Jagruti Yuvak Mandal vs State of Gujarat and Others

J.B. Pardiwala, J.—Since common questions of fact and law are involved in the captioned appeals, those were taken up for hearing together and are being disposed of by this common judgment and order. The Letters Patent Appeal No. 649 of 2013 is at the instance of an unsuccessful petitioner of a Special Civil Application, and is directed against the judgment and order dated 6th July, 2012, passed by a learned Single Judge of this Court, disposing of the writ-application without granting any relief, but with a liberty granted to the petitioner to put forward his claim with the respondent No. 4 school with whom the petitioner was serving.

It appears that the respondent No. 4 i.e. the school, being dissatisfied with the finding recorded by the learned Single Judge to the effect that it is a non-granted institution, thought fit to file a Review Application, being Misc. C.A. No. 3239 of 2012 before the learned Single Judge with a view to point out that there was an error in recording such finding that the respondent No. 4 School was a non-granted institution, but as a matter of fact, it is a granted institution. It appears that the said Review Application was rejected by the learned Single Judge vide order dated 9th January, 2013.

Feeling dissatisfied with such order passed by the learned Single Judge, rejecting the Review Application, the respondent No. 4 of the original petition has also thought fit to file an appeal, being LPA No. 137 of 2013.

The facts of the case:--

4.1 It appears from the materials on record that on 10th April, 2002, the District Social Welfare Officer, the respondent No. 3 herein, granted a no objection certificate for the recruitment of an Assistant Teacher in Jagadamba Ashram Shala, run and managed by the respondent No. 4, Jagruti Yuvak Mandal.

4.2 On 14th April, 2002, the appellant of LPA No. 137 of 2013 i.e. the school, issued an advertisement in the daily newspaper, inviting applications from the eligible candidates for the post of Assistant Teacher.

4.3 On 11th May, 2002, the selection committee conducted the interviews of the candidates who had applied for the post and the appellant of LPA No. 649 of 2013 was selected for the post of Assistant Teacher.

4.4 On 21st May, 2002, the School forwarded the process of selection of the appellant for the approval of the District Social Welfare Affair and on 30th May, 2002, the District Social Welfare Officer, who is the competent authority, approved the selection of the appellant as a teacher in the school, and accordingly, the school appointed the appellant.

4.5 On 1st June, 2002, the appellant joined the duty as an Assistant Teacher and initially he was paid regular monthly salary in the pay-scale of Rs. 4,000 - 6,000/-. Such salary in the pay-scale of Rs. 4,000 - 6,000 was paid upto 31st October, 2003.

4.6 On 14th November, 2003, the school, pursuant to the communications dated 22nd October, 2003 and 12th November, 2003, initiated the proceedings for recovery of the salary paid to the appellant on the premise that the appellant was entitled to a fix pay of Rs. 2,500/-. for a period of 5 years initially and was not entitled to the regular pay-scale of Rs. 4,000 - 6,000 immediately on being appointed as a Teacher.

4.7 The appellant, vide letter dated 15th November, 2003, lodged his objections to such recovery of the amount towards his salary.

4.8 It also appears from the materials on record that an application No. 92 of 2003 was filed by the appellant on 1st July, 2008, before the Primary Education Tribunal, challenging such action on the part of the school authorities in recovering the excess amount of the salary paid to him.

4.9 The application, which was filed before the Primary Education Tribunal came to be disposed of giving liberty to the appellant to file a representation in that regard before the concerned authority.

4.10 On 24th July, 2009, the State Government informed that it had not granted approval to the appointment of the appellant as a Teacher in the school and, therefore, the school could not have made payment towards the salary from the grant of the Government.

4.11 it also appears that the school authorities, vide a detailed representation dated 21st December, 2011, addressed to the respondent authorities, requested that since the appellant had completed five years of service, he was entitled to draw a regular monthly salary with effect from 1st June, 2007.

