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2024 DIGILAW 1896 (GUJ)

Thakor Amisha Chandrasinh v. State Of Gujarat

2024-10-11

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : 1. Heard Mr. P. M. Lakhani, the learned advocate appearing for the petitioners and Ms. Pooja Ashar, the learned AGP appearing for the respondent – State. 2. Brief facts leading to the filing of the present petition read thus :- 2.1 It is the case of the petitioners that at the time of appointment of the petitioners in the respondent No.4 school in the year 2009-2010 in higher secondary section, commerce stream, the classes of Std.11 & Std.12 were non-granted. In the year 2013 and 2014 the respondent – State converted the classes of the higher secondary section of respondent No.4 school into grantable classes. The said communication is duly produced at Annexure-C. 2.2 On 4.7.2016, the office of the respondent no.3 herein called for the details from the school about the teachers imparting/teaching in higher secondary section in non-grantable classes. The said list was prepared by the respondent authorities and posted on the website of the respondent no.3, the petitioners herein are included at Sr. No.81, 82 & 83. The said communication dated 4.7.2016 is duly produced at Annexure-F. 2.3 Though the petitioners’ name reflected at Sr.Nos.81, 82 & 83, the petitioners are not considered for appointment as a regular teacher in grantable classes with the respondent No.4 school on the ground that the staff profile of the petitioners is not approved by the respondent No.3. 2.4 Details of the petitioner No.1 :- The petitioner no.1 was appointed in the respondent No.4 school w.e.f. 14.6.2010 as a temporary Asst. Teacher who possessing qualification of M.A. B.Ed. in English. The petitioner has appeared in TAT (Teacher Aptitude Test) exam in the year 2011 and thereafter, since 2011 (20.7.2011) the petitioner herein came to be appointed as Sikshan Sahayak after following due procedure of law. The petitioner herein was appointed pursuant to an application which was made by her on 28.6.2011, pursuant to the advertisement which was issued by the respondent school in the "Sandesh" newspaper for the post of Sikshan Sahayak and pursuant to the said advertisement, the petitioner applied on 1.7.2011 and participated in the interview which was held on 18.7.2011. A copy of the advertisement dated 28.6.2011 is duly produced at Annexure-A. On 20.7.2011, the petitioner came to be appointed as a Sikshan Sahayak. A copy of the advertisement dated 28.6.2011 is duly produced at Annexure-A. On 20.7.2011, the petitioner came to be appointed as a Sikshan Sahayak. On July 2016, the petitioner herein has completed five years and therefore, she is eligible and is considered to be regular teacher in the respondent school. 2.5 Details of petitioner no.2. The petitioner no.2 was appointed in the respondent school w.e.f. 1.8.2009 as a temporary Asst. Teacher who possessing the qualification of M.Com B.Ed, (Accounts). The petitioner has appeared in TAT (Teacher Aptitude Test) in 2011 and thereafter, since 2011 (20.7.2011) the petitioner herein came to be appointed as Sikshan Sahayak after following due procedure of law. The petitioner herein was appointed pursuant to an application which was made by her. That on 28.6.2011, advertisement was issued in the "Sandesh" newspaper by the respondent school for the post of Sikshan Sahayak pursuant to the said advertisement. The petitioner applied on 1.7.2011 and participated in the interview which was held on 18.7.2011. On 20.7.2011, the petitioner came to be appointed as Sikshan Sahayak. On July 2016, the petitioner herein has completed five years and still she is working in school and therefore, is eligible and is considered to be regular teacher in the respondent school. 2.6 Details of petitioner no.3. The petitioner was appointed in the respondent school from 8.6.20009 as a temporary Asst. Teacher who possessing the qualification of M. Com, B,Ed, (Account/B.A). The petitioner has appeared in TAT (Teacher Aptitude Test) exam in 2011 and thereafter, since 2011 (20.7.2011) the petitioner herein came to be appointed as Sikshan Sahayak after following due procedure of law. The petitioner herein was appointed pursuant to an application which was made by him. That on 28.6.2011, advertisement was issued in "Sandesh" newspaper by the respondent school for the post of Sikshan Sahayak and pursuant to the said advertisement, the petitioner applied on 29.6.2011 and participated in the interview which was held on 18.7.2011. On 20.7.2011, the petitioner came to be appointed as a Sikshan Sahayak. On July 2016, the petitioner herein has completed five years and therefore, is eligible and is considered to be regular teacher in the respondent school. A copy of appointment orders of all the petitioners are duly produced at Annexure-B . 3. On 20.7.2011, the petitioner came to be appointed as a Sikshan Sahayak. On July 2016, the petitioner herein has completed five years and therefore, is eligible and is considered to be regular teacher in the respondent school. A copy of appointment orders of all the petitioners are duly produced at Annexure-B . 