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Gujarat High Court · body

2022 DIGILAW 1410 (GUJ)

Vijaybhai Sureshbhai Panchola v. State Of Gujarat

2022-10-17

NIRZAR S.DESAI

body2022
JUDGMENT : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 27.08.2020 passed by the Respondent No.1 so far it relates to the present petitioner. 2. By consent of the parties the matter was heard finally. Hence, Rule. Learned Assistant Government Pleader Mr.Sahil Trivedi waives service of Rule on behalf of Respondent Nos.1, 2 and 4, learned advocate Mr.Parghi waives service of notice of Rule on behalf of Respondent No.3. 3. It is the case of the present petitioner that he belongs to scheduled caste and having caste certificate issued by the competent authority. He possesses required educational qualification for being appointed as Assistant Teacher in the school. Pursuant to the advertisement in local newspaper published on 22.06.2010 for the post of Shikshan Sahayak Teacher for standard 11th and 12th in self-finance school, petitioner applied pursuant to the aforesaid advertisement and ultimately he was selected by clearing the interview held by the Respondent No.3 school on 29.07.2010 and ultimately he was appointed as Assistant Teacher vide appointment order dated 29.07.2010 given by the school. 3.1 Thereafter on 01.01.2011 Respondent No.3 School submitted an application to Respondent No.2 school for giving approval to the appointment of the present petitioner as Assistant Teacher for non-granted higher secondary school. Since the aforesaid application for approval preferred by Respondent No.3 school before the Respondent No.2 pending for long, the present petitioner approached the Gujarat Educational Institutions Services Tribunal by filing Application No.1690 of 2014. 3.2 Thereafter during the pendency of the above referred application pending before the Gujarat Educational Institutions Services Tribunal, Ahmedabad the State of Gujarat issued Government Resolution dated 24.10.2017 whereby it was decided to regularize the services of teachers serving in non-granted higher secondary school having ‘staff profile’, who have cleared TET Examination. 3.3 As the petitioner also had cleared TET Examination and as the petitioner and other similarly situated persons who also had preferred the similar kind of application which was pending before the Education Tribunal, the Education Tribunal disposed of a group of applications pending before it by making the following observations in the order dated 5.9.2018: “[1] The proceedings referred to above involve identical question s of fact and law and are in light of the recent developments covered by the same G.R. issued by the respondent state. In such circumstances all the proceedings are disposed of by this common order & judgment. [2] In light of the G.R. No.UMR-1115-133- -1 (part file) dated 24.10.2017 and further in light of the purshis dated 29.8.2018 passed by the State as also the fact of similar cases having favourably considered by the State authorities, a fact of which judicial notice is and can be taken, and since all the petitioners have agreed thereto, we pass the following orders. [3] The petitions are ordered to stand disposed of in light of the circumstances that have now arisen after the issuance of the G.R. referred to herein before. The petitioners are directed to approach the appropriate authority through the proper channel within 15 days from the date of this order. It is further ordered that the appropriate authority would consider the application in accordance with and in the true spirit of the said G.R. dated 24.10.10.17. A personal hearing also be given to the petitioners of all the present proceedings and a decision be arrived at, at the earliest and before 31st December, 2018. It is made clear that interim relief granted herein shall continue till 31.12.2018. [4] In any case the petitioners are granted the liberty to approach this tribunal in accordance with law if any cause of action so arisen in connection with this order. [5] With the observations the petitions stand accordingly disposed of with no order as to costs. Copy of this order be placed on the record of each of the petitions covered by this common order.” 3.4 In compliance of the aforesaid order the petitioner also preferred application to respondent No.4 Commissioner of School and Mid Day Meal for regularizing his services. At the same time the respondent school also forwarded the ‘staff profile’ of the petitioner. However, according to the respondent authority vide order dated 5.9.2018 the concerned petitioners before the Education Tribunal were directed to approach the appropriate forum through proper channel within a period of 15 days, the respondent No.3 school forwarded the application of the petitioner beyond the period of 15 days. However, according to the respondent authority vide order dated 5.9.2018 the concerned petitioners before the Education Tribunal were directed to approach the appropriate forum through proper channel within a period