1. Though this Appeal From Order has been listed on the board for admission, with the consent of the learned counsel appearing for both the parties, this Appeal From Order has been taken up for final hearing today.
2. This Appeal From Order has been filed by the appellants for quashing and setting aside the order dated 12-7-2012 passed below Notice of Motion Ex.6/7 in Civil Suit (CCC) No.1441 of 2012 by the learned Judge, City Civil Court No.13, Ahmedabad, whereby, while partly allowing the Notice of Motion, the appellants-original defendant Nos.1 and 2 (hereinafter referred to as 'the defendants' for short) were temporarily restrained from reverting the present respondents Nos.2 to 182-original plaintiffs Nos.2 to 182 (hereinafter referred to as 'the plaintiffs' for short) from the present post of Principal or interfering with the performance of their duties of Principal till final disposal of suit.
3. The plaintiffs instituted Civil Suit No.1441 of 2012 before the City Civil Court at Ahmedabad, inter alia, contending that the plaintiff No.1-Ahmedabad Municipal Teachers Sikshan Mandal is a registered Association and other plaintiffs are its members. The plaintiffs have been working with Ahmedabad Municipal School Board as Assistant Teachers/Primary Teachers and they have been promoted on the principle of seniority-cum-merit as Acharya/Head Teachers on probation after seeking applications from them and taking interviews. According to the plaintiffs, the cadres of Acharya and Assistant Teacher are different and their seniority list is also separately maintained. Acharya is also known as Head Teacher and that they are paid allowance though salary of Acharya and Primary Teacher is the same.
4. Rules have been framed by the State of Gujarat for recruitment to the post of Head Teacher (Class-III) in the Subordinate Service of Directorate of Primary Education or respective District or Municipal Primary Education Committee under Section 23(3) of Gujarat Primary Education Act, 1947. When Gujarat State Primary Education Committee issued an advertisement for appointment of Head Teacher on 22-3-2012, the plaintiffs apprehended that if appointments are made as per the said advertisement, they would face reversion and hence, the plaintiffs have taken out Notice of Motion Ex.6/8 on 11-6-2012.
5. The defendants submitted replies to the suit as well as interim injunction application contending inter alia that the plaintiffs were never appointed to the post of Acharya on seniority-cum-merit basis. It was however contended that “From time to time, the defendant called for application for the post of Acharya and on the basis of seniority, they were allowed to occupy the post of Acharya on the basis of seniority and not on merit.” The plaintiffs' appointment as Acharya on clear and substantive post has been denied by the defendants.
6. Upon affording opportunity of hearing to the parties concerned, learned Chamber Judge partly allowed Notice of Motion whereby interim relief was granted in terms of prayer para 6(a) of Notice of Motion till hearing and final disposal of the suit. Hence, the present Appeal From Order by the defendant-Ahmedabad Municipal Corporation and Ahmedabad Municipal School Board.
7. Heard learned counsel, Mr.Vijay Patel for M/s H.L.Patel Advocates for the original defendants and learned counsel, Mr.M.B.Gandhi, for the original plaintiffs.
8. It is mainly submitted by learned counsel for the appellants, Mr.Vijay Patel, that order passed by the trial court is contrary to the provisions of law and evidence on record. It is further submitted that State of Gujarat, which is the decision taking authority, has not been joined as party respondent and hence, the suit suffers from non-joinder of necessary parties. According to him, remedy is available to the plaintiffs under Sec.24 of Bombay Primary Education Act, 1947, however, without exhausting the said remedy, the plaintiffs have straightaway approached the civil court and hence, suit is premature and without jurisdiction. It is further submitted that there is no separate post of Acharya/Head Teacher and a Primary School Teacher, who is assigned the duty of Head Teacher, is paid additional allowance and duty of Head Teacher has been mentioned as per Rule 70(2) of Bombay Primary Education Rules. It is further submitted that cause of action does not arise to file the present suit as it is the internal administration of the appellants and hence, by granting interim injunction, great inconvenience and hardship have been caused to the appellants which will adversely affect their smooth administration and management. According to him, granting of injunction amounts to partly allowing the decree and hence, it is requested that the impugned order be quashed and set aside.