3. In light of the aforesaid, the petitioners herein are constrained to approach this Court invoking Article 226 of the Constitution of India and prayed for the following reliefs :- “(a) This Honourable Court may be pleased to issue an appropriate writ, order or direction, directing the respondent authorities to appoint the petitioners as a regular teacher in the respondent school in grantable classes in higher secondary section and further be pleased to direct the respondent authorities to consider the case of the petitioners who are listed at Sr. nos.81, 82 & 83 for being appointed as regular teacher in respondent no.4 school; (b) This Honourable Court may be pleased to issue an appropriate writ, order or direction, directing the respondent no.3 to approve the staff profile of the petitioners; (c) Pending the admission, hearing and final disposal of this petition, be pleased to stay the appointment/recruitment in the respondent no.4 school on the post of regular teacher in higher secondary section; (d) Pending the admission, hearing and final disposal of this petition, be pleased to direct the respondent no.3 to approve the staff profile of the petitioner; (e) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice.” 4. Mr. P. M. Lakhani, the learned advocate appearing for the petitioners submits that the petitioners herein satisfy all the conditions for appointment as regular teachers in grantable classes in respondent No.4 school. 4.1 It is submitted that the petitioners herein applied pursuant to the advertisement that was issued in the ‘Sandesh’ daily newspaper for the post of Sikshan Sahayak and pursuant to the said advertisement the petitioners came to be appointed as Sikshan Sahayak on 20.7.2011. It is submitted that in light of the aforesaid undisputed fact the petitioners herein were required to be included as regular teacher in the respondent No.4 School having complied with all the requirements and that the respondent No.3 be directed to approve the staff profile of the petitioners. It is submitted that in light of the aforesaid undisputed fact the petitioners herein were required to be included as regular teacher in the respondent No.4 School having complied with all the requirements and that the respondent No.3 be directed to approve the staff profile of the petitioners. 4.2 It is submitted that it is not in dispute that the petitioners have appeared in TAT (Teachers Aptitude Test) examination in the year 2011 and thereafter since 2011 i.e. 20.7.2011 came to be appointed as Sikshan Sahayak upon following due procedure of law. 4.3 Reliance is placed on the staff profile, communication issued by the respondent No.4 with respect to the petitioners’ service book maintained by the respondent No.4 School and the bank accounts of the petitioners wherein the petitioners are paid salary through bank since 2009 till 2014 and thereafter. The petitioners are paid salary through vouchers. 4.4 Reliance is placed on the order passed in the Special Civil Application No.12180 of 2013 dated 21.12.2021 wherein identically placed employees were before the Court and it was directed that the teachers who satisfies the conditions such as clearing TAT, have staff profile and outward number and are terminated without there being any interim order also cannot be discriminated. It is submitted that except the present petitioners all other candidates who figure in the said list which is duly produced at page-94 having cleared the TAT examination are included and appointed as regular teachers. 4.5 It is submitted that the prayers as prayed for in the present petition be allowed. 5. Ms. Pooja Ashar, the learned AGP appearing for the respondent – State relied upon affidavit-in-reply filed by the respondent authority as additional affidavit-in-reply which is duly produced at page-69. Placing reliance on the same, it was submitted that the petitioners herein are not eligible to be considered as regular teachers in absence of staff profile. 5.1 It is submitted that services of the petitioners came to be terminated in the year 2016 and in view thereof the petitioners were not serving the respondent No.4 School at the time when the Government Resolution dated 24.10.2017 came to be published. 5.2 It is submitted that three requisites of the said resolution are not complied with by the petitioners herein and, therefore, the case of the petitioners cannot be considered for the purpose of regular appointment. 6. 5.2 It is submitted that three requisites of the said resolution are not complied with by the petitioners herein and, therefore, the case of the petitioners cannot be considered for the purpose of regular appointment. 6. Having heard the learned advocates appearing for the respective parties, it is not in dispute that the petitioners herein came to be appointed in the respondent No.4 School on 20.7.2011 as Sikshan Sahayak upon issuance of advertisement in the ‘Sandesh’ newspaper for the post of Sikshan Sahayak and applied pursuant to the said advertisement on 1.7.2011. The petitioners herein participated in the interview which was held on 8.7.2011, the petitioners came to be appointed as Sikshan Sahayak on 2.7.2011. Upon completion of five years the petitioners’ services came to be regularised in the respondent No.4 School in the year 2016. 