{"id":245276,"date":"2001-07-12T00:00:00","date_gmt":"2001-07-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/solanki-bharatkumar-khushal-vs-district-primary-education-on-12-july-2001"},"modified":"2016-11-12T17:30:05","modified_gmt":"2016-11-12T12:00:05","slug":"solanki-bharatkumar-khushal-vs-district-primary-education-on-12-july-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/solanki-bharatkumar-khushal-vs-district-primary-education-on-12-july-2001","title":{"rendered":"Solanki Bharatkumar Khushal – … vs District Primary Education … on 12 July, 2001"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Solanki Bharatkumar Khushal – … vs District Primary Education … on 12 July, 2001<\/div>\n
Author: P Majmudar<\/div>\n
Bench: P Majmudar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
P.B. Majmudar, J.<\/p>\n
1. Rule. Mr.Munshaw and Mr.Joshi waive service of
\nrule for the respective respondents.\n<\/p>\n
 With the consent of the parties, the matter is
\ntaken up for final hearing today.\n<\/p>\n
2. The petitioner was selected as a primary teacher
\non 8.10.1992 in Ikbalgadh Ashram Shala. The State
\nGovernment had passed a resolution dated 23rd August,
\n1973, consequent on the representation to Government that
\nteachers appointed in Ashram Schools run by voluntary
\nagencies have no security of service, as a result of
\nwhich they leave the institutions as soon as they secure
\nbetter employment, on account of which the work in Ashram
\nSchools suffer. It was, therefore, decided by the said
\nResolution that such teachers employed in the Ashram
\nSchools and who possess the prescribed qualifications and
\nexperience for appointment as primary teachers of the
\nDistrict Education Committees under the Panchayats and
\nwho are within the prescribed age limit on the day of
\ntheir recruitment in the service of Ashram Schools were
\nallowed to have their lien in the services of the
\nrespective District Education Committees under the
\nPanchayats and the services of such teachers are counted
\nin the services of the District Education Committees from
\nthe date of selection by the Staff Selection Committee of
\nthe respective District Panchayats. The said G.R. is at
\nAnnexure `A’. It is also provided in the said G.R. that
\nthose of the teachers who will be selected by the
\nDistrict Education Committee for absorption in their
\nservices will normally continue in the Ashram Schools and
\nwill not be allowed to join the schools of the District
\nEducation Committees unless either the Ashram Schools are
\nclosed or they have put in at least five years’ services
\nin the Ashram Schools. Therefore, as per the said G.R.,
\neven if a teacher is selected for appointment in the
\nschools of the District Education Committees unless he
\ncompletes five years’ service in such Ashram Schools,
\nwhere he was serving, he will not be able to join the
\nservices of the District Education Committees. In other
\nwords, he will have to complete five years’ service in
\nthe Ashram Schools and after completing such five years’
\nservice, such teacher was found eligible to be appointed,
\nprovided he is selected by the District Education
\nCommittee for appointment in their schools, in which case
\nthe teacher will be entitled to have lien for the
\nservices which he had rendered in the Ashram Schools.\n<\/p>\n
3. The respondent No.2 school also passed a
\nResolution, which is at Annexure `B’, page 18, by which
\nthe said school decided to give benefit of lien to those
\nwho are serving in their Ashram Shalas. The respondent
\nNo.2-School also gave no objection by their letter dated
\n25.6.1998 in the matter of giving benefit of lien in case
\nthe petitioner is absorbed as a teacher under the
\nDistrict Education Committee. On the basis of the
\nadvertisement which was published in newspaper on 25th
\nJune, 1998, which is annexed at page 22, the petitioner
\napplied for appointment under the District Education
\nCommittee. It is required to be noted that so far as
\nselection procedure is concerned, the said selection is
\npurely on objective criterion, and on the basis of the
\nmarks obtained by the candidate in the S.S.C. and
\nP.T.C., the merit list is prepared and there is no
\nfurther scope of any written examination or even for oral
\nexamination except to verify the genuine mark-sheets from
\nsuch candidates, who are placed on the merit list by
\nvirtue of the marks they obtained in the S.S.C. and
\nP.T.C. examinations and also in order to find out
\nwhether they are physically fit or not. The basis for
\ncalling such candidates for personal interview is also
\nmentioned under the Rules, known as “Recruitment \/
\nSelection Rules of Vidya Sahayaks”. The aforesaid Rules
\nare produced at page 69 by the petitioner with his
\naffidavit-in-rejoinder, wherein it is clearly mentioned
\nat page 71 that the reason for calling candidates for
\npersonal interview is only to find out whether he is
\nphysically fit or not and, therefore, as stated earlier,
\non the basis of the marks obtained in the examinations,
\nmerit list of those candidates, who are found eligible
\nfor appointment, is prepared, subject to further
\nverification regarding their physique, etc., in the oral
\ninterview. On the basis of the marks obtained by the
\npetitioner in his S.S.C. and P.T.C. examinations, his
\nname was included in the merit list and the petitioner
\nthereafter appeared in the personal interview also on
\n13.9.1998 and, therafter, he was expecting his
\nappointment order. In the meanwhile, the petitioner has
\nalso sent all necessary papers of lien etc., to the
\nDepartment. Thereafter, by an order dated 22nd January,
\n1999, which is at Annexure `D’, the District Primary
\nEducation Officer has passed an order of granting lien to
\nsix teachers, which includes the name of the petitioner
\nalso at serial No.6. The aforesaid order, therefore,
\nclearly shows that the petitioner was selected by the
\nDistrict Primary Education Officer and benefit of lien
\nwas also given to him by the aforesaid letter. The only
\nthing which was required to be done further was giving
\nhim posting orders on the basis of his selection.
