JUDGMENT
P.B. Majmudar, J.
1. Rule. Mr.Munshaw and Mr.Joshi waive service of
rule for the respective respondents.
With the consent of the parties, the matter is
taken up for final hearing today.
2. The petitioner was selected as a primary teacher
on 8.10.1992 in Ikbalgadh Ashram Shala. The State
Government had passed a resolution dated 23rd August,
1973, consequent on the representation to Government that
teachers appointed in Ashram Schools run by voluntary
agencies have no security of service, as a result of
which they leave the institutions as soon as they secure
better employment, on account of which the work in Ashram
Schools suffer. It was, therefore, decided by the said
Resolution that such teachers employed in the Ashram
Schools and who possess the prescribed qualifications and
experience for appointment as primary teachers of the
District Education Committees under the Panchayats and
who are within the prescribed age limit on the day of
their recruitment in the service of Ashram Schools were
allowed to have their lien in the services of the
respective District Education Committees under the
Panchayats and the services of such teachers are counted
in the services of the District Education Committees from
the date of selection by the Staff Selection Committee of
the respective District Panchayats. The said G.R. is at
Annexure `A’. It is also provided in the said G.R. that
those of the teachers who will be selected by the
District Education Committee for absorption in their
services will normally continue in the Ashram Schools and
will not be allowed to join the schools of the District
Education Committees unless either the Ashram Schools are
closed or they have put in at least five years’ services
in the Ashram Schools. Therefore, as per the said G.R.,
even if a teacher is selected for appointment in the
schools of the District Education Committees unless he
completes five years’ service in such Ashram Schools,
where he was serving, he will not be able to join the
services of the District Education Committees. In other
words, he will have to complete five years’ service in
the Ashram Schools and after completing such five years’
service, such teacher was found eligible to be appointed,
provided he is selected by the District Education
Committee for appointment in their schools, in which case
the teacher will be entitled to have lien for the
services which he had rendered in the Ashram Schools.
3. The respondent No.2 school also passed a
Resolution, which is at Annexure `B’, page 18, by which
the said school decided to give benefit of lien to those
who are serving in their Ashram Shalas. The respondent
No.2-School also gave no objection by their letter dated
25.6.1998 in the matter of giving benefit of lien in case
the petitioner is absorbed as a teacher under the
District Education Committee. On the basis of the
advertisement which was published in newspaper on 25th
June, 1998, which is annexed at page 22, the petitioner
applied for appointment under the District Education
Committee. It is required to be noted that so far as
selection procedure is concerned, the said selection is
purely on objective criterion, and on the basis of the
marks obtained by the candidate in the S.S.C. and
P.T.C., the merit list is prepared and there is no
further scope of any written examination or even for oral
examination except to verify the genuine mark-sheets from
such candidates, who are placed on the merit list by
virtue of the marks they obtained in the S.S.C. and
P.T.C. examinations and also in order to find out
whether they are physically fit or not. The basis for
calling such candidates for personal interview is also
mentioned under the Rules, known as “Recruitment /
Selection Rules of Vidya Sahayaks”. The aforesaid Rules
are produced at page 69 by the petitioner with his
affidavit-in-rejoinder, wherein it is clearly mentioned
at page 71 that the reason for calling candidates for
personal interview is only to find out whether he is
physically fit or not and, therefore, as stated earlier,
on the basis of the marks obtained in the examinations,
merit list of those candidates, who are found eligible
for appointment, is prepared, subject to further
verification regarding their physique, etc., in the oral
interview. On the basis of the marks obtained by the
petitioner in his S.S.C. and P.T.C. examinations, his
name was included in the merit list and the petitioner
thereafter appeared in the personal interview also on
13.9.1998 and, therafter, he was expecting his
appointment order. In the meanwhile, the petitioner has
also sent all necessary papers of lien etc., to the
Department. Thereafter, by an order dated 22nd January,
1999, which is at Annexure `D’, the District Primary
Education Officer has passed an order of granting lien to
six teachers, which includes the name of the petitioner
also at serial No.6. The aforesaid order, therefore,
clearly shows that the petitioner was selected by the
District Primary Education Officer and benefit of lien
was also given to him by the aforesaid letter. The only
thing which was required to be done further was giving
him posting orders on the basis of his selection.
Therafter, by an order dated 22.9.2000, the Director of
Primary Education, Gujarat State, Gandhinagar informed
the District Primary Education Officer that out of the
six teachers, on whose behalf the proposal was sent, the
lien can be given to two persons, one Rajput Bhurabhai
Pirabhai, and the present petitioner. Accordingly, the
Director had approved the proposal of the District
Primary Education Officer for giving lien so far as the
present petitioner as well as Rajput Bhurabhai Pirabhai
are concerned. On the basis of the said order, the
petitioner was awaiting his posting order. However, it
seems that for a considerable time, no posting order was
given to him by the District Primary Education Officer.