7. It is not in dispute that the petitioners herein have passed TAT examination in the year 2011. 8. The respondent No.4 School has also filed an affidavit-in-reply wherein it is stated that the respondent No.4 School is covered under the grant-in-aid code and the Government has decided to absorb the teachers who are working in the said school and whose appointments are made in accordance with law. On perusal of the documents on record it emerges that the appointments of the petitioners herein are in accordance with law and the salaries are also paid through the bank account. The respondent No.4 school was asked by the respondent No.2 to prepare a list of teachers working with the respondent No.4 school who can be absorbed and their salary may be held admissible for the purpose of grant. As the petitioners herein were appointed in accordance with law, the school management sent complete details as necessary and as demanded by the respondent No.3 with regard to the present petitioners and their names were published in the list prepared by the State Government wherein the name of the petitioners herein reflects at Serial No.81, 82 and 83. 9. The Gujarat Higher Secondary and Secondary Board issued Resolution on 5.8.2010 wherein it was required that the staff profile be approved which was relaxed and in fact after 5.8.2010 it is not required to get approval of staff profile from the District Education Officer of the concerned district. 10. 9. The Gujarat Higher Secondary and Secondary Board issued Resolution on 5.8.2010 wherein it was required that the staff profile be approved which was relaxed and in fact after 5.8.2010 it is not required to get approval of staff profile from the District Education Officer of the concerned district. 10. Inspite of the aforesaid on 11.6.2014 the respondent No.4 School Management forwarded a proposal for approving the staff profile of the petitioners herein, however the same is not taken into consideration by the respondent No.2. 11. Though after 5.8.2010, there is no requirement of approval of staff profile of the employees, that the respondent No.3 District Education Officer never disapproved the staff profile of the petitioners. As borne out from the reply of the respondent No.4 School, the petitioners herein satisfy the conditions pursuant to the instructions of the respondent No.2 – Commissioner of School, Higher Secondary School wherein the petitioners herein are possessing; (1) requisite qualifications (2) appointments are made in accordance with law (3) the petitioners herein have passed the TAT test and (4) the School Management is paying salary through the bank account. Each and every details of every petitioners also is duly stated in paragraphs-8 and 9 of the said reply. 12. Further the names of the petitioners herein figured in the list issued by the respondent – State at Sr. Nos.81 to 83, this Court also deems it fit to rely on the order passed in the Special Civil Application No.12180 of 2013 dated 21.12.2021 wherein the benefit of Government Resolution dated 24.10.2017 came to be extended to those teachers who were forming a part of the list which is duly produced at page-141. The list i.e. produced at page-125 which is annexed to the Government Resolution dated 24.10.2017 is duly produced at page-122 alongwith the rejoinder filed by the petitioners herein. 13. It is apposite to refer to the order dated 21.12.2021 passed in the Special Civil Application No.12180 of 2013, paragraphs 4 to 8 read thus (page-119) :- “4. I have heard learned advocates for the respective parties, and perused the conditions of the Resolution dated 24.10.2017, which was issued by the Education Department of the State of Gujarat, whereby and wherein total 178 teachers, who are similarly situated to the present petitioners are absorbed and regularised in service. The said conditions reads as under. I have heard learned advocates for the respective parties, and perused the conditions of the Resolution dated 24.10.2017, which was issued by the Education Department of the State of Gujarat, whereby and wherein total 178 teachers, who are similarly situated to the present petitioners are absorbed and regularised in service. The said conditions reads as under. (translated from original Gujarati) “(1) The fixed pay prescribed vide Education Department Resolution dated: 17/10/2017 mentioned at reference(4), shall be applicable to such teachers. Further, this regularized appointment shall be applicable to the employees under fixed pay subject to the prevailing provisions of Finance Department. (2) The benefits of pay difference for the previously rendered services or any other benefits regarding the services shall not be admissible to such teachers, and they can not raise any claim to get such benefits. The concerned District Education Officer shall have to obtain consent and undertaking in this regard. (3) On account of regularizing the services of such teachers, the concerned schools can not claim any kind of additional grant for the previously rendered services by such teachers. (4) Such regularized appointments shall be subject to the final judgment of the subjudice case of Hon’ble High Court filed by some of the teachers mentioned in the Annexure-2 appended with this Resolution.” 