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SCA/6198/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6198 of 2011
=========================================================
CHANDRAKANT
GAJANANDRAO JALNAPURKAR - Petitioner(s)
Versus
STATE
OF GUJARAT - THROUGH SECRETARY & 3 - Respondent(s)
=========================================================
Appearance
:
PARTY-IN-PERSON
for
Petitioner(s) : 1,
MR MAULIK NANAVATI AGP for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) : 1 - 3.
MR MUKUND M DESAI
for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/07/2011
ORAL
ORDER
1. Heard
party-in-person Shri Chandrakant Gajnandrao Jalnapurkar, who is
personally present before this Court and learned AGP Mr.Maulik
Nanavati for respondent No.1 and learned advocate Mr.M.M.Desai for
respondent No.4.
2. The
prayers made in Para.8(a) and (b) is quoted as under:
“8(a)
Your Lordship may be pleased to admit and allow this petition and be
further pleased to issue writ of mandamus and/or any other
appropriate writ, order or direction in the nature of mandamus and be
pleased to direct the respondent No.2 the services of the petitioners
considered as a protected teacher and grant the pensionary benefit of
petitioner. And further be pleased to direct the State Government of
allow the pensionary benefit of the petitioner.
(b) Your
Lordship may be pleased to set aside the order of Director of primary
education on 29th June,2010.”
3. Party-in-person
has pointed out before this Court that in identical and similar facts
and circumstances of the case, similarly situated employee, in whose
favour this Court has passed an order in SCA No.5242 of 1992 dated
12.8.1992. The order dated 12.8.1992 passed in SCA No.5242 of 1992 is
quoted as under :
” The
petitioner has challenged the order dated 29.11.1991 passed by the
Primary Education Tribunal in application No.40 of 1990 by which it
is declared that the action of the petitioner school in not
considering the respondent Nanjibhai Tejabhai Solanki as full time
untrained assistant teacher is unjust, arbitrary and illegal. The
Tribunal has directed the petitioner school to treat the respondent
Nanjibhai Solanki as full time untrained assistant teacher from
15.6.1964 to fix his salary taking into consideration the pay and
other allowances according to the Rules with effect from 22.5.1986 to
pay the difference thereof after deducting the payment already made
to him within three months from date of said order, to consider his
pay in the pay scale of Rs.950-1400/-, to pay his salary with all
other allowances payable on 10th of every calendar month
and to make necessary entries in the service book of the respondent
teacher.
2. Against
the said order, a review application being Review Application No.2 of
1992 was filed. However, the Tribunal has rejected the same on
24.3.1992 on the ground that there is no error of law.
3. In
this matter, Mr.H.M.Desai, learned advocate for the petitioner,
states that the entire order passed by the tribunal is illegal
inasmuch as there is no provision for making part time teacher as
full time teacher. It may be stated that in fact,t he practice of
appointing part time teacher was not proper and legal and therefore,
the Director of Education, Gandhinagar had issued a circular dated
22.1.1964 (Annexure-C) to all the Director Primary Education
Officers for giving necessary instructions to all the school
managements having part time teachers to treat them as full time
teacher. In view of the said circular, respondent – teacher
should have been treated as a full time teacher and would have been
paid salary and other allowances as such. In fact, the action of the
petitioner school in keeping the respondent No.1 teacher as part time
teacher itself is not proper and he should have been appointed as
full time teacher from the beginning.
4. In
that view of the matter, the order passed by the Tribunal is in no
way erroneous. I therefore do not find any substance in the petition.
Hence, it is rejected.
4. In
view of aforesaid observations made by this Court in case of
similarly situated person, let petitioner may make detailed
representation to the Director of Primary Education, Gandhinagar,
within a period of one month from date of receiving copy of present
order.
5. As
and when the Director of Primary Education, Gandhinagar receives
such representation from petitioner, it is directed to the Director
of Primary Education, Gandhinagar to consider representation of
petitioner in light of observations made in order dated 12.8.1992
passed in SCA No.5242 of 1992 and examine case of petitioner on
similar basis and then, to pass appropriate reasoned order, without
being influenced by order dated 29.6.2010 (Annxure-J, Page-45).
6. It
is made clear that the Director of Primary Education, Gandhinagar
should have to decide independently irrespective of earlier decision
dated 29.6.2010 and consider strictly the decision which has been
given by this Court, as referred above and also the case of
petitioner sympathetically and then, to pass appropriate reasoned
order, within a period of 3 months from date of receiving copy of
representation from petitioner and communicate the decision to
petitioner immediately.
7. In
view of aforesaid observations and directions, present petition is
disposed of without expressing any opinion on merits. Direct service
is permitted.
[
H.K.RATHOD, J. ]
(vipul)
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