Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
========================================================= RAJAK HASAM GHANCHI & 2 - Petitioner(s) Versus ANJUMANE ISLAM MEMON MOTI JAMAT SANCHALIT MADRESSA & 1 - Respondent(s) ========================================================= Appearance :
MS MAMTA R VYAS for Petitioner(s) : 1 - 3.
MR MA KHARADI for Respondent(s) : 1, MR PREMAL R JOSHI for Respondent(s) :
2, ========================================================= CORAM :
HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 26/03/2012 COMMON CAV JUDGMENT As common questions of fact and law are involved in both the petitions referred to above, they were heard together and are being disposed of by this common judgment and order.
At the outset, the learned Advocate Ms.Mamta R.Vyas for the petitioner submitted that out of the two petitions being Special Civil Application No.5213 of 2001 and Special Civil Application No.5885 of 2001, only three petitioners of Special Civil Application No.5213 of 2001 i.e. Razak Hasan Ghanchi, Tar Mohmad Alimohmad Zuda and Zakirhussain Ahmad Shaikh are desirous of pursuing the matter.
By way of this writ petition under Articles 226/227 of the Constitution of India, the petitioners have prayed for the following reliefs :
"13 This Hon'ble Court will be pleased to admit this Petition.
That this Hon'ble Court will be pleased to quash and set aside the impugned judgment and order dated 27.06.2001 passed by the Hon'ble Primary Education Tribunal, Ahmedabad, in Application No.222 of 1996, Annexure-A to this petition, and further be pleased to hold that the petitioners are entitled to receive full salaries as per the Rules framed by the Government from time to time and their services are required to be continued.
Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the implementation, execution and operation of the impugned judgment and order dated 27.06.2001 passed by the Hon'ble Primary Education Tribunal, Ahmedabad, in Application No.222 of 1996, Annexure-A to this petition, Be pleased to pass such other and further reliefs as the facts and circumstances of the present case may require."
Facts shortly stated are thus :
The petitioners have challenged order passed by the Primary Education Tribunal dated 27th June 2001 and thereby the Tribunal rejected the application of the petitioners refusing to grant salary as prescribed by the Government from time to time so far as Untrained Teachers working with a private minority institution are concerned.
The petitioners were appointed as Assistant Teachers in Primary Section of respondent no.1 School. After their appointments they worked continuously without any break and to the satisfaction of the management of the institution.
It is the case of the petitioners that though they are entitled to receive full salary as per the Government rules, the respondent no.1 i.e. the Management denied the same. Petitioners, therefore, filed an application bearing No.222/1996 before the Primary Education Tribunal, Ahmedabad.
It is the case of the petitioners that necessary evidence was adduced in support of their claim, however, the Tribunal rejected the application filed by the petitioners saying that the appointments of the petitioners were not as per the Scheduled-F prescribed under the Primary Education Act.
I) Contentions of the petitioner :
Learned Advocate Ms.Mamta Vyas appearing for the petitioners vehemently submitted that at no point of time, the Management has come out with a case that the appointments of the petitioners were not as per the rules. She submitted that the Tribunal has committed a substantial error of law in holding that the appointments of the petitioners are not as per the procedure and, therefore, they are not entitled to receive regular salary as prescribed by the Government. Ms.Vyas further submitted that the Tribunal ought to have considered that respondent no.1 is a minority institution and since they were under the belief that the Institution is a minority institution, the regular procedure for appointment of teachers was not required to be followed. She submitted that on this ground the management did not issue any advertisement nor any procedure was undertaken as prescribed under Schedule-F. She further submitted that still however, respondent no.1 issued an advertisement inviting applications for the posts of Teacher and pursuant to applying for the post the candidates were even interviewed. She further submitted that the petitioners are Full-time Teachers and are still working with respondent no.1 - School past more than 25 years. Ms.Vyas vehemently submitted that as per Regulation-9 of Schedule-F of the Bombay Primary Education Act, 1949 read with Regulation-106, the pay and pay-scale as prescribed by the Government from time to time are required to be paid but only Rs.700=00 (fixed) earlier was being paid and for the demand of pay scale of Untrained Teachers they went before the Tribunal. She further submitted that the Government has fixed the pay-scales for the Trained and Untrained teachers from time to time as detailed below :
Date of G.R.
