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2021 DIGILAW 512 (GUJ)

MANIBEN RAMJIBHAI DANGAR v. STATE OF GUJARAT

2021-07-01

BHARGAV D.KARIA

body2021
ORDER : Heard learned advocate Mr.Vishwas K. Shah for the petitioners, learned Assistant Government Pleader Mr.Jayneel Parikh and learned Assistant Government Pleader Mr.K.M.Antani for the respondent-State through video conference. 1. Learned advocate Mr.Shah has tendered a draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 2. Both the petitions arise out of the common issue of treating the petitioners as surplus teaching and non-teaching staff and therefore, the same are heard analogously and are disposed of by this common order. Special Civil Application No.8926 of 2017 is treated as lead case. 3. The petitioners have prayed for the following reliefs : “A. Your Lordships may be pleased to admit and allow this application. B. Your Lordships may be pleased to Issue a writ of mandamus or in the nature of certiorari or any other appropriate writ, order or direction declaring the Petitioners as “Surplus” teaching and non-teaching staff and further directing the Respondent Authorities to protect the service conditions as well as absorb the Petitioners in any other self-financed, grant-in-aid college and/or Government College. C. Pending Admission, Hearing and Final Disposal of the Petition, Your Lordships may be pleased to direct the Respondent Authorities to maintain the status-quo qua service conditions of the Petitioners till they are being declared “Surplus” and further absorbed in any other self-financed, grant-in-aid college and/or Government College. D. Costs of this Petition are awarded. E. Such further and other relief, order or direction which may be just, fit proper and equitable in the facts and circumstances of the Petition.” 4. The Brief facts of the case are as under : 4.1. The petitioners are teaching and non-teaching staff of respondent No.5-College, wherein, the petitioner Nos.1 and 2 are lecturers who are authorized and in representative capacity of other teaching staff working with respondent No.5-College have preferred this petition whereas, petitioner No.3 is Junior Clerk, petitioner Nos.4,5 and 6 are Groundmen, petitioner No.7 is peon, petitioner No.8 is sweeper and petitioner No.9 is a watchman. 4.2. The State Government through the Respondent No.1-Education Department issued Resolution dated 16.09.1992, granting permission to start the college for Physical Education to the respondent No.4-Ahir Kelavani Mandal and accordingly, the respondent No.5- Dr.Subhash College of Physical Education was started on the basis of the terms and conditions of the said resolution. 4.3. 4.2. The State Government through the Respondent No.1-Education Department issued Resolution dated 16.09.1992, granting permission to start the college for Physical Education to the respondent No.4-Ahir Kelavani Mandal and accordingly, the respondent No.5- Dr.Subhash College of Physical Education was started on the basis of the terms and conditions of the said resolution. 4.3. The respondent No.2-Commissioner of Higher Education granted permission to start respondent No.5-College vide letter dated 23.09.1992 and pursuant thereto, the petitioners were appointed for the respective posts by office order dated 24.10.1994 after following the due recruitment process. 4.4. During the recruitment process Representatives from the Government were also present and having cleared the selection committee and interview procedure, all the appointments were made and thereafter, the sanction letters were also issued by the respondent No.2-Commissioner of Higher Education. On completion of the probation period, the petitioners were confirmed and made permanent on their respective posts by the respondent No.5- College. 4.5. The respondent No.4 proposed to open the General Provident Fund account for the employees including the petitioners and for which necessary entries were required to be made in their respective service books. The respondent No.3-District Education Officer by letter dated 05.05.1995 granted the approval to open the General Provident Fund accounts for the respective employees. The petitioners were also granted the higher pay scales pursuant to the Government Resolution dated 16.08.1994 and all other consequential benefits were extended to the petitioners. It is therefore the case of the petitioners that they are treated at par with other Government teaching and non-teaching staff as their terms of employment were governed as per the Policy of the Government and accordingly, the petitioners were also given the benefit of fifth pay commission. 