- (1.) The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of an order passed by the Tribunal and for consequential reliefs as prayed for which reads as under : "A. Be pleased to allow this petition; B. Be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, by quashing and setting aside the judgment and order dated 11.11.2009 passed by the Hon'ble Gujarat Primary Education Tribunal, Ahmedabad in Application No.95 of 2008 and as a resultant effect thereof, be pleased to quash and set aside the order of termination / discharge dated 1.5.2008 (Annexure?B) and further be pleased to direct the respondents herein to pay consequential and incidental benefits forthwith; C. Pending admission, hearing and final disposal of this petition, be pleased to stay the execution, implementation, operation and enforcement of the impugned order dated 11.11.2009 (Annexure?A) and the impugned order of dismissal / discharge dated 1.5.2008 (Annexure?B) and further be pleased to direct the respondents to deposit, before this Hon'ble Court, the amount of backwages from 1.6.2008 to 24.9.2009 and the outstanding retirement benefits of this period; D. Be pleased to grant any other relief which deems fit and proper in the interest of justice:"
(2.) The case of the petitioner is that the petitioner was appointed in respondent No.2 - school run by respondent No.1 trust which is a registered trust and appointment is made by virtue of order dated 30.6.1988 at a fix pay of Rs.400/? per month which was then increased by an order dated 30.5.1989 and subsequently, by way of an order dated 30.6.1990, the services of the petitioner came to be regularized in the pay scale of Rs.950?20?1150?EB?25?1500 as untrained teacher and as such, right from the year 1988, the petitioner was serving as a teacher with respondent Nos.1 and 2 and the services came to be regularized. 2.1 It is the case of the petitioner that in the year 2003, on account of deficit students' strength, the services came to be terminated vide order dated 29.11.2003. As a result of this, the petitioner was constrained to approach the Gujarat Primary Education Tribunal, Ahmedabad by preferring an Application No.86 of 2003. During the said proceedings of application, the respondent Nos.1 and 2 gave a specific undertaking that the petitioner is to be treated as continued in the service and the services are not treated as terminated or discharged and if at all there is a reduction in number of students then, the procedure established by law will be followed. In view of the said categorical statement in the form of assurance, the Tribunal was pleased to dispose of the said application vide order dated 16.6.2004. As a result of this, the petitioner continued to discharge the services as a teacher and for a period of almost 20 years, his services being taken by the respondents. 2.2 It is the case of the petitioner that the petitioner's educational qualification is B.A. and STC and after obtaining the degree of Secondary Teacher Certificate from 1992 onwards, the petitioner was being paid and treated as a trained teacher by way of passing a specific order on 25.6.1992. Later on, surprisingly, the petitioner came to be terminated and discharged from the services vide order dated 1.5.2008 mainly on the ground that on account of economic loss being incurred by the respondents, the services of the petitioner are dispensed with and undisputedly, no procedure of whatsoever nature is observed and neither notice was issued nor hearing was given nor any specific approval was obtained and in complete violation of principles of natural justice, the services came to be dispensed with and thereby, 20 years' services have been put to an end by this kind of action. As a result of this, the petitioner was again to approach the Tribunal by way of an Application No.95 of 2008, inter?alia, challenging the action of the respondent authorities. 2.3 It is the case of the petitioner that a surprising stand is taken after almost a period of 20 years and even after regularizing the services, it seems that the petitioner is not having the qualification of PTC, is not entitled to have any protection and the authorities are not expected to follow the procedure prescribed under Schedule?VII and there is no applicability of Section 40(B) to be observed and, therefore, by relying upon a decision delivered by the High Court in one of the case, the Tribunal has also set at naught the application and held that since the petitioner is not having PTC qualification, is not entitled to have any protection under Section 40(B) and this is how the present petition has been brought before the Court for challenging the order passed by the respondent authorities as well as the Tribunal. 2.4 The petitioner has attained the age of superannuation on 25.9.2009 and, therefore, the question of reinstatement does not arise. However, the question of discontinuance which has got a consequential effect, said relief deserves to be granted by the moulding the relief and for that, the present petition has been dealt with finally at the request of both the learned advocates, since the petition has been admitted way back on 13.5.2010.
