STATE OF GUJARAT Vs. KUSUMBEN E BORASADA

JUDGEMENT

(1.) This Letters Patent Appeal, filed by the State of Gujarat, is directed against the judgment and order dated 18th January 1997 passed by the learned Single Judge whereby the Special Civil Application No. 3635 of 1982 was allowed. Through this Special Civil Application a relief was sought with regard to payment of pension to the teachers of Non-Government (Private) recognised and Grant-in-Aided Primary Schools Schools. Originally, in the Special Civil Application filed by Smt. Kusumben E. Borasada, the order dated 3rd November 1981 passed by State of Gujarat was challenged and she claimed to be a protected teacher. Later on, this claim was given up and it was pleaded by way of amendment that the pension was being paid to the similarly situated teachers in Non-Government (Private) and recognised grant-in-aided colleges, higher secondary schools and secondary schools but the same was denied in case of the teachers of the primary schools of the same type of Non-Government (Private) recognised and aided institutions imparting primary education. It appears from the impugned order, that the State Government and its functionaries did not dispute the factual position that pension was being paid to the teachers of Non-Government (Private) and recognised grant-in-aided colleges, higher secondary schools and secondary schools. In face of this situation, the learned Single Judge found that there was no basis for giving a discriminatory treatment to the teachers of the similarly situated institutions/schools imparting primary education, that it was a case of hostile discrimination, and the action of the respondent State in not giving the pensionary benefits to the teachers of recognised aided private primary schools was declared to be ultra vires of Articles 14 and 16 of the Constitution of India, and the respondent State was directed to extend the benefits of pension to the teachers of recognised aided private primary schools in the State of Gujarat. It was further directed that the petitioner's claim shall be worked out within a period of three months from the date of receipt of certified copy of the judgment and thereafter the petitioner shall be given the benefit of pension inclusive of arrears within next three months and it was made clear that in case the petitioner was a member of Provident Fund Scheme, she has to refund to the State the share of contribution of the employer, if any, together with the interest thereon, and the Rule was made absolute accordingly.

(2.) Against this order dated 18th of January 1997 passed by the learned Single Judge, the State of Gujarat preferred this Letters Patent Appeal before this Court. This Letters Patent Appeal was time barred and the application seeking condonation of delay was rejected by an order passed in Civil Application No. 11548 of 1998 on 30th of December 1998. It was, therefore, recorded in this Letters Patent Appeal by the Division Bench that in view of the order passed in Civil Application No. 11548 of 1998 this appeal does not survive. The State of Gujarat had challenged the order dated 30th of December 1998 and the order passed on the Civil Application No. 11548 of 1998, before the Supreme Court by way of Special Leave Petition. The leave was granted on 2nd of August 1999 and on the same date Civil Appeal No. 4291 of 1999 was decided by the Supreme Court. The order dated 2nd of August 1999 passed by the Supreme Court is reproduced as under :

(3.) The Supreme Court categorically observed in the above order that keeping in view the fact that the question involved in this matter was likely to affect the large number of persons and keeping in view the larger interest, the delay in filing the Letters Patent Appeal was condoned and that the matter required to be finally decided by the High Court (on merits) and accordingly the Letters Patent Appeal was sent back to the High Court for decision on merits, after setting aside the judgment and order under challenge. Thereafter, on 29th of November 1999, this appeal was admitted by the Division Bench of this Court. When the matter came up before us for hearing on 26th of July 2001, during the course of hearing, we found that in the impugned judgment and order dated 18th of January 1997 it was mentioned that the teachers of Non-Government recognised grant-in-aid colleges, higher secondary schools and secondary schools were being paid the pension and the learned Single Judge has found that for the purpose of pension the primary school teachers of similar institutions could not be discriminated. However, the Government Resolutions to the effect that pensionary benefits to be given to the teachers of Non-Government recognised grant-in-aided private colleges, higher secondary and secondary schools were not produced. Time was therefore granted to the learned Assistant Government Pleader to produce such Government Resolutions and the matter was posted today, i.e., 31st July 2001. The learned Assistant Government Pleader, Ms. Harsha Devani has today produced before us nine Government Resolutions passed on different dates from 10th of October 1961 to 18th of January 1991, and we find that the first 5 common Resolutions dated 10th October 1961, 21st December 1971, 15th October 1984, 17th December 1987 and 24th October 2000 are the relevant Government Resolutions showing that pensionary benefits had been made admissible to the teachers of Non-Government recognised grant-in-aided private colleges, higher secondary and secondary schools. The only submission, on the basis of which the judgment of the learned Single Judge has been assailed before us, is that the Government had never passed any Resolution for giving pensionary benefits to the teachers of the institutions imparting primary education, and the only reason which has been given in the reply which has been filed in the Letters Patent Appeal, is the reason relating to the financial constraints. Such reason was also advanced before the learned Single Judge coupled with the submission that there was no policy decision by the Government to give pensionary benefits to the teachers of the institutions imparting primary education in the private but aided institutions of this nature.