4.6. The services of the petitioners were sought to be terminated after more than 20 years on the ground that the respondent No.5-College is on the verge of closing down because of the lack of number of students being allotted to the college. The petitioners have therefore approached this Court by preferring this petition. The similarly situated persons like the petitioners earlier preferred the Special Civil Application No.1277 of 2017. The petitioners have therefore approached this Court by preferring this petition. The similarly situated persons like the petitioners earlier preferred the Special Civil Application No.1277 of 2017. This Court (Coram : Hon’ble Ms.Justice Sonia Gokani, J.) by order dated 13th February, 2017 permitted the petitioners to make a representation to the respondent No.2-Commissioner of Higher Education and the respondent authority was directed to consider the same in accordance with law with the prevalent rules. 4.7. It appears that accordingly, respondent No.2- Commissioner of Higher Education by order dated 26th July, 2017 after giving opportunity of hearing to the 11 similarly situated persons who were employees of respondent No.5, passed an order after considering all the aspects canvassed in the earlier petition as well as presented before the respondent NO.2 and rejected the representation of the petitioners on the ground that by Government Resolution dated 16.09.1992, respondent No.4 was granted permission to start self finance college without any grant from the Government and on an undertaking given by the respondent No.4, it was also one of the conditions to start the respondent No.5-College to pay the salary of staff as per Government Rules and Regulations. In that view of the matter, it was decided by the respondent No.3 that the petitioners cannot be declared as surplus as the respondent Nos.4 and 5 are non grant-in-aid institutions and therefore, the petitioners cannot be absorbed in any other grant-in- aid institution and there is no policy of the Government to absorb such employees of non grant-in-aid institutions as such institutions are governed by the self finance and are not dependent upon the Government for any financial assistance. 5.1. Learned advocate Mr.Shah has challenged the aforesaid order dated 26.07.2017 by way of a draft amendment which is already granted. 5.2. Learned advocate Mr.Shah submitted that the petitioners with all intents and purpose are treated at par with the Government employees since they are getting the same pay scales as that of the Government employee including the revision of pay scales and other benefits. 5.2. Learned advocate Mr.Shah submitted that the petitioners with all intents and purpose are treated at par with the Government employees since they are getting the same pay scales as that of the Government employee including the revision of pay scales and other benefits. It was submitted that the petitioners have served the respondent Nos.4 and 5 for almost 20 years since the year 1992-1993 in their respective capacities and therefore, the services of the petitioners are required to be protected by absorbing the petitioners in other self finance non grant-in-aid colleges or in any other manner and it is the responsibility of the respondent authority to absorb the petitioners as they are relieved from the services by the respondent No.5-College. 5.3. Learned advocate Mr.Shah further submitted that the stand taken by the respondent authority that the petitioners cannot be absorbed as they were serving with non grant-in-aid institution is without any basis in view of the fact that at the time of recruitment of the petitioners, representatives from the Office of the District Education Officer were present and the respondent No.3 has also permitted the respondent Nos.4 and 5 to open General Provident Fund accounts of the petitioners and their appointments were also sanctioned by the respondent authority and therefore, only because the respondent Nos.4 and 5 are self finance institutions, petitioners should not be left high and dry on closing down of the respondent No.5-College as it would result in economic death of the petitioners after putting more than 20 years of service. 5.4. Learned advocate Mr.Shah submitted that it is the duty of the respondent authority to absorb the petitioners in any other self finance non grant-in-aid institutions or any other grant-in-aid institutions considering the plight of the petitioners, more particularly, when all the Rules and Regulations of Government employee are made applicable to the petitioners and are being supervised and governed by the respondent Nos.4 and 5-self finance institutions. 6.1. On the other hand, learned Assistant Government Pleader Mr.Antani submitted that the petitioners are never Government employees. The petitioners were appointed under the scheme of the self finance non grant-in-aid institution and the scheme of absorption of the surplus employees which is as per the Government Resolutions dated 21.05.1994 and 23.06.2016 is applicable only to Government and grant-in-aid institutions and not applicable to non grant-in-aid institutions. 