\nTherafter, by an order dated 22.9.2000, the Director of
\nPrimary Education, Gujarat State, Gandhinagar informed
\nthe District Primary Education Officer that out of the
\nsix teachers, on whose behalf the proposal was sent, the
\nlien can be given to two persons, one Rajput Bhurabhai
\nPirabhai, and the present petitioner. Accordingly, the
\nDirector had approved the proposal of the District
\nPrimary Education Officer for giving lien so far as the
\npresent petitioner as well as Rajput Bhurabhai Pirabhai
\nare concerned. On the basis of the said order, the
\npetitioner was awaiting his posting order. However, it
\nseems that for a considerable time, no posting order was
\ngiven to him by the District Primary Education Officer.
\nThe petitioner also made some representations in this
\nconnection from time to time. In the meanwhile, fresh
\nadvertisement was published in the newspaper, which is
\nproduced at Annexure `G’ page 39 in the compilation. The
\npetitioner, therefore, again applied for such appointment
\non the basis of the said advertisement dated 8.8.2000 as
\nhe was apprehending that he may not be given the
\nappointment order on the basis of his earlier selection.
\nThe petitioner was again selected and he was given
\nappointment order dated 17th January, 2001 produced at
\npage 44. It is required to be noted that so far as the
\nsaid appointment is concerned, it is based on the
\napplication of the petitioner as a direct recruit and not
\nas an employee of a particular Ashram Shala. The
\npetitioner, however, subsequently informed the Department
\nthat he is accepting the appointment order without
\nprejudice to his rights and contentions. However, as per
\nthe averments in the petition at page 7 of the petition,
\nthe petitioner has accepted the aforesaid appointment
\norder dated 17th January, 2001 without prejudice to any
\nof his rights, claims and contentions for such absorption
\nin view of the lien granted to him on the basis of his
\nservice rendered in the Ashram School of respondent No.2.
\nAccordingly, the petitioner has accepted the said
\nappointment order dated 17.1.2001 and he has joined the
\nservice as Vidhya Sahayak.\n<\/p>\n
4. The grievance of the petitioner, however, in this
\npetition is that the District Primary Education Officer
\nhas not given the benefit regarding his services which he
\nhas put in as a Vidhya Sahayak in the Ashram School of
\nrespondent No.2. Since the said benefit was not given,
\nhe challenged the same by filing the present Special
\nCivil Application.\n<\/p>\n
5. The petitioner has prayed in the petition that he
\nshould be given the benefit of Lien on the same lines on
\nwhich one Mr.Rajput Bhurabhai Pirabhai was granted the
\nsame and the said Mr.Rajput Bhurabhai Pirabhai was
\ngranted the benefit of lien with effect from 16.10.2000.
\nFor the said claim, the petitioner has placed strong
\nreliance on the letter of the Director of Primary
\nEducation dated 22.9.2000, which is addressed to the
\nDistrict Primary Education Officer, wherein he has
\napproved the benefit of lien in favour of the said
\nMr.Rajput Bhurabhai Pirabhai and the present petitioner.