Pay scale for trained teachers Pay scale for untrained teachers 25/10/1972 135-5-155-EB-7-120-EB-8-230-10-200 100-2-110-3-140-4-160 24/12/1975 (w.e.f.
1/1/1976) 290-8-330-10-350-EB-10-380-12-428-EB-12-500-15-560 260-6-308-EB-6-326-8-350 25/9/1987 (w.e.f. 1/1/1986) 1200-30-1560-
EB-40-2040 950-20-1150-EB-25-1400 7/9/1998 (w.e.f. 1/1/1996) 4000-100-6000 3050-75-3950-
80-4590 II) Analysis :
Ms.Vyas invited my attention to various orders which have been passed in the petition being Special Civil Application No.5213/2001 from time to time. It appears that initially the petitioners were paid only a paltry sum of Rs.700=00 per month. In this regard one order came to be passed on 27th July 2005 by the learned Single Judge (Coram: P.B.Majmudar, J. - as His Lordship then was), the order reads as under:
"1. Today, at the time of hearing of this petition, Mr.Faruk Tumbi, President of the Trust is present alongwith other office bearers of the Trust. In order to find out immediate solution to the problem, he has submitted that even though the school is having financial crises and even though the petitioners have not been recruited as per the prescribed provisions of the Primary Education Act, management will see to it that with effect from 1st August,2005, the concerned petitioners will get salary of Rs.1,700/- instead of Rs.700/- per month. He submitted that he is making this statement subject to the rights and contentions of the Trust in the main Special Civil Application.
2. On the other hand, Ms.Vyas for the petitioners submitted that her clients are happy about the gesture shown by the management at this stage. She, however, submitted that the petitioner will be accepting the aforesaid amount subject to their rights and contentions in the main Special Civil Application.
3. Since the management has shown the aforesaid gesture by increasing the salary as an interim arrangement, it is not necessary to pass the any further interim order of increasing the salary.
4. In view of the direction given by this Court, District Primary Education Officer Mr.C.S.Kishore is present. It is submitted by him that the District Primary Education Officer has no other independent roll as it is minority institution and it is not open for his department to give any direction for increasing the salary. In that view of the matter, now it is not necessary for him to remain present in this matter. Special C.A. 5213 of 2001 to be listed for final hearing on 11 August, 2005."
Thereafter on 20th December 2002 another learned Single Judge of this Court ( R.M.Doshit,J, as Her Ladyship then was) :-
"Heard the learned advocates. RULE.
The petitioners before this Court are some of the teachers appointed by the respondent-madressa in a primary school. The petitioners are paid remuneration of a consolidated sum of Rs.585/- per month.
Feeling aggrieved, the petitioners and some other teachers preferred Application No.222 of 1996 before the learned Gujarat Primary Education Tribunal (hereinafter referred to as "the Tribunal"). The petitioners claimed that they were entitled to the pay and allowance determined by the Government from time to time. The Tribunal, however, found that neither of the applicants was qualified for being appointed as a primary school teacher nor were they appointed after following due procedure under law. Neither of the petitioners was given appointment order. The Tribunal under the judgment and order dated 27th June, 2001 dismissed the application. Feeling aggrieved, the petitioners have preferred the present petition.
It is not disputed that none of the petitioners is qualified for being appointed as primary school teacher, none of them has been appointed after following due procedure, none of them has been given appointment order. However, to me, it appears that the respondent-school management has taken undue advantage of the petitioners' neediness and has appointed them as primary school teachers for a meagre pay of Rs.585 per month. The respondent-school management cannot be permitted to appoint teachers in violation of the statutory provisions. By appointment of such unqualified teachers ultimately the education shall suffer. Here is a gross case where both the students and the teachers have to suffer.
