment. 4. Learned advocate Ms. Mamta Vyas has submitted that though this court had directed the District Education Officer by the order dated 17.10.2000 passed in Special Civil Application No. 4833 of 2000 to decide the claim of the petitioner for her posting at any school either in Ahmedabad city or Ahmedabad rural within a period of one (1) month and till the matter is decided by the respondent No. 2, the interim relief, which was granted by this court vide order dated 10.05.2000, was ordered to be continued, but the respondent District Education officer did not abide by the same. She has also referred to the interim order dated 10.05.2000, which was granted, while issuing the notice in terms of paragraph No. 12(d). 4.1. She has submitted that thereafter, the petitioner made representations dated 15.03.2001, 11.06.2001, 04.07.2003, 15.07.2003 and 22.07.2003 to the respondent authority to comply with the orders passed by this court and grant her increments and release the same from 2001 onwards. However, the same was not done. Thereafter, she has submitted that the District Education officer vide communication dated 23.07.2002, asked the petitioner to resume the duty at Government Girls High School, Raikhad, Ahmedabad for marking her presence but she was not allotted any work. However, the same was not done. Thereafter, she has submitted that the District Education officer vide communication dated 23.07.2002, asked the petitioner to resume the duty at Government Girls High School, Raikhad, Ahmedabad for marking her presence but she was not allotted any work. It is also contended by the learned advocate that since the petitioner was not allowed to work, by the communication dated 25.07.2003, the petitioner requested the District Education Officer, Ahmedabad to accept her voluntary retirement after a period of three (3) months w.e.f. 25.10.2003. She has submitted that thereafter, her salary was stopped by the District Education officer and hence, she was constrained to file Special Civil Application No. 6115 of 2007, which was disposed of by the order dated 07.03.2007 directing the District Education officer, to take necessary decision on the representation filed by the petitioner. 4.2. She has submitted that thereafter, by the impugned order dated 03.06.2007, the District Education Officer rejected the case of the petitioner for voluntary retirement as she is not qualified for the same and as regards to her entitlement of the GPF is concerned, it is submitted that only after she resigns, it would be given to her. She has submitted that the authority has thus, flouted the direction of this court by not allotting any work to the petitioner and thereafter, by not absorbing her in any other School. She has submitted that during the pendency of the writ petition, this court though directed the respondent authority vide interim order dated 28.02.2017 to examine all the aspects, by the impugned order dated 03/04.05.2017, the District Education officer has confirmed their earlier order without application of mind and hence, the impugned orders are required to be set aside. 4.3. It is submitted that the petitioner was asked to mark her presence at the Government Girls High School, Raikhad, Ahmedabad everyday and she went there to mark her presence however, no final order was passed by the District Education officer and she was also not allotted any work. She has submitted that the petitioner was forced to sit idle and hence, she had applied for voluntary retirement and the same is also not accepted. She has submitted that the petitioner was forced to sit idle and hence, she had applied for voluntary retirement and the same is also not accepted. It is also submitted that in fact the respondent authority has never cancelled the protection of surplus teacher granted to her hence, she is entitled for voluntary retirement under the provision of rule 48 of the Gujarat Civil Services (pension) Rules, 2002 (GCSR (Pension)). Thus, there being no reason, the District Education Officer on the one hand, did not allow her to work and on the other hand did not sanction her voluntary retirement, despite the order of this court. She has submitted that the petitioner cannot be made to suffer for such inaction on the part of the District Education Officer hence, she may be given all the benefits as prayed for in the petition. 