The petitioner also made some representations in this
connection from time to time. In the meanwhile, fresh
advertisement was published in the newspaper, which is
produced at Annexure `G’ page 39 in the compilation. The
petitioner, therefore, again applied for such appointment
on the basis of the said advertisement dated 8.8.2000 as
he was apprehending that he may not be given the
appointment order on the basis of his earlier selection.
The petitioner was again selected and he was given
appointment order dated 17th January, 2001 produced at
page 44. It is required to be noted that so far as the
said appointment is concerned, it is based on the
application of the petitioner as a direct recruit and not
as an employee of a particular Ashram Shala. The
petitioner, however, subsequently informed the Department
that he is accepting the appointment order without
prejudice to his rights and contentions. However, as per
the averments in the petition at page 7 of the petition,
the petitioner has accepted the aforesaid appointment
order dated 17th January, 2001 without prejudice to any
of his rights, claims and contentions for such absorption
in view of the lien granted to him on the basis of his
service rendered in the Ashram School of respondent No.2.
Accordingly, the petitioner has accepted the said
appointment order dated 17.1.2001 and he has joined the
service as Vidhya Sahayak.
4. The grievance of the petitioner, however, in this
petition is that the District Primary Education Officer
has not given the benefit regarding his services which he
has put in as a Vidhya Sahayak in the Ashram School of
respondent No.2. Since the said benefit was not given,
he challenged the same by filing the present Special
Civil Application.
5. The petitioner has prayed in the petition that he
should be given the benefit of Lien on the same lines on
which one Mr.Rajput Bhurabhai Pirabhai was granted the
same and the said Mr.Rajput Bhurabhai Pirabhai was
granted the benefit of lien with effect from 16.10.2000.
For the said claim, the petitioner has placed strong
reliance on the letter of the Director of Primary
Education dated 22.9.2000, which is addressed to the
District Primary Education Officer, wherein he has
approved the benefit of lien in favour of the said
Mr.Rajput Bhurabhai Pirabhai and the present petitioner.
At the time of hearing of this Special Civil application,
it was argued by Mr.Pujara, learned Advocate for the
petitioner, that as per the Resolution dated 23rd August,
1973, a teacher is entitled to the benefit of Lien from
the date of selection by the Staff Selection Committee of
the respective District Panchayats. It is not in dispute
that so far as the Ashram School of respondent No.2 is
concerned, staff of the said Ashram School are eligible
for the benefit of lien as per the G.R. dated 23rd
August, 1973. It is the say of the petitioner that he
having been selected at the relevant time, he was
entitled to the lien as per the said Circular. It is
stated that without any valid reason, he was not given
the appointment order and, therefore, ultimately, he
applied again when new advertisement appeared in the
newspaper. It is the say of the petitioner that the
action of the District Education Committee in not giving
absorption to the petitioner as per the G.R. dated 23rd
August, 1973 is illegal, arbitrary and discriminatory and
there was no reason to discriminate the case of the
petitioner from Mr.Rajput Bhurabhai Pirabhai.
6. On behalf of the District Education Committee,
affidavit-in-reply has been filed by one Mr.Gameti, who
is a District Education Officer of the District
Panchayat. It is stated in paragraph 6 of the said reply
that pursuant to the preparation of the merit list, the
petitioner, along with other meritorious candidates were
called for interview with the original mark-sheets and
certificates and therafter, a select list and waiting
list were prepared. It is further stated that the
petitioner was placed in the waiting list as he could not
be placed in the select list, wherein candidates who have
secured 71.58 points and above were placed. It is
further stated that the said select list was operated and
the appointments were made from the select list and the
last candidate appointed had secured 71.58 points and
that the waiting list was prepared to the extent of 20%
of the posts advertised and, therefore, the petitioner
was kept in the waiting list. In view of the aforesaid
affidavit-in-reply, it was argued by Mr.Munshaw that
since the petitioner was in the waiting list and since he
was not given any substantive appointment order, the
benefit of the aforesaid G.R. dated 23rd August, 1973 is
not available to him. Mr.Munshaw further submitted that,
subsequently, when the petitioner appeared in the fresh
selection process and was ultimately selected, the
aforesaid Scheme of the Resolution of 1973 was already
scrapped and the Scheme of giving benefit of lien was not
available and, therefore, according to him, the
petitioner was not entitled to the said benefit. He
further submitted that by Resolution dated 8.12.1999, the
Resolution of 23rd August, 1973 is scrapped. The said
Resolution is at page 60, Annexure `IV’. In paragraph 3
of the said Resolution, it is clearly mentioned that
whatever decisions taken prior to the date of this
Resolution will not be affected. In that view of the
matter, the only question which is required to be
considered is whether the petitioner is entitled to the
benefit of the 1973 Resolution or not. Reading the said
Resolution, it is clear that if a teacher is selected by
virtue of such selection by the Selection Committee, he
is straightaway entitled to the benefit of lien as
mentioned in the said Resolution. The relevant part of
the Resolution is required to be repeated again :-
“Those of the teachers who will be
selected by the District Education
Committees for absorption in their service
will normally continue in the Ashram
Schools and will not be allowed to join the
schools of the District Education
Committees unless either the Ashram Schools
are closed or they have put in at least
five year services in the Ashram Schools.
