LPA/611/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 611 of 2007 In SPECIAL CIVIL APPLICATION No. 9233 of 2006 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= RITAMBEN MADHUSUDAN THAKKAR - Appellant(s) Versus SECRETARY,NORTH GUJARAT YUVAK MANDAL & 4 - Respondent(s) ========================================================= Appearance : MR.RAJESH B SONI for Appellant MR DN KIRATSATA for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 3rd March, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. LPA/611/2007 2/5 JUDGMENT This Appeal preferred under Clause 15 of the Letters Patent arises from the judgment and order dated 29th November, 2006 passed by the learned Single Judge in Special Civil Application No. 9233 of 2006. The appellant-writ petitioner was engaged by the respondent no.1-Educational Trust as a Teacher in the respondent no.2-Primary School. It appears that after certain intermittent services, her service was terminated. Feeling aggrieved, the appellant approached the Gujarat Primary Education Tribunal [hereinafter referred to as, “the Tribunal”] in Application No. 90 of 1991. The Tribunal, by its Order dated 14th February, 1992, recorded a finding that the appellant had, though intermittently, served for more than a year. She, therefore, could not be said to be a temporary employee. She was entitled to protection under Section 40B of the Bombay Primary Education Act, 1947 [hereinafter referred to as, “the Act of 1947”]. The action of terminating her service was set- aside. The respondent-Trust was directed to treat the appellant in continuous service; to pay her the vacation pay and to pay her regular pay. It further appears that the appellant was not paid salary in the regular pay scale sanctioned for a trained teacher. She, therefore, approached the Tribunal in Application No. 215 of 1997. The said claim has been rejected by the LPA/611/2007 3/5 JUDGMENT Tribunal by impugned judgment and order dated 4th July, 2005. The judgment of the Tribunal has been confirmed by the learned Single Judge. Therefore, the present Appeal. The Tribunal and the learned Single Judge have held that the appointment of the appellant was not regular, that is, it was not in consonance with Schedule-F of the Act of 1947; and that she did not possess the requisite qualification. She was, therefore, not entitled to the pay of a trained teacher. Mr. Soni has assailed the judgment of the learned Single Judge. He has submitted that once the Tribunal had, by order made in Application No. 90 of 1991, held that the appellant was a permanent servant and that her appointment was regular, it was not open for the Tribunal to hold to the contrary. The appellant is, therefore, entitled to the pay of a trained teacher. He has submitted that Schedule-F to the Act of 1947 does not envisage a public advertisement and calling of applications from eligible candidates. The appointment of appellant cannot be said to be contrary to Schedule-F of the Act of 1947. He has further submitted that the prevalent circulars issued by the State Government did permit candidates possessing qualification of Graduate, B.Ed as a Primary School Teacher. The appellant, therefore, cannot be said to be an untrained teacher. LPA/611/2007 4/5 JUDGMENT Schedule-F to the Act of 1947 provides for conditions of employment of teacher in private schools in the State of Gujarat. Clause [2] thereof provides for constitution of a Staff Selection Committee. Clause [6] thereof provides that, “..The management shall appoint only trained teachers who have passed the Secondary School Certificate Examination and also the primary training Certificate Examination.” It is not in dispute that the appellant does not possess the aforesaid qualification of primary training certificate examination nor was her appointment made after selection by the staff selection committee. In our opinion, the learned Single Judge as well as the Tribunal were right in holding that the appointment of the appellant was not in accordance with Schedule-F to the Act of 1947. Further, in the earlier order made in Application No. 90 of 1991, all that the Tribunal observed was that the appellant had in fact served for more than one year and that she was entitled to protection under Section 40-B of the Act of 1947. Neither did the Tribunal hold that the appointment of the appellant was regular nor that she was a trained primary school teacher. In above view of the matter, no case for interference is made out. The Appeal is dismissed in limine. LPA/611/2007 5/5 JUDGMENT {Ms. R.M Doshit, J.} {K.M Thaker, J.} Prakash*