IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6402 of 2000 with SPECIAL CIVIL APPLICATION No 5967 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MUKESHKUMAR BHAGWANBHAI MACHHI Versus DIST PRIMARY EDUCATION OFFICER, -------------------------------------------------------------- Appearance: MR IS SUPEHIA for Petitioner MR MUKESH R SHAH for Respondent No. 1 NOTICE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 24/11/2000 COMMON ORAL JUDGEMENT #. Heard Mr.I.S.Supehia, learned advocate for the petitioners and Mr.M.R.Shah, learned advocate for the respondent No.1 and Ms.Manisha Lavkumar, learned AGP for respondent No.2. #. Rule. Mr.M.R.Shah, learned advocate and Ms.Manisha Lavkumar, learned AGP waive service of rule for the respective respondents. #. In both these petitions, common question has arisen that the petitioners were serving as teacher in Ashram Shala which came to be closed down in the year 1999 due to de-recognition by the State Government by the order dated 30-11-1998 and the petitioners were relieved from service. According to the petitioners, by the Government Resolution dated 23rd August, 1973 the State Government has decided to absorb the teachers of Ashram Shalas in the schools run by the District Panchayats. Pursuant to which, in the year 1992 both the petitioners had applied for absorption in Panchmahal district Panchayat but they were not absorbed though another similarly situated teachers were absorbed. In the year 1996 and 1998 again, the petitioners had applied but no response was given to the petitioners by the respondent authority. However, the respondent No.1 by his letter dated 10th April, 2000 forwarded the papers to the respondent No.2 to absorb the petitioners in the school run by Panchmahal District Panchayat. According to the petitioners, similarly situated other twelve teachers have been absorbed by order dated 14th December, 1999 and 26 other such teachers have also been absorbed in Dahod District Panchayat by the same order. In short, the grievance of the petitioners is that inspite of the clear circular dated 23rd August, 1973, the case of the petitioners have not been considered by respondent Nos. 1 and 2 and the said circular dated 23rd August, 1973 has been placed on record by the petitioner with draft amendment which is taken on record. Today when the matter is taken up for hearing, learned AGP Mr.Manisha Lavkumar appearing for the respondent No.2 has placed on record Government Resolution dated 8th December, 1999 wherein, the State Government has decided to reconsider the earlier Government Resolution dated 23rd August, 1973 and ultimately, a resolution dated 23rd August, 1973 has been quashed and set aside. However, it was resolved that whatever earlier orders were passed after complying the provisions of Government Resolution dated 23rd August, 1973, will not be adversly affected on account of the said resolution dated 8th December, 1999. On the basis of this fact, learned advocate Mr.Supehia has submitted that no doubt that vide resolution dated 8th December, 1999 the Government has cancelled the earlier Circular dated 23rd August, 1973 and according to the submission of Mr.Supehia, the petitioners were made repeated request to the respondent No.1 & 2 to absorb them in Panchmahal District Panchayat in the year 1992, 1996 and 1998 but their case were not considered and similar situated other teachers were absorbed by the respondents by order dated 14th December, 1999. Therefore, according to Mr.Supehia, learned advocate for the petitioner this circular dated 8th December, 1999 will not apply adversely and the case of the petitioners for absorption is prior to 8th December, 1999 which was not considered and on that relevant time, this Circular was not in force and despite this also,the case of the petitioners were not considered by the respondents. Mr.M.R.Shah, learned advocate for the respondent No.1 has submitted that unless and until the case of the petitioners recommended by the respondent No.2 to the respondent No.1, the respondent No.1 will not be able to absorb the petitioners. Ms.Manisha Lavkumar, learned AGP submitted that absorption is subject to certain conditions which requires to be considered on merits of the teachers and that cannot be examined by respondent No. 1 & 2 as per the Government procedure and policy which has been decided by the State Government. Considering this submission of both the learned advocates, according to my opinion, if suitable direction can be issued to respondent No. 1 & 2 to consider the case of the petitioners in light of the Government Resolution dated 23rd August, 1973 according to the conditions of absorption as per the Government Circular, would certainly meet the ends of justice. It is also made clear that cancellation of Government Resolution dated 23rd August, 1973 by Government Resolution dated 8th December, 1999 cannot be now adversely affect the rights of the petitioner in light of the facts that the petitioners had already applied for absorption in the year 1992, 1996 and 1998 and at that relevant time, on 14th December, 1999, other 38 similarly situated teachers have been absorbed in pursuance of the Government Resolution dated 23rd August, 1973 and therefore, considering this fact, it is directed to the respondent Nos. 1 & 2 to consider the case of the petitioners for absorption as per the Government Resolution dated 23rd August, 1973 within period of three months from today. However, it is clarified that the respondent Nos. 1 & 2 shall consider the case of the petitioners without taking into account the Government Resolution dated 8th December, 1999. #. If any adverse order will be passed by the respondent Nos. 1 & 2 against the petitioners, the same shall have to be communicated to the petitioners in writing and it would be open to the petitioners to challenge such adverse order before appropriate forum in accordance with law. Rule is made absolute in both these petitions accordingly. Date : 24-11-2000 [H.K.Rathod, J.] #kailash#