Hence, pending the petition, it is directed that the respondent no.1-school management shall pay a monthly pay of Rs.2,500/- to each of the petitioners. Such payment shall be made in the month of January, 2003 and shall be paid regularly every month thereafter.
6. The Registry is directed to send copy of this order to the Director of Primary Education, Gandhinagar, with a direction that the said directorate shall take appropriate action and shall ascertain that respondent no.1-madressa appoints trained primary school teachers."
It appears that the order dated 20th December 2002 was challenged by the Management before the Apex Court by filing Special Leave to Appeal (Civil) No.13125 - 13126/2003 which came to be disposed of with a direction to the management to pay salary of Rs.1700=00 per month. The Apex Court directed to dispose of the Special Civil Application at an early date.
Thus, only question for my consideration in this petition is as to whether the petitioners working as Untrained Teachers in a minority institution are entitled to receive salary as per the rules framed by the Government from time to time or not.
I am of the view that this issue is no longer res integra after the pronouncement of the judgment by the Supreme Court in the case of Shantiniketan Hindi Primary School v/s. Pal Hariram Ramavtar and others, reported in AIR 2010 SC 656. The facts in the case of Shantiniketan (supra) were that Shantiniketan Educational Trust was a minority institution running two primary unaided schools, one in Gujarati medium and the other in Hindi medium in the State of Gujarat. Respondent nos.1 to 4 were working as teachers in those schools. Their services were terminated on 5th July 1996 on the ground that they had absented from duties. Against the order of termination of service they filed application before the Gujarat Primary Education Tribunal. While they were in service they moved applications before the said Tribunal claiming parity of pay and allowances as per Government rules applicable to the Untrained Teachers. All the applications were heard together by the Tribunal and a common order was passed quashing the termination orders and directing reinstatement with full salary and other benefits from the date of termination till the date of the order with a further direction to pay the salary and other benefits applicable to Untrained Teachers as per Government rules, from the dates of their appointments. The Management filed a writ petition being Special Civil application No.6918/2001 which was dismissed by the learned Single Judge of this High Court on 19th February 2002 which was affirmed by the Division Bench vide order dated 30th February 2002. Aggrieved by the same, Appeal came to be preferred before the Supreme Court by the Management.
Before the Supreme Court, the main contention raised by the Management was that the respondents were unqualified to hold the post and also that they were not trained teachers. Supreme Court noticed that the reason for termination of service was not that they were unqualified or untrained teachers, but that they had absented from duties. Dismissing the Appeal filed by the Management and holding that the respondents-teachers were entitled to get pay and allowances which are applicable to untrained teachers as per Government rules, Supreme Court held as under :
"5. The appellant is a recognized unaided Primary School governed by the provisions of the Bombay Primary Education Act 1947. The 1st Respondent, herein a graduate was appointed as Assistant Primary Teacher in the Hindi Medium of the School on 5.6.1987. 2nd respondent, who was possessing the qualification of SSC was appointed in the school as a Teacher for the course of Handicraft and Book binding on 8.7.1985. The 3rd respondent was appointed as Assistant Teacher in the Gujarati Medium of the school on 22.6.1986 and the 4th respondent was appointed on Assistant Primary Teacher in the Gujarati medium on 5.6.1987. They were discharging their duties without any complaint from any quarters. Noticing that they were not getting the pay and allowances as per Government Rules applicable to untrained teachers, they approached the Tribunal and filed application nos.3 of 1993 and 30 of 1993 for a direction to the Management to pay the salary and allowances as per Government Rules. Apparently, irked by such demand, their services were terminated by the Management on the ground that they had absented from duty without informing the Management which amounted to gross indiscipline. The Tribunal after an elaborate discussion of the various contentions raised by the parties and also examining the provision of Bombay Primary Educational Act, 1947 and the Gujarat Amendment Rules 1978 came to the conclusion that the order of termination was bad since the Management had not followed by proper procedure in terminating their services. Further, it was also found that the respondents were entitled to get the pay and allowances as per Government Rules applicable to untrained teachers.