By virtue of the said Resolution, even if a
teacher is selected for appointment by the District
Education Committee, he will not be allowed to join the
schools of the District Education Committee unless he has
put in at least five years’ service in the Ashram
Schools. It is, therefore, clear that what is required
to be seen is the selection of such teacher. The said
G.R. nowhere provides that such benefit can be given on
the basis of posting orders or actual appointments and it
deals with only selection and nothing more. Mr.Munshaw,
however, argued that since the petitioner was not
appointed on the basis of his selection so far as the
earlier selection process is concerned, he was not
entitled to the lien. He also submitted that so far as
Rajput Bhurabhai Pirabhai is concerned, he was not only
selected, but was also given appointment order and,
therefore, he was given the benefit of lien in view of
the aforesaid G.R. of 1973. In my view, it is not
possible to accept the say of Mr.Munshaw and it is
difficult to distinguish the cases of these two persons,
viz. the petitioner and Rajput Bhurabhai Pirabhai. It
is not in dispute that the petitioner was selected and,
may be, at the relevant time, he was kept in the waiting
list, but what is required to be seen is selection and
not appointment. Therefore, even if a teacher is
appointed by a Committee, and he is serving in the Ashram
School, he may not be able to get the appointment in the
School of the District Education Committee till he
completes the five years’ service, but still, he can be
said to have been selected and such teacher is entitled
to the benefit of the G.R. of 1973. Under these
circumstances, there was no reason to deny the benefit of
the G.R. of 1973 to the petitioner simply on the ground
that even though he was selected, actual posting order
was not given and, therefore, since he was not appointed,
he was not entitled to the said benefit. Reading the
G.R., no other view is possible and it is clear that on
the basis of his selection, such teacher is entitled to
get the benefit of lien. It is not in dispute that the
petitioner was selected on the basis of his interview of
13th September, 1998, which was followed by order dated
22.1.1999 passed by the District Primary Education
Officer and subsequent order of the Director of Primary
Education dated 22.1.2000, by which the benefit of lien
was given to the petitioner as well as to Rajput
Bhurabhai Pirabhai. In view of what is stated above, the
petitioner was entitled to have benefit of lien on the
basis of his selection and the said benefit was not
dependent upon the appointment order of the petitioner on
the said post. The District Primary Education Officer
has failed to consider the G.R. of 1973 in its proper
perspective and on wrong interpretation, the petitioner
was denied his just claim of lien. In fact, there was no
reason to discriminate the petitioner and he was entitled
to the same benefit and treatment which was given to
Mr.Rajput Bhurabhai Pirabhai. It is not in dispute that
the said Rajput Bhurabhai Pirabhai was already given the
benefit of lien by the Department.
7. In view of what is stated above, it is not
possible to accept the say of the learned Advocate for
the District Primary Education Officer that unless actual
appointment order is given, the benefit of lien cannot be
given. The said argument is dehors the Resolution dated
23rd August, 1973. It is no doubt true that the
petitioner himself subsequently appeared in the
interview. However, the subsequent appointment was
accepted by the petitioner without prejudice to any of
his rights, claims and contentions to get the benefit of
lien in view of his earlier selection. Mr.Munshaw has
fairly stated that the petitioner was selected on the
basis of the first advertisement. However, since he was
kept in the waiting list, he was not given the benefit of
the G.R. However, as stated above, in the said G.R. of
1973, nowhere it is stated that the benefit should be
given only on appointment. In that view of the matter,
in my view, without any justifiable reason and on wrong
interpretation of the Resolution, the petitioner was
denied the benefit at the relevant time.
8. In view of what is stated above, the petition is
required to be allowed and it is accordingly allowed. It
is clear that the petitioner is entitled to the benefit
of lien on the basis of his selection and the District
Primary Education Officer is directed to give the same
benefit of lien as per the G.R. of 1973 as has been
given to Mr.Rajput Bhurabhai Pirabhai. Necessary orders
in this behalf may be passed within a period of two
months from today.
The petition is accordingly allowed. Rule is
made absolute.
It will be open for the petitioner to take direct
service of this order in order to see that the Department
expedites the proceedings.