(3.) Mr.Hardik Raval, learned advocate appearing on behalf of the petitioner, has vehemently contended that there is a serious error committed by the Tribunal in not examining the action of the authority with a close look and such error of jurisdiction deserves to be corrected by granting the relief as prayed for. It has been submitted that the petitioner has been appointed by the respondent right from 1988, so much so that she has been regularized in the services and has been granted even a scale of trained teacher and throughout continued in the service and, therefore, now, at this stage, after these many years, it is not open for the appointing authority to contend that she is not having the PTC qualification. It has further been contended that by virtue of the decision of the Apex Court in case of Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel, reported in 2012 (O) GLHEL?SC 52105 , such contention is ill? founded in the mouth of the authority, who itself has appointed the petitioner and, therefore, on this ground alone, the impugned orders are required to be quashed and set aside. 3.1 Mr.Hardik Raval, learned advocate, has further contended that the petitioner is continued as a regularized trained teacher, cannot be allowed to be shunted off from the services in the manner in which the respondent authority did. In fact, previously, when on account of deficit strength of students, the services were put an end to in a summary manner which is constrained the petitioner to approach the Tribunal and the Tribunal as well has dealt with said application in which there is a specific undertaking and assurance given by the respondents that in case of need, the procedure established by law will be observed while dispensing with the services and at that time also, there was no issue raised by the authority in any manner about the petitioner is not having PTC qualification. In these set of circumstances, now the respondent cannot be allowed to take such a hyper?technical plea, since it was an appointment made by the respondent itself. This aspect ought not to have been ignored by the Tribunal before disposing of the application. Learned advocate has further contended that this issue of not having adequate qualification and then, on account of that termination is taking place, was never an issue about termination. On the contrary, this time termination is on account of financial constraint by respondent and, therefore, the reason is quite different from the order of termination and the order which has been passed by the Tribunal expanding the scope for respondent and, therefore, this jurisdictional error cannot be allowed to continue to operate. Hence, the orders impugned deserve to be quashed and set aside, in the interest of justice. 3.2 Mr.Hardik Raval, learned advocate, has further contended that the findings which have been arrived at are also erroneous in view of the fact that the factual matrix of a case which was dealt with by the High Court in past, is quite different from what has been on the case on hand and, therefore, when there is a difference of factual background, the same would make a world of difference in applying the ratio laid down by the Court by way of precedent and, therefore also, the error committed by the Tribunal since touching the route of exercise of jurisdiction, the same is required to be corrected. It has further been contended that there is a clear act of malafide exercise on the part of authority that previously on account of deficit of students' strength, the services were dispensed with and within a short time, after taking back in the services, despite undertaking and assurance and without following the procedure, on another ground the termination has taken place. On the contrary, this action itself smacks malafides and in the absence of any explanation even before the Tribunal, the orders are not sustainable in the eye of law. 3.3 Mr.Hardik Raval, learned advocate, has further submitted that respondent - institute is a recognized institute by the State authority and, therefore, it is expected to observe the Rules applicable and the provision of Schedule?F is also applicable and that Section 40(B) is a condition precedent to be observed while taking action of discontinuance. The procedure established by Section 40(B) is undisputedly not discussed as can be apparently seen from the order in question and, therefore, the impugned termination itself is without the authority of law and against the procedure established by law. Hence, the Tribunal has committed a serious error in not analyzing this situation. Hence, learned advocate has requested the Court to set aside the impugned orders and pass an order granting consequential effect. Learned advocate has submitted that the dismissal has taken place on 1.5.2008 and the petitioner has reached the age of superannuation on 25.9.2009 and, therefore, for this interregnum period only, the effect of back wages is to be given to the petitioner and since the apparent action is de?hors the law, by setting aside the same, the said consequential benefit must be paid as early as possible with a statutory interest and this submission is made which is well supported by a decision of this Court in the present proceedings itself and by inviting an attention to an order dated 2.9.2011, learned advocate has submitted that the claim has to be given with statutory interest. Resultantly, a request is made to the Court to allow the petition by appropriately moulding the relief. In support of his submissions, learned advocate has relied upon the decisions in case of Bhartiya Seva Samaj Trust (supra) and in case of Kapilbhai Govindbhai Patel and Anr. v. ArunabenMohanlal Naik and Ors., reported 2018 (1) GLR 92. ;