SCA/9916/2001 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9916 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================= === 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 the civil judge ? ========================================= === JASWANTSINH JAISINH PARMAR - Petitioner(s) Versus DIRECTOR OF PRIMARY EDUCATION & 3 - Respondent(s) ========================================= ===Appearance : MR BP GUPTA for Petitioner(s) : 1, MS ASMITA PATEL ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 3 - 4. ========================================= === CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/05/2008 ORAL JUDGMENT 1. This petition under Articles 226 and 227 of the SCA/9916/2001 2/9 JUDGMENT Constitution of India is filed by the petitioner with a prayer to quash and set aside the order dated 8.2.1999 passed by the Gujarat Primary Education Tribunal in Application No.148/1996 and order dated 20th July, 2001 passed in Review Application No.4/1999 at Annexure A and B respectively and further be pleased to declare that the petitioner is a protected teacher and is entitled for retiral benefits like pension, gratuity etc. on par with other teachers who have retired as protected teachers or secondary teachers. 2. It is the case of the petitioner that petitioner was having qualification of C.P.Ed. and appointed as a secondary teacher in Sarvoday High School, Santroad, Taluka:Godhra on 19.6.1959, where the petitioner served as a secondary teacher till 13.6.1965. According to the petitioner, the above fact is reflected in the service book maintained by the Sarvoday High School at relevant point of time. On being relieved from service w.e.f. 13.6.1965 from Sarvoday High School, Santroad, Taluka: Godhra, the petitioner was appointed as a teacher at the J.M. High School, Thasra and the appointment letter was given on 12.4.1965 and the petitioner joined as Assistant Teacher on 14.6.1965. It is the case of the petitioner that, the petitioner used to teach subjects of English and Hindi for primary school and was also teaching other subjects. Not only that but the petitioner imparted education in secondary section since the petitioner had a qualification of C.P.Ed. and regularly taught physical education in standard VIII to XI. The petitioner retired from service on 31.10.1992 on attaining superannuation. 2.1. The petitioner requested the respondent authorities to SCA/9916/2001 3/9 JUDGMENT grant benefit of retiral dues on the basis of rendering service initially in secondary section at Sarvoday High School upto 13.6.1965 and thereafter imparting education in the subject of physical education in the secondary section at J.M.Desai High School, Thasra and also simultaneously in the primary section at the very same school. 2.2. The petitioner along with the representation submitted relevant certificate about his service in both the above schools namely Sarvoday High School and J.M.Desai High School but the said representation was rejected on 19.2.1994 and thereafter application was preferred before the Gujarat Primary Education Tribunal (hereinafter referred to as 'Tribunal') by filing application No.148/1996 which came to be rejected on 8.2.1999 and later on review application was preferred by the petitioner being Review Application No.4/1999 which also came to rejected on 20th July, 2001. 2.3. The application preferred by the petitioner before the Tribunal came to be rejected mainly on the ground that no relevant material was produced revealing that whether the petitioner had rendered service in a secondary school. The second ground of rejection of the application of the petitioner was that the petitioner had not submitted an application before the competent authority for seeking benefit as a protected teacher and, therefore, it was held that petitioner was not entitled to get retiral dues on the basis of a protected teacher or at par with other secondary teachers though otherwise similarly situated. 3. It is to be noted that in a Review Application No.4/1999 SCA/9916/2001 4/9 JUDGMENT preferred by the petitioner before the Tribunal, the petitioner had produced relevant materials in the form of service book and also other certificates and submitted that in view of the service rendered by the petitioner in the secondary section prior to 13.6.1965, the petitioner was entitled to get benefit of Government Resolution dated 4.6.1965 as amended on 14.4.1970 which provide that those teachers serving in the secondary section of the school on or before 29.3.1965 continue to serve in a primary section of the same school or if joined in any other private school either in primary or secondary section, pay scale of such teachers was required to be protected. 4. However, the Tribunal reiterated its earlier view and rejected the application by incorrectly interpreting the provision of the above two Government Resolutions. One more rejection of review application was belated claim raised by the petitioner for seeking benefits of a protected teacher i.e. in the year 1992. 5. When the matter was called out for final hearing on 9.4.2008, this Court directed learned advocate for the petitioner to produce original service book of the petitioner to justify his claim with regard to rendering of service by the petitioner prior to June 1965 in Sarvoday High School, Santroad, Taluka:Godhra. 6. Today when the matter is called out, the original service book maintained by the Sarvoday High School, Santroad, Taluka:Godhra and J.M.Desai, Thasra are produced before this Court. SCA/9916/2001 5/9 JUDGMENT 7. Learned AGP Ms. Asmita Patel and Shri H.S.Munshaw for respective respondents submits that the claim of the petitioner is belated one and even on merit since the petitioner had not produced certificate of a protected teacher at relevant point of time, it cannot be believed that the petitioner was serving in a secondary section prior to cut of line of June, 1965 and entitled for the benefits claim in this petition. 