\nAt the time of hearing of this Special Civil application,
\nit was argued by Mr.Pujara, learned Advocate for the
\npetitioner, that as per the Resolution dated 23rd August,
\n1973, a teacher is entitled to the benefit of Lien from
\nthe date of selection by the Staff Selection Committee of
\nthe respective District Panchayats. It is not in dispute
\nthat so far as the Ashram School of respondent No.2 is
\nconcerned, staff of the said Ashram School are eligible
\nfor the benefit of lien as per the G.R. dated 23rd
\nAugust, 1973. It is the say of the petitioner that he
\nhaving been selected at the relevant time, he was
\nentitled to the lien as per the said Circular. It is
\nstated that without any valid reason, he was not given
\nthe appointment order and, therefore, ultimately, he
\napplied again when new advertisement appeared in the
\nnewspaper. It is the say of the petitioner that the
\naction of the District Education Committee in not giving
\nabsorption to the petitioner as per the G.R. dated 23rd
\nAugust, 1973 is illegal, arbitrary and discriminatory and
\nthere was no reason to discriminate the case of the
\npetitioner from Mr.Rajput Bhurabhai Pirabhai.\n<\/p>\n
6. On behalf of the District Education Committee,
\naffidavit-in-reply has been filed by one Mr.Gameti, who
\nis a District Education Officer of the District
\nPanchayat. It is stated in paragraph 6 of the said reply
\nthat pursuant to the preparation of the merit list, the
\npetitioner, along with other meritorious candidates were
\ncalled for interview with the original mark-sheets and
\ncertificates and therafter, a select list and waiting
\nlist were prepared. It is further stated that the
\npetitioner was placed in the waiting list as he could not
\nbe placed in the select list, wherein candidates who have
\nsecured 71.58 points and above were placed. It is
\nfurther stated that the said select list was operated and
\nthe appointments were made from the select list and the
\nlast candidate appointed had secured 71.58 points and
\nthat the waiting list was prepared to the extent of 20%
\nof the posts advertised and, therefore, the petitioner
\nwas kept in the waiting list. In view of the aforesaid
\naffidavit-in-reply, it was argued by Mr.Munshaw that
\nsince the petitioner was in the waiting list and since he
\nwas not given any substantive appointment order, the
\nbenefit of the aforesaid G.R. dated 23rd August, 1973 is
\nnot available to him. Mr.Munshaw further submitted that,
\nsubsequently, when the petitioner appeared in the fresh
\nselection process and was ultimately selected, the
\naforesaid Scheme of the Resolution of 1973 was already
\nscrapped and the Scheme of giving benefit of lien was not
\navailable and, therefore, according to him, the
\npetitioner was not entitled to the said benefit. He
\nfurther submitted that by Resolution dated 8.12.1999, the
\nResolution of 23rd August, 1973 is scrapped. The said
\nResolution is at page 60, Annexure `IV’. In paragraph 3
\nof the said Resolution, it is clearly mentioned that
\nwhatever decisions taken prior to the date of this
\nResolution will not be affected. In that view of the
\nmatter, the only question which is required to be
\nconsidered is whether the petitioner is entitled to the
\nbenefit of the 1973 Resolution or not. Reading the said
\nResolution, it is clear that if a teacher is selected by
\nvirtue of such selection by the Selection Committee, he
\nis straightaway entitled to the benefit of lien as
\nmentioned in the said Resolution. The relevant part of
\nthe Resolution is required to be repeated again :-
\n “Those of the teachers who will be
\nselected by the District Education
\nCommittees for absorption in their service
\nwill normally continue in the Ashram
\nSchools and will not be allowed to join the
\nschools of the District Education
\nCommittees unless either the Ashram Schools
\nare closed or they have put in at least
\nfive year services in the Ashram Schools.\n<\/p>\n
 By virtue of the said Resolution, even if a
\nteacher is selected for appointment by the District
\nEducation Committee, he will not be allowed to join the
\nschools of the District Education Committee unless he has
\nput in at least five years’ service in the Ashram
\nSchools. It is, therefore, clear that what is required
\nto be seen is the selection of such teacher. The said
\nG.R. nowhere provides that such benefit can be given on
\nthe basis of posting orders or actual appointments and it
\ndeals with only selection and nothing more. Mr.Munshaw,
\nhowever, argued that since the petitioner was not
\nappointed on the basis of his selection so far as the
\nearlier selection process is concerned, he was not
\nentitled to the lien. He also submitted that so far as
\nRajput Bhurabhai Pirabhai is concerned, he was not only