5. It is not disputed by the State Authority that all the petitioners are possessing TAT certificate and also having staff profile along with outward number. The petitioners (i) Jitendrakumar Balubhai Patel was appointed on 19.07.2006. He has cleared his TAT examination and staff profile was allotted on 22.09.2006 and he is continued in the same school as Adhoc Sanskrit Teacher, (ii) Gayatriben Jamubhai Patel, was appointed on 23.06.2005. She has cleared her TAT examination and staff profile was allotted on 28.09.2006 and by the interim order dated 01.08.2013 she was protected against her termination, however she was terminated on 24.10.2017, (iii) Anilaben Jagdishbhai Patel, was appointed on 23.06.2005. She has cleared her TAT examination and staff profile was allotted on 28.09.2006 and by the interim order dated 01.08.2013 she was protected against her termination, however she was terminated on 24.10.2017. All these aforesaid facts are undisputed. 6. It appears that despite the interim order passed by this Court, the petitioners were terminated and as a sequel thereof, their names are not included in the Resolution dated 24.10.2017. All these aforesaid facts are undisputed. 6. It appears that despite the interim order passed by this Court, the petitioners were terminated and as a sequel thereof, their names are not included in the Resolution dated 24.10.2017. Thus, the action of the respondent authorities terminating the service of the petitioners is illegal and contrary to the interim orders passed by this Court and hence, their names could not have been excluded from the list of the candidates annexed to the Resolution dated 24.10.2017. The State authorities are directed to pass similar order / resolution, as passed in favour of 178 candidates. Since they cannot be discriminated merely because they were terminated despite interim protection of this Court. Even if such teachers who satisfy all the conditions such as clearing of the TAT, having staff profile and outward number, and are terminated without there being any interim orders cannot be discriminated. Such teachers may not be fortunate to obtain interim orders, but such factor cannot be weighed against them. If the State Government has decided to confer benefits to the teachers who fulfill the aforesaid conditions, such benefits are required to be extended to such teachers. 7. Necessary orders shall be passed as passed in terms of the Resolution dated 24.10.2017 in favour of petitioners extending the benefit of absorption / regularization. Such orders shall be passed within a period of two months from the date of receipt of copy of the order of this Court. 8. With the above directions and observations, this writ petition is disposed of. Rule is made absolute to the aforesaid extent.” 14. In facts of the present case, as referred above, which are undisputed and the position of law, as referred above, this is a fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution of India whereby the petitioners herein have cleared the TAT examination in the year 2011, the staff profile of the petitioners having been approved by the District Education Officer with an outward number duly produced at page-94 wherein the petitioners figure at Sr. Nos.25, 26 and 27 (page-96) which form a part of reply filed by the respondent No.3 herein. The said staff profile has never been objected and the details of the same are forwarded by the respondent No.4 School. Nos.25, 26 and 27 (page-96) which form a part of reply filed by the respondent No.3 herein. The said staff profile has never been objected and the details of the same are forwarded by the respondent No.4 School. Further the petitioners herein are included at Sr Nos.82 to 84 in the list updated by the respondent authorities on the website. The petitioners herein are identically placed with the petitioners of the Special Civil Application No.12180 of 2013. Further the petitioners herein are also included at Sr. Nos.81 to 83 of the Government Resolution dated 24.10.2017 duly updated on the website. In line with the order, as referred above, the order passed in the Special Civil Application No.12180 of 2013 dated 21.12.2021, the petitioners herein in the opinion of this Court cannot be deprived of the appointment as regular teacher in the respondent No.4 School in grantable classes in higher secondary section. 15. In view of the aforesaid, the prayers as prayed for in the present petition are required to be allowed in terms of para-7 of the petition. The petitioners herein are entitled to all consequential benefits arising out of the order passed in the present petition. The aforesaid exercise be undertaken within a period of eight weeks from the receipt of this order. 16. The present petition stands allowed accordingly. Rule is made absolute.