7.1. Learned advocates for the respondents further submit that the Tribunal was right in rejecting the claim of the petitioner inasmuch as, no relevant documents in support of the claim was produced. Not only that but till the service rendered by the petitioner at J.M.Desai High School, Thasra and on the date of superannuation i.e. on 31st October, 1992, the petitioner never made any attempt to obtain the certificate of protected workman and, therefore, rejection of the application along with the review application by the Tribunal do not require any interference in exercise of power under Articles 226 and 227 of the Constitution of India in as much as, no error apparent on the record much less in error of law committed by the Tribunal. 8. Having heard learned counsels appearing for the parties and considering the submissions including the impugned orders passed by the Tribunal dated 8.2.1999 in Application No.148/1996 and order in Review Application No.4/1999 dated 20th July, 2001 and perusal of the original service book produced before this Court as maintained by the then Sarvoday High School, Santroad, Taluka:Godhra and J.M.Desai High School, Thasra clearly reveal that the petitioner has SCA/9916/2001 6/9 JUDGMENT rendered service as a secondary teacher prior to 14.6.1965 and thereafter also having qualification of C.P.Ed. imparted education in physical education to standard VIII to XI till he retired. 8.1. It is also reflected that the petitioner has rendered service in a primary section after 14.6.1965 at J.M.Desai High School, Thasra and subjects imparted were Hindi and English. Thus, the facts are clear to the extent that the authentic and official record reveal that the petitioner had served as a secondary teacher in the capacity of Assistant Teacher as reflected from the service book maintained by the Sarvoday High School, Santroad, Taluka:Godhra and later on in secondary section as well as in primary section at J.M.Desai High School, Thasra. 9. Therefore, the finding of the Tribunal with regard to the non-production of relevant material and evidence in support of the claim cannot be accepted inspite of production of service book and relevant material along with review application. Therefore, according to this Court, the Tribunal concerned has failed to appreciate and correct the mistake apparent on the face of record and denying the benefits to the petitioner. So far as entitlement of the petitioner to claim retiral dues on the basis of pay scale to be given to a protected teacher or on par with secondary teacher, Government Resolution dated 4.6.1965 came to be amended subsequently on 14.4.1970 which clearly provided that pay scale of the secondary teacher to be given to those teachers who had served as a secondary teacher prior to 29.3.1965 irrespective of the fact whether subsequent to the above date such teacher has joined in any private school either in primary section or secondary. SCA/9916/2001 7/9 JUDGMENT 10. In view of the above, I am of the opinion that the petitioner has established his claim to receive the retiral dues on the basis of rendering qualifying service as a teacher in the secondary school and is entitled for benefit of Government Resolution dated 4.6.1965 as amended on 14.4.1970. 11. The requirement of submitting a certificate of protected teacher, no way mandates the teacher to apply at relevant point of time and claim the benefit when the fact speaks for itself no other evidence is necessary about rendering service by a teacher in the secondary school only by registering his name in the registry maintained by the DEO or by submitting any application. The original service book produced by the petitioner and not doubted or disputed by anyone, establishes and fortifies the claim of the petitioner and, therefore, this petition is allowed and the impugned orders of the Tribunal are quashed and set aside on the ground that the Tribunal failed to consider relevant factual material about service of the petitioner rendered in secondary section. 12. Learned advocate appearing for the respondents submitted that in the above circumstances, it will be just and proper to remand the case to the Tribunal for taking decision afresh in light of the relevant material produced by the petitioner cannot be accepted inasmuch as in an application for review the very aspect was considered by the Tribunal on the basis that no evidence was produced and since certificate of a protected teacher issued by the competent authority was not produced, no case was made out by the petitioner. Even otherwise also the matter is of year 2001 and the petitioner is SCA/9916/2001 8/9 JUDGMENT aged about 72 years and not succeeded before the Tribunal, inspite of the fact that the petitioner had produced relevant authentic material in support of rendering service as secondary teacher in two different schools. To relegate the petitioner at this juncture for deciding the whole issue will be futile exercise and harassment to the petitioner who could establish before this Court about his claim of getting benefit of retiral dues on par with protected secondary teacher in the school by producing the original and genuine service book. 12.1. Therefore, in exercise of power under Articles 226 and 227 of the Constitution of India, I am of the opinion that grievances of the petitioner can be redressed as held and observed in the above paragraphs and respondents are directed to refix the pension, gratuity and other retiral dues of the petitioner on the basis that the petitioner has rendered the service in a secondary school and as per the clarification issued by Dy. Secretary, Education and Labour of State of Gujarat on 14.4.1970 by amending para 4 of Government Resolution dated 4.6.1965. 12.2. The respondents are further directed that after refixation of the pension of the petitioner on above basis, difference of the pension, gratuity and other retiral dues are to be calculated and determined and to be paid to the petitioner within eight weeks from the date of receipt of writ/order by this Court. 13. Rule is made absolute with no order as to costs. [ANANT S. DAVE, J.] SCA/9916/2001 9/9 JUDGMENT //smita//