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SCA/9927/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9927 of 2008
=========================================================
MINABEN
SUMANTRAI DESAI - Petitioner(s)
Versus
COMMISSIONER
& 2 - Respondent(s)
=========================================================
Appearance
:
MR
DHAVAL D VYAS for
Petitioner(s) : 1,
MR OZA, AGP for Respondent(s) : 1 - 2.
None
for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 09/09/2008
ORAL
ORDER
The
petitioner by this petition has prayed for the relief to direct
respondent Nos. 1 and 2 to initiate action against the respondent
No. 3 including stoppage of grant for non compliance to the
directions issued by the authority for taking back the petitioner in
service, since approval was not granted. It is also prayed by the
petitioner to direct respondent Nos. 1 and 2 to pass appropriate
orders for releasing outstanding dues of the petitioner for the
period during which, she remained out of service on account of the
alleged order of dismissal for which the approval is not granted. It
is also prayed by the petitioner to direct respondent Nos. 1 and 2
to take appropriate action so that she can discharge her duty in
safe atmosphere in the school.
Heard
Mr. Vyas learned Counsel for the petitioner, Mr. Oza learned AGP for
the respondent Nos. 1 and 2 and Mr. Pancholi learned Counsel has
appeared on behalf of the respondent No. 3.
It
appears that pursuant to the interim order passed by this Court in
the present proceedings, directions were given to the District
Educational Officer to remain present, and thereafter, he was also
directed to take effective steps as ordered by this Court for the
payment of the salary, and allowing her to resume duty.
Today,
when the matter is taken up for further hearing, Mr. Vyas learned
Counsel for the petitioner states that the petitioner has been
permitted to resume duty and she is working as the Asst. Teacher
with the respondent No. 3 school. However, he states that backwages
for the period, during which she was not on duty on account of the
alleged order of dismissal for which the approval was not granted,
the same is not paid to the petitioner and therefore, this Court may
not consider the matter only for such purpose. It was also submitted
that since two times assault have been made upon the petitioner,
this Court may direct respondent authority to ensure that the
petitioner, is in a position to discharge her duty in a safe
atmosphere.
Mr.
Oza learned AGP upon the instructions of Mr. B.V. Chaudhary, Asst.
Education Inspector, declared before the Court that DEO has already
prepared bill for the backwages and the amount will be paid as and
when the same is sanctioned by the Treasury. He submitted that
thereafter, the said amount shall be deducted from the grant payable
to the respondent No. 3 School.
On
behalf of the respondent No. 3, Mr. Pancholi learned Counsel
submitted that as such, as on today there is no prohibitory order of
any competent forum known to law, restraining the petitioner to
discharge duty as the teacher nor there is any prohibitory order
against backwages payable to her during the period of dismissal.
However, he submitted that respondent No. 3 is contemplating to file
the petition challenging the action of granting non-approval by the
Commissioner Mid-day Meals and Schools on the ground that he did not
exercise power within stipulated time limit and therefore, it was
the case of deemed approval. He did admit that there is delay of
about three years in filing petition, but the respondent No. 3 shall
explain such delay and shall pursue proceedings appropriately. It
was therefore, submitted that even if this Court is inclined to pass
appropriate order in the present petition, the right of the
respondent No. 3 in the event succeeds in the said petition may not
be prejudiced.
It
appears that as on today in absence of any prohibitory order of any
competent forum against the petitioner for reinstatement in service
or to discharge the duty, it will be required for the respondent No.
3 to permit her to discharge the duty on the post of Asst. Teacher,
which in any case is permitted and as recorded hereinabove, the
petitioner is functioning as the Asst. Teacher in the respondent No.
3 school. Therefore, no further orders are required to be passed in
this regard except recording that the petitioner is permitted to
resume duty in the respondent No. 3 school, the same will be allowed
to continue unless there is any prohibitory order of any competent
forum known to law.
So
far as the backwages for period during which the petitioner remained
out of service on account of the alleged order of dismissal, and the
approval not granted, is concerned, as declared by learned AGP bill
is already prepared and the payment therefore, would be made after
sanction from the treasury.
As a consequence thereof the petitioner would get backwages for the
said period, and hence the same would take care of the grievance
raised by the petitioner for the payment of the backwages. However,
as respondent No. 3 is contemplating to challenge the said order, in
the event the amount is already utilised by the petitioner fully,
the question of refund may arise. Therefore, the petitioner if
retains 50 percent of the amount for a reasonable time, no serious
prejudice will be caused. In the meantime respondent No. 3 may
pursue proceedings on the basis of the right as available in law,
and if any prohibitory order is passed, the same would also hold
field and in absence thereof the petitioner may be at the liberty to
utilise money of the remaining amount also.
Hence,
it is observed that payment shall be made of the backwages as per
the bill prepared by the DEO and may also be credited in the account
of the petitioner, however, the petitioner shall retain 50 percent
of the amount for the period of 15 days from the credit of the
amount in her account. It is also clarified that in the event any
prohibitory order is passed by any competent forum known to law, the
petitioner shall use amount accordingly, but in absence thereof or
if no order is communicated to the petitioner during the period of
15 days, the petitioner shall be at the liberty to utilise the
amount, in accordance with law.
Since
the petitioner is a lady teacher, it would be required for the
Management namely respondent No. 3 to ensure that she is in a
position to discharge the duty in safe atmosphere and upon the
failure by respondent No. 3, it would be required for the respondent
No. 2 DEO or in any case Commissioner respondent No. 1 herein, to
ensure that the lady teacher is in a position to discharge the duty
in safe atmosphere and there is no harassment by other staff member.
If any complaint is made by the petitioner to respondent Nos. 1 or 2
in this regard, respondent No. 2 shall be at the liberty to pass
appropriate orders in accordance with law, after giving opportunity
of hearing to the concerned parties.
The
petition is disposed accordingly. It is clarified that the present
order shall not operate as a bar to the respondent No. 3 in pursuing
proceedings against the approval not granted by the Commissioner
Mid-day Meals School. If such challcenge is brought before the
appropriate forum including this Court, the rights and contentions
of both the sides shall remain open. Direct service is
permitted.
(JAYANT PATEL, J.)
Suresh*
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