5. Per contra, learned Assistant Government Pleader Mr. Ishan Joshi for the respondent authority has submitted that the petitioner is not entitled to the voluntary retirement as a matter of right as she has not completed the requisite 20 years of service as required by the statutory provision. It is submitted by him that as per the Government Resolution dated 21.05.1994, surplus teachers are required to be protected and continued in the parent school until they are absorbed in another school and therefore, the petitioner was directed to resume at C.M. Vidyalaya at Bhalusana, Dist. Mehsana in July, 1998. However, the same was cancelled by the tribunal as the petitioner had preferred an application No. 322 of 1998 before the Gujarat Higher Secondary Education Tribunal and the tribunal has cancelled the posting order of the petitioner at C.M. Vidyalaya, Bhalusana, Dist. Mehsana and directed the petitioner to continue in the parent school and hence, the petitioner was continued as a surplus teacher and had drawn salary from Janta Hindi Madhyamil Vidyalaya, Ahmedabad i.e. her parent school. Mehsana and directed the petitioner to continue in the parent school and hence, the petitioner was continued as a surplus teacher and had drawn salary from Janta Hindi Madhyamil Vidyalaya, Ahmedabad i.e. her parent school. It was submitted by learned Assistant Government Pleader that once again, she was posted at Vadodara at Shri A.M. Pancholi Sarvajanik Higher Secondary School, Tejgadh, Vadodara and since the petitioner had not resumed her duty there and again preferred Special Civil Application No. 4833 of 2002 before this court, this court granted ad-interim relief and stayed the posting from Ahmedabad to Vadodara and accordingly, the District Education officer had asked her to resume her duty at Government Girls High School, Raikhad, in Ahmedabad. Learned Assistant Government Pleader has submitted that the petitioner was posted at Ahmedabad and she resumed her duty on 22.07.2003 and within three (3) days of service i.e. 25.07.2003, the petitioner raised demand regarding her increment, dues, arrears and benefit of 5th pay commission. It is submitted that it appears that petitioner was never interested in continuing her services and wanted benefit of salary by sitting idly at home. It is further submitted that the petitioner never cared to know that her parent school is not closed down since October, 2005. 5.1. Learned Assistant Government Pleader has submitted that it is an undisputed fact that the petitioner was given appointment on 01.07.1988 and was declared surplus on 21.11.1995 and hence, the petitioner had served only for seven (7) years continuously and had drawn the salary till September, 2004 and hence, she would not be entitled to voluntary retirement and thus, he has submitted that this petition may not be entertained. He has further invited attention of this court to the communication dated 24.04.2000 written by the District Education officer, Vadodara to the District Education officer, Ahmedabad City, wherein it is stated that the petitioner has not reported at A.M. Pancholi Sarvajanik Higher Secondary School, Tejgadh, Vadodara and necessary steps may be taken so that she can immediately report at the School and if she does not report, then her protection will be cancelled. 6. In response of the aforesaid submissions, learned advocate Ms. Mamta vyas has submitted that as per the information given by the petitioner under the Right to Information Act, 2005, there were 200 teachers, who were declared surplus from 2001 to 2005 and all were absorbed except the petitioner. 6. In response of the aforesaid submissions, learned advocate Ms. Mamta vyas has submitted that as per the information given by the petitioner under the Right to Information Act, 2005, there were 200 teachers, who were declared surplus from 2001 to 2005 and all were absorbed except the petitioner. She has submitted that the petitioner requested to grant her the benefit of posting as a surplus teacher in any other school. Vide letters dated 04.07.2003, 15.07.2003 and 22.07.2003, the petitioner requested to comply with the order of this court and also to give increments form 2001 onwards. However, the respondent did not accept her request and ultimately, she was forced to request for the voluntary retirement and that is also denied. She has placed reliance on the Government Resolution 21.05.1994, wherein the State of Gujarat has laid down the policy of granting protection to the surplus teachers. She has submitted that no procedure has been followed before cancelling the protection of surplus teachers by the District Education officer and hence, it is presumed that the petitioner was never declared as surplus. It is submitted that hence, the petitioner is entitled to the benefit of 5th and 6th Pay Commission. 7. Heard the learned advocates for the respective parties. 8. The established facts from the submissions advanced by the learned advocate for the respective parties and from the record are as under: • The petitioner was appointed as an Assistant Teacher in the vocational stream of Higher Secondary Section of Janta Hindi Madhyamik Vidyalaya on 01.08.1988. • Due to closer of classes, the petitioner was declared surplus. The policy of the State Government introduced vide Government Resolution dated 21.05.1994 presented the benefits, which are to be granted to a surplus teacher. 