of 15 days, the respondent No.3 school forwarded the application of the petitioner beyond the period of 15 days. Though the petitioner’s application pursuant to which order dated 5.9.2018 was forwarded by the school in the month of September, 2018, the respondent authority for almost 2 years did not take any decision on the same and vide order dated 27.8.2020 by way of common order in respect of 19 persons, including the petitioner, rejected the application of the petitioner for regularization on the ground that petitioner’s application was forwarded by the school on 26.9.2018, which is not within the prescribed time limit as per the order passed by the Tribunal and also on the ground that the petitioner does not have ‘staff profile’ and therefore, requisite condition of Government Resolution dated 24.10.2017 cannot be said to be fulfilled by the petitioner. 3.5 Being aggrieved by and feeling dissatisfied with the aforesaid order dated 27.8.2020, the petitioner has preferred this petition with a prayer to quash and set aside order dated 27.8.2020 and to direct the respondent authorities to regularize the services of petitioner with all consequential benefits thereto. 4. Mr.Rutul Kinariwala, learned advocate for the petitioner submitted that the petitioner had immediately made an application to respondent No.4 through proper channel pursuant to the order dated 5.9.2018 passed by the Education Tribunal and since the aforesaid application was to be made through proper channel, the petitioner made it to the school and the school in turn forwarded the same to the respondent authorities. It is further the case of the petitioner that it was the direction of the Education tribunal to approach the authority through proper channel within a period of 15 days was meant for the petitioner and it did not say that the school was to forward the application of the petitioner within a period of 15 days from the date of the order. Further, learned advocate for the petitioner submitted that as per order dated 5.9.2018, the petitioner was to forward his application through proper channel within a period of 15 working days, and therefore, it was not the fault on the part of the petitioner if the school forwarded the application of the petitioner on 26.9.2018. Further, learned advocate for the petitioner submitted that as per order dated 5.9.2018, the petitioner was to forward his application through proper channel within a period of 15 working days, and therefore, it was not the fault on the part of the petitioner if the school forwarded the application of the petitioner on 26.9.2018. Mr.Kinariwala, learned advocate for the petitioner further submitted that the petitioner has passed TET examination and as far as ‘staff profile’ is concerned, the same was also forwarded by the school. However, what was forwarded by the school was not considered to be ‘staff profile’ by the respondent authorities, and therefore, the respondent authority has also rejected the application of the petitioner for regularization on the ground that the petitioner does not have ‘staff profile’. Learned advocate for the petitioner submitted that the words ‘staff profile’ though is mentioned in the Government Resolution dated 24.10.2017, the word ‘staff profile’ is not defined anywhere. Unless there is a clarity about what is considered to be ‘staff profile’ or it is defined anywhere in the Government Resolution or under any of the law governing the service conditions of the petitioner, it is not open for the respondent authorities to reject the application of the petitioner on the ground that the petitioner does not possess the ‘staff profile’. He further submitted that more particularly when the petitioner is meeting with all the requirements related to appointment of higher secondary school teacher and has cleared the TET examination in that case, in absence of there being any definition for ‘staff profile’ the petitioner's application for regularization ought not to have been rejected by the respondent authorities on the ground that the petitioner does not possess ‘staff profile’. 4.1 Except the aforesaid submissions, no other submissions were made nor was any judgment referred by the learned advocate for the petitioner. 5. Mr.Sahil Trivedi, learned Assistant Government Pleader appearing on behalf of respondent Nos.1 and 2 vehemently opposed the petition and relied upon the affidavit in reply filed by one Ms.Tarunaben L. Desai, Education Inspector, District Education Office, Himmatnagar, Sabarkantha dated 9.5.2022 and affidavit in reply of the same deponent dated 27.9.2022. By relying upon the aforesaid two affidavits in reply Mr.Trivedi, learned Assistant Government Pleader submitted that prior to 5.8.2010 at the time of appointment of higher secondary school teacher for non-grant-in-aid school having ‘staff profile’ was a requirement. By relying upon the aforesaid two affidavits in reply Mr.Trivedi, learned Assistant Government Pleader submitted that prior to 5.8.2010 at the time of appointment of higher secondary