6. The main contention raised by the Management before us was respondents were unqualified to hold the post and also that they were not trained teachers. We notice that the reason for termination of services was not that they were unqualified or untrained teachers but that they had absented from duties. Assuming that they had absented from duties even then admittedly procedure laid down under Clause 13 and 18 of Schedule `F' of the Bombay Primary Education Rules, 1949 had to be followed before terminating their services. The Tribunal and the High Court had therefore rightly held that the orders of termination of services of the respondents was bad in law.
7. Rule 106A of the Bombay Primary Education Rules deals with the application for recognition. Sub-rule 2 of Rule 106-A states that every application under sub-rule 1 shall be sent to the authorized officer by registered post with acknowledgment due together with an undertaking in writing that the conditions of employment of teachers in the private primary schools shall be those as specified in Schedule 'F' appended to these rules. Schedule 'F' deals with the model conditions of employment of teachers in the private schools in the State of Gujarat which forms part of Rule 106A of the Rules. Clause (v) of sub-rule 4 states that no primary school shall be recognized or continued to be recognized unless the rates of tuition fee, pay-scales and allowances of the teaching staff shall be such as may be approved by the Government from time to time. Following the above mentioned provisions, the Tribunal, on facts found that the respondents were working as teachers in the School for over ten years but they were paid only a consolidated monthly pay of Rs.724 per month, which was found to be not in accordance with rules. Tribunal in our view has correctly come to the conclusion that the respondents-teachers are entitled to get pay and allowances which are applicable to untrained teachers as per Government Rules.
8. Under the above circumstances, we find no reason to interfere with the order passed by the Tribunal which was confirmed by the High Court. Further, we notice that when this court had granted stay of the judgment vide orders dated 13.1.2006, recorded the statement of counsel for the management that it had disbursed Rs. 2 lakhs towards arrears of salary. Needless to say that amount would be adjusted towards salary due to the respondents. Considering the financial difficulties pointed out by the counsel appearing for the Management and the fact that the School had to be closed down for the years 1995-96 and 1996-97, and considering the fact that there were unauthorized absences, we are of the view that the respondents 1-4 are entitled to get only 50% of the salary and other benefits applicable to the untrained teachers as per Government Rules from the date of appointment till the date of reinstatement after adjusting the above-mentioned amount. Ordered accordingly."
Thus, in view of the pronouncement of the Supreme Court judgment in the case of Shantiniketan (supra) the position of law is abundantly clear and the petitioners in the present case are entitled to the reliefs which have been prayed for in this petition.
In the result, the petition succeeds. The order dated 27th June 2001 passed by the Gujarat Primary Education Tribunal, Ahmedabad in Application No.222/1996 is hereby quashed and set aside and it is declared that the petitioners are entitled to receive full salary as per rules framed by the Government from time to time and the Management i.e. respondent no.1 is hereby directed to pay the salary as per pay-scale prescribed by Government Resolution dated 7th September 1998 (which came into effect from 1/1/1996).
Respondents are directed to calculate the difference of salary as per the pay-scale which has been prescribed by the State Government from time to time under the Government Resolution so far as untrained teachers are concerned and after calculating the same the amount of difference towards the salary shall be paid to the petitioners from the date of their appointment with 9% simple interest till the date of its realization. Respondents are directed to undertake this exercise within a period of three months from today and pay the requisite amount to each of the petitioners. Respondent no.1 is further directed to continue to pay to the petitioners the pay scale as prescribed by the Government Resolution for untrained teachers till they attain the age of superannuation. Rule is made absolute.
(J.B.Pardiwala, J.) /moin Top