9. Thus, it is not in dispute that the petitioner was granted benefit of surplus teacher in July, 1998 and the respondent No. 3 directed the petitioner to report at C.M. vidhyalaya, Bhalusana, Mehsana and the same was challenged by the petitioner by filing an Application No. 322 of 1998 before the Gujarat Higher Secondary Tribunal and by the interim order, the petitioner was ordered to report at Janta Hindi Madhyamik Vidyalaya, Ahmedabad. Thereafter, the respondent No. 3 issued a communication dated 01.05.2000 directing the petitioner to resume at Shree A.M. Pancholi Sarvajanik Higher Secondary School, Tejgadh, Vadodara and the petitioner challenged the same by filing writ petition being Special Civil Application No. 4833 of 2000. The same was disposed of by the order dated 17.10.2000 by observing thus: "However, the respondents No. 2 is directed to decide the claim of the petitioner for her posting at any school either in Ahmedabad City or Ahmedabad Rural within a period of one month from the dare of receipt of writ this order. Till the matter is decided by respondent No. 2, interim relief which has been granted by this court on 10th may, 2000, shall continue and in case the order goes adverse to the petitioner of respondent No. 2, liberty is granted to her for revival of this special civil application by filing a simple note. Rule and special civil application stands disposed of accordingly with no order as to costs." 10. Thus, this court directed the respondent No. 2 to decide the claim of the petitioner for her posting at any school either in Ahmedabad City or Ahmedabad Rural within a period of one (1) month and further it was directed to post her at any school by the District Education officer and the interim order, which has been granted by this court on 10.05.2000 was continued. 11. This court by the interim order dated 10.05.2000 had granted ad-interim relief in terms of para 12(d) of the writ petition, which reads as under; "pending admissions, final hearing and disposal of this petition to stay implementation and operation of the letter at Annexure "C" and to permit the petitioner to continue to report with respondent No. 3 school as if the impugned action as well as letter dated 24.4.2000 at Annexure "C" are not passed." 12. Thus, this court by the impugned order had extended the interim relief by staying the letter dated 24.04.2000, by which the petitioner was posted as surplus teacher at A.M. Pancholi Sarvajanil Higher Secondary School, Tejgadh, Vadodara. Thus, this court by the impugned order had extended the interim relief by staying the letter dated 24.04.2000, by which the petitioner was posted as surplus teacher at A.M. Pancholi Sarvajanil Higher Secondary School, Tejgadh, Vadodara. Thereafter, the petitioner by the communication dated 25.03.2001 requested to implement the order of this court dated 15.03.2001, 11.06.2001 and 04.07.2003 and lastly, by 15.07.2003 and 22.07.2003 requested the respondent District Education officer, Ahmedabad to comply with the directions of this court and also to grant her increments from the aforesaid period, however, the District Education officer did not implemented the directions issued by this court. 13. Finally, by the communication dated 23.07.2002, the District Education officer asked the petitioner to report at Government Girls High School, Raikhad, Ahmedabad only for marking her presence. The communication dated 23.07.2002 specifically reveals that she was allowed only for marking her presence on that school and hence, she was not allowed to carry out actual duty. She marked again, by the communication dated 18.08.2003, the petitioner requested to grant her benefits of 5th and 6th Pay Commissions and also stated that she has received only 50% of arrears. Ultimately, the petitioner got frustrated due to the attitude of the District Education officer, Ahmedabad and by the communication dated 25.07.2003, she required the District Education officer, Ahmedabad to grant her voluntary retirement after 3 months i.e. 25.07.2003. She has specifically stated that she is very much disturbed due to the attitude of the District Education officer and hence, she is taking such step of voluntary retirement. 14. By the communication dated 25.07.2006, the District Education officer asked the petitioner to give necessary details as per rules, so that her retirement benefits can be processed and hence, she assumed that she was already retired from service by the letter dated 25.07.2006 and thus, she requested the respondent authority vide letter dated 04.03.2006 to grant her pension and retirement benefits. It appears from the communication dated 10.08.2006 that the Commissioner of Schools at Gandhinagar informed the District Education officer, Ahmedabad to undertake necessary procedure on the application of the petitioner, which was received on 20.06.2006. It appears from the communication dated 10.08.2006 that the Commissioner of Schools at Gandhinagar informed the District Education officer, Ahmedabad to undertake necessary procedure on the application of the petitioner, which was received on 20.06.2006. Ultimately, since nothing concrete was done, the petitioner filed a petition being Special Civil Application No. 1165 of 2007 and by the order dated 07.03.2007, this court disposed of the petition by directing the District Education officer, Ahmedabad to decide the representation made by the petitioner. 