6.2. The petitioners were appointed under the scheme of the self finance non grant-in-aid institution and the scheme of absorption of the surplus employees which is as per the Government Resolutions dated 21.05.1994 and 23.06.2016 is applicable only to Government and grant-in-aid institutions and not applicable to non grant-in-aid institutions. 6.2. It was submitted that both the Government Resolutions dated 21.05.1994 and 23.06.2016 would be applicable to grant-in-aid and Government institutions and as the petitioners are employees of the self finance non grant-in-aid institution, such benefit of declaring them as surplus and absorbing them in other grant-in-aid institutions would not be applicable. Learned Assistant Government Pleaders relied upon the terms and conditions of the Government Resolution dated 16.09.1992 to point out that the respondent No.4 is granted permission to start respondent No.5-College on self finance basis without any grant-in-aid and therefore, the petitioners who are employed by the respondent No.5 cannot get the benefit of grant-in-aid institution as per the aforesaid two resolutions. It was therefore submitted that the impugned order dated 26th July, 2017 after giving opportunity of hearing to the petitioners passed by the respondent No.2 is in consonance with the aforesaid two Government Resolutions and more particularly, the terms and conditions of the resolution dated 16.09.1992 by which the permission is granted to the respondent No.4 to start the college without availing any grant in aid from the Government. 6.3. Learned Assistant Government Pleader Mr.Antani further submitted that the terms and conditions stipulated in the resolution dated 16.09.1992 are with a view to see that the students of the college to be started by the respondent No.4-Trust are not affected only because the permission is granted on self finance basis and accordingly the supervisory powers are only exercised upon such self finance colleges as per the prevalent Government policy. 7. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that the petitioners are appointed by the respondent Nos.4 and 5 on the respective posts pursuant to the terms and conditions of the Government Resolution dated 16.09.1992 by which respondent Nos.4 was permitted to start the respondent No.5-College. 8. 8. As per the terms and conditions of the Government Resolution dated 19.09.1992, the respondent No.4 was permitted to start a self finance college without availing any grant from the Government and to that extent an undertaking is also filed by the respondent No.4 9. It is also pertinent to note that when the petitioners were appointed on the respective posts they were aware about the fact that they are being appointed by the self finance institution which has not availed any grant-in-aid benefit and with that awareness the petitioners have accepted their appointments at the relevant time. Merely because the respondent No.5-College is closing down due to lack of students, the petitioners cannot claim parity with the Government Employees who are regularly appointed in grant-in-aid institutions. The petitioners also cannot claim negatively that as there is no other conditions which prevents the Government from considering the employees of non grant-in-aid college for giving benefit of surplus Teacher, the petitioners should be declared surplus Teachers. The Government Policy is clear that the benefit of reabsorption on surplus basis can be granted only to the employees of grant-in-aid institutions as such institutions are financed by the Government by providing 100% grant. Therefore the employees of such grant-in-aid institutions are the Government employees whereas, the petitioners are the employees of the private college run by the respondent No.4 who did not avail any grant from Government in view of the Government Resolution dated 16.09.1992. The petitioners therefore cannot claim parity with the Government employees only because terms and conditions of their services are as per the Rules and Regulations stipulated in the Government Resolution dated 16.09.1992 which prescribes that such employees would be governed by the Government Rules and Regulations and only on that basis the petitioners cannot be considered as surplus by the Government and cannot be absorbed in any other grant-in-aid institutions. 10. Moreover, only because the General Provident Fund accounts are opened by the respondent Nos.4 and 5 in name of the petitioners, the same cannot entitle the petitioners to claim the benefit of surplus teaching and non-teaching staff as opening of General Provident Fund is even otherwise mandatory under the provisions of the Provident Fund Act and merely because the District Education Officer granted such permission, it cannot be said that the petitioners are at par with the Government employees. 11. 11. In view of the foregoing reasons, both the petitions are devoid of any merit and are accordingly dismissed. Notice is discharged.