school teacher for non-grant-in-aid school having ‘staff profile’ was a requirement. However, after the petitioner was appointed on 29.7.2010 the Gujarat Secondary and Higher Secondary Education Board vide circular dated 5.8.2010 resolved to quash the requirement of having ‘staff profile’ of the teachers to be verified by the concerned authorities. Considering the fact that the present petitioner’s appointment was prior to 5.8.2010, and therefore, on the ground that petitioner does not have verified ‘staff profile’, the petitioner's claim for regularization has been rightly rejected. Further, there is no answer coming forward from the learned Assistant Government Pleader as to why the application of the petitioner was rejected on the ground of delay when the application was forwarded after a delay of one week by the school, whereas, the direction to apply through proper channel within 15 working days issued by the Tribunal was in respect to the petitioner and not to the school. 5.1 Further, upon repeated queries from this Court that whether the words ‘staff profile’ is defined anywhere or not and what is the definition of ‘staff profile’, learned Assistant Government Pleader could not point out from any material or any rules, regulations or Government Resolutions which would define the word ‘staff profile’ by making following averments in para 2, which reads as under: “2 By way of this additional affidavit, the answering respondent prays to bring on record the checklist which is called for when an application is made by a non-government/nongranted school for regularizing services of its teachers. A proforma checklist is attached hereto and marked as Annexure R1.” 5.2 By relying upon the aforesaid averments, the learned Assistant Government Pleader submitted that if the record of a candidate selected as higher secondary school teacher in non-grant in aid school, is verified and sent by the school to the Government authority then the aforesaid checklist in the proforma attached to the affidavit is called ‘staff profile’. However, learned Assistant Government Pleader could not point out that the aforesaid proforma was made available to the schools and there was any circular or instructions to the school to submit the relevant details of the higher secondary teachers appointed in non-grant-in-aid school to consider the details filled in by the teacher as ‘staff profile’ and to verify the same and send it back to the respondent authorities. 6. Mr.V.D.Parghi, learned advocate appearing for respondent No.3 school supported the case of the petitioner and submitted that the appointment of the petitioner as Sikshan Sahayak in non-grant in aid school was made by taking into consideration the fact that the petitioner fulfills all the criteria to be appointed as Sikshan Sahayak. Vide affidavit dated 12.6.2022 filed by the respondent No.3 school through the President of Gujarat Adijati Uthan Parivar, Chitariya it is stated that the petitioner was appointed after following procedure and he is qualified and has also passed the TET examination. 7. Heard learned advocates for the respective parties and perused the documents available on record. The short issue involved in this petition is that the petitioner fulfills all the other criteria to be appointed as Sikshan Sahayak in higher secondary school, including passing of the TET examination and was appointed prior to circular dated 5.8.2010, the application of the petitioner for regularization pursuant to the policy framed by the Government vide resolution dated 24.10.2017 was rejected by the respondent authorities only on the ground of delay in submitting the application of the petitioner and on the ground that the petitioner does not possess the ‘staff profile’ nor was he possessing ‘staff profile’ at the time of his appointment. 7.1 As far as the first reason given for denying the benefit of regularization to the petitioner is concerned the same is on account of the fact that the petitioner’s application was received belatedly by the respondent authorities on 26.9.2018. The Education Tribunal vide order dated 5.9.2018 directed the petitioner to make application to the respondent through proper channel within a period of 15 days and it was for the school authorities, which is proper channel in case of the petitioner to forward it to the respondent Nos.1 and 2 authorities thereafter. The period of 15 days was to be counted from the date of the order i.e. 5.9.2018. The period of 15 days was to be counted from the date of the order i.e. 5.9.2018. In the instant case, the application of the petitioner forwarded by the school was received by the respondent Nos.1 and 2 authorities on 26.9.2018, which even if all the days from the date of the order i.e. 5.9.2018 are considered to be working days, then also was received by the respondent Nos.1 and 2 after about a week. It is pertinent to note that the aforesaid application was forwarded to respondent Nos.1 and 2 by the respondent No.3 school which received the application of the petitioner well