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2024 DIGILAW 804 (GUJ)

State Of Gujarat v. Ilaben Natvarlal Dave

2024-04-08

BIREN VAISHNAV, PRANAV TRIVEDI

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JUDGMENT : (Biren Vaishnav, J.) 1. Heard Ms.Shruti Dhruve learned AGP for the State and Ms.Mamta Vyas learned advocate for respondent no.1. 2. Challenge in this appeal is to the order of the learned Single Judge dated 11.10.2019. 3. It is the contention of the learned AGP that the impugned order before the learned Single Judge rejecting the request of granting voluntary retirement to the respondent herein was just and proper. It is her case that having joined in the year 1988, at the time when the respondent applied for the voluntary retirement, she had not completed 20 years of service. She would take us to the affidavit in reply at page 68 and read para 7 thereof to indicate that though on being declared as surplus, she was directed to be posted at C.M.Vidhyalaya, Bhalusana, Mehsana, she moved an application and obtained an order of stay. Even in the year 2000, when directed to report at Shri A.M.Pancholi Sarvajanik High School, Tejgadh in Vadodara, a Special Civil Application was filed wherein, the interim relief was obtained. 4. She would therefore submit that having obtained the protection of surplus when directions were issued from time to time asking her to report for duty at the places and the schools, she did not do so and earned the salary as a surplus teacher while sitting at home. Therefore, she did not complete the requisite 20 years of service to gain voluntary retirement. She would further contend that the original petitioner has completed only 18 years 6 months and 20 days of service and as per Rule 48 of GCSR 2002, 20 years of qualifying services are required and pursuant to the order passed in Special Civil Application No.4833 of 2000, the DEO posted the original petitioner at Government Girls High School, Ahmedabad, on 23.07.2002. 5. Ms.Mamta Vyas would contend otherwise. 6. The chronology of dates would indicate as under: Date Events 01/08/88 Petitioner was appointed as Asst. Teacher in the vocational stream of higher secondary in Janta Hindi Madhyamik Vidyalay Ahmedabad. 21/11/95 Due to closure of classes Petitioner was declared surplus. Since the petitioner was not absorbed in any other school, she was attending her duty at parent school. July 98 In July 1998, an order was passed by resp.no.3, the petitioner was directed to report at C.N.Vidyalay at BHALUSANA in Mehasana Dist. 21/11/95 Due to closure of classes Petitioner was declared surplus. Since the petitioner was not absorbed in any other school, she was attending her duty at parent school. July 98 In July 1998, an order was passed by resp.no.3, the petitioner was directed to report at C.N.Vidyalay at BHALUSANA in Mehasana Dist. Since petitioner is a teacher of Economics of HSC, Petitioner was asked to report at C.N.Vidyalaya and she was ordered to worked in Secondary school in the subject of History which is not her subject. Therefore petitioner filed an application no. 322/98 before GUJ.Higher Secondary Education Tribunal. Interim relief was granted the petitioner was ordered to report at Janta Vidyalaya. 1/5/2000 Petitioner received the letter through Resp. NO.3 dated 01/05/2000, that the petitioner has been posted at Vadodara at Shri A.N.Pancholi Sarvajanik High school Tejgarh in Vadodara Dist. 10/05/00 Petitioner filed SCA 4833/2000 wherein ad-interim relief in terms of para-12(D) was granted. 17/10/00 The Hon'ble court allowed the petition with the direction to respondents to decide the claim of petitioner for a posting in any school either in the Ahmedabad Rural within a period of one month till then the 10/05/00. Thereafter the petitioner requested to resp. authorities to pass necessary etitioner order of Hon'ble high court from 2007 orders as per to requested to release to increment which was due from 2001 onwards. 23/07/02 In the meantime, the D.E.O by letter dated 23/07/02 High school at Raikhad wherein she has in then the muster roll only. Petitioner resumed the duty in the said school but she was one allotted the work and only signature was allowed. 25/03/03 Since the petitioner has to sit idoly, the petitioner addressed to DEO the letter dated 25/3/03 pointed out that because of inaction on the part of the DEO for not passing the posting orders, the petitioner was compelled to take VRS Sept. 2004 Petitioner was paid salary upto 2004 but not granted any increments, not extended the benefit of 5th pay commission. Therefore the petitioner wrote a letter to DEO Oct. 2004 Salary of the Petitioner was stopped without any reason and without any hearing and also petitioner was not allowed to discharge his duty in Govt. School. In one hand the petitioner was not allowed to continue and nor VRS was sanctioned not her salary was paid therefore the petitioner had written various letters. 2004 Salary of the Petitioner was stopped without any reason and without any hearing and also petitioner was not allowed to discharge his duty in Govt. School. In one hand the petitioner was not allowed to continue and nor VRS was sanctioned not her salary was paid therefore the petitioner had written various letters. 06/03/07 Petitioner filed SCA 6115/07 with various requests and requested to passed order for absorption in any school as per order of the Hon'ble high court and also requested to extending the benefit of 5th pay commission, increments, higher grade, GPF. The Hon'ble court by an order dated 06/03/07 directed the DEO to decide the same within one month. 03/06/07 DEO by order dated 03/06/07, ordered that since the petitioner is not qualified for taking VRS, she has to take resignation and only after submitting resignation she will be entitled to withdraw GPF amount. It is pertinent to note that when the hearing was taken place on 30/04/07, the papers were not there with the ADI and clerk and thereby there is no hearing at all and therefore she has objected to this by letter dated 02/05/07 and 16/05/07. 28/12/17 Petitioner has filed present SCA 16902/07 wherein by interim order dated 28/02/2017 a detailed order was passed to decide the issue a fresh and place the same before the Hon'ble Court. 03-04/05/17 Without proper adjudication, DEO once again passed the same order but not clarified as to why she is not absorbed anywhere else. Petitioner by way of draft amendment challenged the aforesaid order also. 7. Apparently, if the chronology of dates are seen, by virtue of the interim orders either in the application before the Tribunal and/or of this Court, she continued to serve with the school and even as observed by the learned Single Judge, despite the directions given in Special Civil Application No.4833 of 2000, while disposing of the petition, there was no compliance of the directions given by this Court. 8. 8. For the benefit of the judgement, the order dated 17.10.2000 passed in Special Civil Application No.4833 of 2000 reads as under: “Having heard the learned counsel for the petitioner and learned A.G.P. and keeping in view the reply to the special civil application, prima-facie what the petitioner contends that at four schools in Ahmedabad, vacancies of Economics teacher are available and junior has been posted at Chandlodiya school prima-facie seems to be correct. 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 date of receipt of Writ of 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 stand disposed of accordingly with no order as to costs.” 9. With these factual details as appreciated in juxtaposition to the reasoning given by the learned Single Judge in paras 18 and 19, the same read as under: “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. 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.” 10. In view of the above, we do not find any merit in the appeal and the same is therefore dismissed. 11. In view of the disposal of the main appeal, Civil Application for stay will also not survive and hence, the same is also disposed of.