15. By the impugned order dated 03.06.2007, the District Education officer rejected the request of the petitioner for voluntary retirement on the ground that she cannot be voluntarily retired as she is not eligible for the same. It is further observed that she can be conferred benefit of GPF after she resigns from service. 16. The conspectus of the aforesaid facts would reveal that the respondent District Education officer never complied with the directions issued by this order of the court by absorbing her at any other school and she was only absorbed for marking her presence. 17. From tenor of the documents, it is revealed that her protection of surplus teacher was never cancelled as such no procedure has been followed by the respondent authority. The petitioner was conferred the benefits of surplus teacher on 21.11.1995 on the closer of the school Janta Hindi Madhyamik Vidyalaya, Ahmedabad, where she was teaching. Vide letter dated 25.07.2003, in view of the defiant attitude of the District Education officer, Ahmedabad, she was forced to take decision of voluntary retirement on 18.08.2003 however, it appears that no decision on her application dated 25.07.2003 was taken and ultimately, she was constrained to approach this court by filing Special Civil Application No. 6115 of 2007, wherein this court vide order dated 07.03.2007 directed the respondent District Education officer to decide the representation made by the petitioner and pursuant to the order of this court, vide order dated 03.06.2007 her request of voluntary retirement is rejected by the District Education officer. 18. Thus, since the protection of surplus teacher was never cancelled, the petitioner is entitled to the benefits of surplus teacher as envisaged in the Government Resolution dated 21.05.1994. 18. Thus, since the protection of surplus teacher was never cancelled, the petitioner is entitled to the benefits of surplus teacher as envisaged in the Government Resolution dated 21.05.1994. Reliance is placed by the learned Assistant Government Pleader on communication dated 24.04.2000 of the District Education officer, Vadodara to District Education officer, Ahmedabad cannot rescue the respondent authority since the petitioner was protected by the interim order of this court and the District Education officer have acted in defiance to the same and till he passed the order dated 23.07.2002, asking the petitioner to report at Government Girls Higher School, Raikhad, Ahmedabad City only for marking her presence. The petitioner was not allowed to actually work as a Teacher and she was forced to sit idle. She was also not paid the full salary. 19. It is not in dispute that the petitioner was appointed in 1988 and she would have reached the superannuation age on 03.04.2017 and she would be completing her 20 years of service as on 2008. Ultimately, after the aforementioned various proceedings and communications, the District Education officer vide order dated 03.07.2007 has responded that the petitioner is not entitled for the voluntary retirement that too, after order of this court and prior to that, the respondent authority had not taken any decision on the applications made by the petitioner. It is not in dispute that as per the provision of rule 48 of the Gujarat Civil Services (Pension) Rules, 2002, voluntary retirement benefits are is conferred to the employee, after completion of 20 years of continuous service. It the respondent authorities had passed appropriate orders of absorbing the petitioner in any school in Ahmedabad, she would have continued till 03.04.2017 and could have been paid all the benefits. 20. Thus, the respondent authorities are directed to treat the petitioner as voluntary retired from service after completion of 20 years of her service. The respondents are hereby directed to confer the benefits of 5th and 6th pay commissions and also pay arrears. Necessary orders in this regard shall be passed within a period of eight (8) weeks from the date of receipt of the writ of this order. 21. The respondents are hereby directed to confer the benefits of 5th and 6th pay commissions and also pay arrears. Necessary orders in this regard shall be passed within a period of eight (8) weeks from the date of receipt of the writ of this order. 21. Further, it is clarified that from the date of filing the application for voluntary retirement i.e. from 24.07.2003 till the date of completion of 20 years, the said period shall be treated as notional only for purpose of fixation of increments and pay-scale and also for calculating pension as well as other retirement benefits. 22. Resultantly, the present writ petition is allowed in part. Rule is made absolute to the aforesaid extent.