\nselected, but was also given appointment order and,
\ntherefore, he was given the benefit of lien in view of
\nthe aforesaid G.R. of 1973. In my view, it is not
\npossible to accept the say of Mr.Munshaw and it is
\ndifficult to distinguish the cases of these two persons,
\nviz. the petitioner and Rajput Bhurabhai Pirabhai. It
\nis not in dispute that the petitioner was selected and,
\nmay be, at the relevant time, he was kept in the waiting
\nlist, but what is required to be seen is selection and
\nnot appointment. Therefore, even if a teacher is
\nappointed by a Committee, and he is serving in the Ashram
\nSchool, he may not be able to get the appointment in the
\nSchool of the District Education Committee till he
\ncompletes the five years’ service, but still, he can be
\nsaid to have been selected and such teacher is entitled
\nto the benefit of the G.R. of 1973. Under these
\ncircumstances, there was no reason to deny the benefit of
\nthe G.R. of 1973 to the petitioner simply on the ground
\nthat even though he was selected, actual posting order
\nwas not given and, therefore, since he was not appointed,
\nhe was not entitled to the said benefit. Reading the
\nG.R., no other view is possible and it is clear that on
\nthe basis of his selection, such teacher is entitled to
\nget the benefit of lien. It is not in dispute that the
\npetitioner was selected on the basis of his interview of
\n13th September, 1998, which was followed by order dated
\n22.1.1999 passed by the District Primary Education
\nOfficer and subsequent order of the Director of Primary
\nEducation dated 22.1.2000, by which the benefit of lien
\nwas given to the petitioner as well as to Rajput
\nBhurabhai Pirabhai. In view of what is stated above, the
\npetitioner was entitled to have benefit of lien on the
\nbasis of his selection and the said benefit was not
\ndependent upon the appointment order of the petitioner on
\nthe said post. The District Primary Education Officer
\nhas failed to consider the G.R. of 1973 in its proper
\nperspective and on wrong interpretation, the petitioner
\nwas denied his just claim of lien. In fact, there was no
\nreason to discriminate the petitioner and he was entitled
\nto the same benefit and treatment which was given to
\nMr.Rajput Bhurabhai Pirabhai. It is not in dispute that
\nthe said Rajput Bhurabhai Pirabhai was already given the
\nbenefit of lien by the Department.\n<\/p>\n
7. In view of what is stated above, it is not
\npossible to accept the say of the learned Advocate for
\nthe District Primary Education Officer that unless actual
\nappointment order is given, the benefit of lien cannot be
\ngiven. The said argument is dehors the Resolution dated
\n23rd August, 1973. It is no doubt true that the
\npetitioner himself subsequently appeared in the
\ninterview. However, the subsequent appointment was
\naccepted by the petitioner without prejudice to any of
\nhis rights, claims and contentions to get the benefit of
\nlien in view of his earlier selection. Mr.Munshaw has
\nfairly stated that the petitioner was selected on the
\nbasis of the first advertisement. However, since he was
\nkept in the waiting list, he was not given the benefit of
\nthe G.R. However, as stated above, in the said G.R. of
\n1973, nowhere it is stated that the benefit should be
\ngiven only on appointment. In that view of the matter,
\nin my view, without any justifiable reason and on wrong
\ninterpretation of the Resolution, the petitioner was
\ndenied the benefit at the relevant time.\n<\/p>\n
8. In view of what is stated above, the petition is
\nrequired to be allowed and it is accordingly allowed. It
\nis clear that the petitioner is entitled to the benefit
\nof lien on the basis of his selection and the District
\nPrimary Education Officer is directed to give the same
\nbenefit of lien as per the G.R. of 1973 as has been
\ngiven to Mr.Rajput Bhurabhai Pirabhai. Necessary orders
\nin this behalf may be passed within a period of two
\nmonths from today.\n<\/p>\n
 The petition is accordingly allowed. Rule is
\nmade absolute.\n<\/p>\n
 It will be open for the petitioner to take direct
\nservice of this order in order to see that the Department
\nexpedites the proceedings.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Solanki Bharatkumar Khushal – … vs District Primary Education … on 12 July, 2001 Author: P Majmudar Bench: P Majmudar 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-245276","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSolanki Bharatkumar Khushal - ... vs District Primary Education ... on 12 July, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/solanki-bharatkumar-khushal-vs-district-primary-education-on-12-july-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Solanki Bharatkumar Khushal - 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