9. It is however submitted by Mr. M.B.Gandhi for the plaintiffs that the plaintiffs were appointed on the post of Principal consequent upon inviting application and on appearing before the Selection Committee in interview. It is further submitted that large number of plaintiffs are holding the post of Principal for the last ten years and they cannot be removed by applying the resolution dated 18-1-2012 as the said resolution does not have retrospective effect. According to him, the resolution indicates that proved merit and efficiency is the criteria for the purpose of promotion and hence, it can have only prospective effect and, therefore, the said resolution cannot be applied in the case of teachers, who have been promoted to the post of Principal. It is, therefore, submitted that the plaintiffs have a prima facie case and balance of convenience in their favour and, therefore, if Government resolution is made applicable in case of plaintiffs, they will suffer great hardship and irreparable loss. According to him, only civil court has jurisdiction to pass an order against reversion. It is, therefore, submitted that the impugned order is just, legal and proper and does not warrant any interference by this Court. He has relied on a decision of the Hon'ble Apex Court in the case of J.S.Yadav Vs. State of U.P. reported in (2011) 6 SCC page 570 and submitted that in case of teachers in private aided schools where recruitment process has already commenced, Government's move to ban filling of vacant posts was not given retrospective effect.
10. This Court has considered the rival submissions made by the learned counsel for the respective parties. The relief claimed by the plaintiffs vide prayer paragraph 6(a) pertains to service conditions of teachers of a recognized private primary school and its management. The defendant Corporation is running the primary school on behalf of the Government. It has to follow the norms and notifications issued by the Government and cannot act contrary to the same. The appointing authority of these teachers is the State Government, who finalizes the list and hand it over to the defendants for issuing appointment orders. Therefore, any dispute regarding the service conditions of teachers relating to dismissal, removal or reduction in rank of teachers can be taken care of by the State Government and, therefore, State Government is a necessary party. Although State Government has been initially joined as a party in the suit and injunction application, it has been subsequently deleted and, therefore, order of injunction ought not to have been granted against the defendants, who are implementing the notifications issued by the State Government from time to time.
11. As far as prayer paragraph 6(b) is concerned, plaintiffs are seeking a direction against the respondent No.3- State of Gujarat (which was subsequently deleted from the suit) to the effect that the State shall not implement their recruitment rules retrospectively. Though direction is sought for by such a prayer against the defendant No.3 challenging the proposed action of their reversion in future, neither the State nor the Director of Primary Education has been joined as party defendant. Without joining either them as party, no relief could have been granted against the defendants. This Court is, therefore, of the opinion that the trial court has committed a grave error in holding that Government is not a necessary party in the matter though while perusing the relief clause in the plaint as well as in the injunction application, prayer of injunction is sought for against the Government. It may be noted that the plaintiffs have not been reverted as on today.
12. Relief is also sought by the plaintiffs to the effect that as per the rules framed by the Government, they should not be reverted by the Government or the competent authority. By challenging the rules, the plaintiffs have impliedly sought relief against the Government or the authority restraining them from reverting back from the post of Principal. In the opinion of this Court, if any order is passed by the authority or the Administrative Officer or the Government then, jurisdiction to decide the said issue rests with Gujarat Primary Education Tribunal under Sec.24 of the Gujarat Primary Education Act and, therefore, it will be the Tribunal and not civil court which will have jurisdiction to decide the said issue. Therefore, the trial court has committed an error in holding that as no order is passed by the Administrative Officer, the Tribunal has no jurisdiction and it is the civil court which has the jurisdiction to entertain the said issue.
13. In these circumstances, the prayer made by the plaintiffs could not have been granted by the civil court and hence, order suffers from non-joinder of necessary party. The Civil Court has not considered the aspect that by filing the present suit and making prayer in injunction application, the plaintiffs have silently challenged the rules framed by the Government and also sought relief against implementation of said rules for which, though Government is a necessary party and it was initially joined, it has been subsequently deleted and, therefore, no injunction ought to have been granted by the Civil Court. In view of the above, the impugned order requires to be quashed and set aside and appeal deserves to be allowed.
14. Thus, Appeal From Order is allowed. Order dated 12-7- 2012 passed below Notice of Motion Ex.6/7 in Civil Suit (CCC) No.1441 of 2012 by the learned Judge, City Civil Court No.13, Ahmedabad, is quashed and set aside.
15. In view of the above order in Appeal From Order, Civil Application No.7920 of 2012 does not survive and is disposed of accordingly. Notice issued in Civil Application is discharged.
[M.D.SHAH,J.] radhan
FURTHER ORDER
After pronouncement of the aforesaid judgment and order, learned counsel, Mr.M.B.Gandhi, for the respondents-
original plaintiffs sought stay of operation of the order for a period of eight weeks in order to approach the Hon'ble Supreme Court.
Considering the facts and circumstances of the case, operation of this order is stayed for six weeks. Order dated 12- 7-2012 passed below Notice of Motion Ex.6/7 in Civil Suit (CCC) No.1441 of 2012 by the learned Judge, City Civil Court No.13, Ahmedabad, is continued till then.
[M.D.SHAH,J.] radhan