4.12 Since the State Government refused to grant the regular monthly salary, a writ-application was filed, being SCA No. 2513 of 2012, wherein the following reliefs were prayed for:--

(A) Be pleased to issue an appropriate writ, order or direction by quashing and setting aside the impugned action of the respondent No. 1 for withholding the regular monthly salary of the petitioner under direct payment of salary scheme/grant as being violative of Articles 14 and 16 of the Constitution of India, and further be pleased to direct the respondent No. 2 to grant the necessary approval for the post of the petitioner as Assistant Teacher and further be pleased to declare that the petitioner is entitled and eligible to continue in service as Assistant Teacher in regular monthly salary prescribed for the said post;

(B) Be pleased to issue an appropriate writ, order or direction by directing the respondent No. 3, District Social Welfare Officer (V.J.) to pay the regular monthly salary to the petitioner as Assistant Teacher; and further be pleased to direct the respondent No. 4 not to disturb the condition of the petitioner in any manner, pending admission, hearing and final disposal of the present petition;

4.13 it appears that the learned Single Judge took the view that the respondent No. 4, Jagruti Yuvak Mandal run and managed by Jagadamba Ashram Shala, is a non-grant-in-aid institution, and since the Government refused to approve the appointment of the appellant as a Teacher in the school, the Government owes no responsibility towards such an employee of a school, being a non-grant-in-aid institution. Accordingly, the learned Single Judge refused to grant any relief in favour of the appellant and disposed of the writ-petition granting liberty to the appellant to put forward his claim with the school authorities, in accordance with law.

Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the learned Single Judge committed any error in refusing to grant the appropriate relief prayed for by the appellant in the main writ-application.

It appears from the materials on record that the respondent No. 4, Jagruti Yuvak Mandal is a grant-in-aid institution since 1999 and has been receiving grant from the State Government. However, it appears that the learned Single Judge overlooked this aspect and recorded a finding that the respondent No. 4 is a non-grant-in-aid institution. Since such a finding, which is factually incorrect was recorded, the school also thought fit to file a Review Application seeking necessary correction, but the learned Single Judge rejected the Review Application, and therefore, the school also thought fit to file an appeal against such order passed by the learned Single Judge, rejecting the Review Application.

It also appears that the no objection certificate was issued by the competent authority i.e. the District Social Welfare Officer, Godhra for the post of Assistant Teacher on 10th April, 2002. Pursuant to such no objection certificate, the advertisement was issued in the daily newspaper dated 14th April, 2002, inviting applications from the eligible candidates. The appellant was one of the candidates who had applied for the said post and after being interviewed by the selection committee, he was selected for the said post.

It also appears from the materials on record that after the procedure of selection was completed, the necessary approval for the same was also sought for from the competent authority i.e. the District Social Welfare Officer, vide communication dated 21st May, 2002, addressed by the school authorities. It also appears that the District Social Welfare Officer, who is the competent authority, vide communication dated 30th May, 2002, approved the appointment of the appellant as a Teacher. Pursuant to the said appointment, the appellant resumed the duty on 1st June, 2002 and since then, he is performing his duties by drawing a fix salary of Rs. 2,500/-. It also appears that the legality and validity of the appointment of the appellant at no point of time was in question, but the only issue was with regard to grant of regular pay-scale from the very institution, instead of a fix salary of Rs. 2,500/-.

Thus, it appears that the learned Single Judge refused to entertain the writ-application solely on the ground that the respondent No. 4 is a non-granted institution, and therefore, the Government would be under no obligation to pay the salary on the regular pay-scale.

In our opinion, the appointment of the appellant was legal and proper and the same was also approved by the competent authority, namely the District Social Welfare Officer of the concerned District. In such circumstances, the appellant should have been paid the regular salary in the pay-scale of Rs. 4,000 - 6,000 from 1st June, 2007 i.e. from the date the appellant completed five years of service with the school in the fix salary of Rs. 2,500/-.

In the result, both the appeals succeed and are hereby allowed. The SCA No. 2513 of 2013 filed by the appellant Teacher is hereby allowed and the State Government is directed to release the salary of the appellant on the basis of regular pay-scale in the form of a grant to the school i.e. the respondent No. 4, and the respondent No. 4 in turn shall pay the regular salary in the pay-scale of Rs. 4,000 - 6,000 or the revised scale as on today. The State Government is also directed to make payment towards the arrears of the salary from 1st June, 2007 along with interest at the rate of 9% per annum, till the date of its realization, within a period of four weeks from today. So far as the Letters Patent Appeal filed by the school management against the order passed by the learned Single Judge, rejecting the application for review is concerned, the same is also hereby allowed and it is clarified that the original respondent No. 4 Jagruti Yuvak Mandal running school named Jagdamba Ashram Shala at Khudra is a grant-in-aid institution.

In view of the disposal of the appeals, the connected CA has become infructuous and is disposed of accordingly.