in time as it is not the case of the respondent No.3 school that they received the application of the petitioner belatedly, and therefore, there was a delay in forwarding the same. 7.2 When the petitioner has acted in accordance with the order passed by the Education Tribunal dated 5.9.2018 and somehow it reached the respondent Nos.1 and 2 late, for that the petitioner cannot be faulted with and therefore the reason given by the respondent authorities for denying the benefit of regularization to the petitioner on the ground that the petitioner’s application was received by the respondent Nos.1 and 2 authorities belatedly cannot sustain, and therefore, the aforesaid order denying the benefit of regularization to the petitioner on the ground of delay in making the application is absolutely unjustified. 7.3 Now, the only question remains that whether the petitioner’s claim for regularization can be rejected by the respondent authorities on the ground that the petitioner does not possess ‘staff profile’, and therefore, the conditions of Government Resolution dated 24.10.2017 have remained unfulfilled. That question is required to be considered in light of the conditions prescribed by Government Resolution dated 24.10.2017. 7.4 I have considered the tenor of the Government Resolution dated 24.10.2017. It is true that the aforesaid Government Resolution specifically prescribes that the benefit of regularization can be given only to the teachers, who are serving in the non-grant-in-aid higher secondary schools and who are having ‘staff profile’ and have cleared TET examination. However, there is no clarity about ‘staff profile’. It is true that the aforesaid Government Resolution specifically prescribes that the benefit of regularization can be given only to the teachers, who are serving in the non-grant-in-aid higher secondary schools and who are having ‘staff profile’ and have cleared TET examination. However, there is no clarity about ‘staff profile’. The word ‘staff profile’ is neither defined anywhere nor any proforma of ‘staff profile’ is provided by the respondent authorities, and therefore, unless the candidate or the school, which was selected the candidate is made aware about what is ‘staff profile’ and in which proforma it is to be submitted, it cannot be said that what is forwarded by the respondent No.3 school cannot be considered as ‘staff profile’. If the authorities ask for specific requirement to be fulfilled, in that case it is incumbent upon the authority to define or explain either by way of definition or by way of providing proforma of the requirement that needs to be fulfilled by the candidate or by the school. In the instant case, despite repeated queries by this Court, respondent Nos.1 and 2 through the learned Assistant Government Pleader could not point out anything which would indicate that there was a clarity about what can be said to be ‘staff profile’. Though along with the affidavit reply proforma of checklist is produced by the respondent Nos.1 and 2. However, learned Assistant Government Pleader upon query from the Court was candid enough to submit that the aforesaid checklist was never circulated among the schools and candidates and they were never informed that only if the details of the candidate is filled up in the proforma annexed with the affidavit and cross verified by the school, then and then only that proforma can be considered to be ‘staff profile’. 7.5 When the word ‘staff profile’ is neither defined anywhere nor explained anywhere, it is not open for the respondent authorities to reject the claim of the petitioner on the ground that the petitioner does not possess ‘staff profile’ and hence does not fulfill the conditions of Government Resolution dated 24.10.2017. 7.5 When the word ‘staff profile’ is neither defined anywhere nor explained anywhere, it is not open for the respondent authorities to reject the claim of the petitioner on the ground that the petitioner does not possess ‘staff profile’ and hence does not fulfill the conditions of Government Resolution dated 24.10.2017. 7.6 In view of the above discussion, both the grounds on which the petitioner has been denied the benefit of regularization as per the policy of the Government Resolution dated 24.10.2017, are unsustainable and hence order dated 27.8.2020 whereby the petitioner’s application for regularization has been rejected, is required to be quashed and the same is hereby quashed to the extent it applies to the present petitioner only. The respondent authorities are hereby directed to consider the case of the petitioner for regularization in light of the aforesaid discussion and to regularize the services of the petitioner from the date on which case of other similarly situated persons was considered for regularization by the respondent authorities in compliance with the direction issued vide Government Resolution dated 24.10.2017 with all consequential and incidental benefits. 8. Accordingly, this petition is allowed. Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs.