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Gujarat High Court
Krushnakant vs State on 2 August, 2011
Author: Abhilasha Kumari,

Gujarat High Court Case Information System

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CA/16307/2010 21/ 21 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CIVIL

APPLICATION - FOR DIRECTION No. 16307 of 2010

In

SPECIAL

CIVIL APPLICATION No. 1077 of 2010

With

CIVIL

APPLICATION No. 16642 of 2010

In

SPECIAL CIVIL APPLICATION No. 8844 of 2010

With

CIVIL

APPLICATION No. 16777 of 2010

In

SPECIAL CIVIL APPLICATION No. 5963 of 2010

For

Approval and Signature:

HON'BLE

SMT. JUSTICE ABHILASHA KUMARI =====================================================

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 ?

=====================================================

KRUSHNAKANT

KANTILAL PATEL & 15 - Petitioner(s)

Versus

STATE

OF GUJARAT & 5 - Respondent(s)

===================================================== Appearance :

CIVIL

APPLICATION No. 16307 of 2010

MR

GM JOSHI for applicants Mr.P.K.Jani,learned GOVERNMENT PLEADER with Mr.Janak Rawal,learned Assistant Government Pleader for Respondent(s) : 1 - 4. MR MK VAKHARIA learned Senior Standing Counsel for the Central Government for Respondent(s) : 5,

MR AS SUPEHIA for Respondent(s) : 6,

CIVIL

APPLICATION No. 16642 of 2010

MR

GM JOSHI for applicants

Mr.P.K.Jani,learned

Government Pleader with Mr.Janak Rawal,learned Assistant Government Pleader for respondents Nos.1 to 4 and 6.

Mr.Hriday

Buch, learned Senior Standing Counsel for the Central Government for respondent No.5

CIVIL

APPLICATION No. 16777 of 2010

Ms.Kruti

M.Shah for applicants

Mr.P.K.Jani,learned

Government Pleader with Mr.Janak Rawal,learned Assistant Government Pleader for respondents Nos.1 and 2.

Mr.M.K.Vakharia,learned Senior Standing Counsel for the Central Government for respondent No.5.

=====================================================

CORAM

:

HON'BLE

SMT. JUSTICE ABHILASHA KUMARI

Date

: 27/12/2010

COMMON

ORAL JUDGMENT

1. Rule

in Civil Application No.16307/10. Mr.Janak Rawal, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents Nos.1 to 4. Mr. M.K.Vakharia, learned Senior Standing Counsel for the Central Government waives service of notice of Rule on behalf of respondent No.5. Mr.A.S.Supehia, learned advocate waives service of notice of Rule for respondent No.6.

2. Rule

in Civil Application No.16642/10. Mr.Janak Rawal, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents Nos.1 to 4 and 6. Mr.Hriday Bunch, learned Senior Standing Counsel for the Central Government waives service of notice of Rule on behalf of respondent No.5.

3. Rule

in Civil Application No.16777/10. Mr.Janak Rawal, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents Nos.1 and 2. Mr. M.K.Vakharia, learned Senior Standing Counsel for the Central Government waives service of notice of Rule on behalf of respondent No.5.

The

rest of the respondents, in each matter, have been served but none appears today on their behalf when the matters are taken up.

4. In

all these applications, the applicants (original petitioners) have impugned communication dated 10-12-2010 issued by the respondent No.4, Gujarat Council for Education Research and Training ("GCERT" for short) whereby the services of the applicants are sought to be terminated retrospectively, with effect from 1-4-2010.

5. The

applicants have filed different petitions which are pending in the Court, wherein the main challenge is to the advertisement dated 4-6-2010 for engagement of Resource Teachers for special children. Notice had been issued in these petitions and in Special Civil Application No.5963 of 2010, status quo has been ordered to be maintained regarding the service conditions of the petitioners therein. In Special Civil Application No. 8844 of 2010, the Court had initially granted ad-interim relief regarding protection of the service conditions of the petitioners. However, this order has not been extended from time to time.

6. The

applicants herein are Special Teachers who have acquired qualifications for teaching special children classified in various categories, facing one or other kind of physical or mental challenge. The Central Government had formulated a Scheme known as Scheme of Integrated Education for the Disabled Children ("IEDC" for short). Under this Centrally sponsored Scheme, the Central Government was to assist the States/Union Territories for implementation of the Scheme on the basis of the criteria laid down therein. Assistance for all the items covered in the Scheme would be on 100% basis, but assistance for the programme would be conditional on prior creation of technically qualified staff, as laid down in the Scheme. This Scheme was to be implemented through-out the States/Union Territories/ Autonomous Organisations of stature having experience in the field of education and/or rehabilitation of the disabled. Under the Scheme, the Education Department of the State Government was to recruit teachers for this purpose by following the normal procedure of recruitment, and the Scheme envisaged that the same Scales of pay would be available to the teachers of the corresponding category in that State/Union Territory would be given to the special teachers, namely, the applicants. The IEDC Scheme was sought to be closed down by the Central Government with effect from 31-3-2009 and a new Scheme, namely, Inclusive Education of the Disabled at Secondary Stage ("IEDSS" for short) was formulated, which was to come into effect from 1-4-2009. Apprehending that the services of the applicants would be terminated, and others in their place would be recruited on contract basis on a fixed amount, the applicants have filed the above-mentioned petitions which are pending adjudication. In the meanwhile, the impugned communications have been issued, which has led to the filing of the present Civil Applications.

7. Mr.G.M.Joshi,

learned advocate for the applicants in Civil Application No.16307 of 2010, and Civil Application No.16642 of 2010, and Ms.Kruti M.Shah, learned advocate for the applicants in Civil Application No.16777 of 2010, have made detailed submissions, the gist of which is reproduced herein-below:

(a) That

the applicants are qualified Special Teachers holding the requisite expertise to teach special children suffering from various disabilities.

(b)

That the applicants are rendering their services to special children in the primary segment, suffering from various disabilities, under the IEDC Scheme formulated and funded by the Union of India, as implemented by the State of Gujarat.

(c) In

the petitions filed by them, the applicants have challenged the action of the respondents in introducing the IEDSS Scheme on the basis of which the services of the applicants are sought to be terminated.

(d) During

the pendency of the petitions, respondent No.4 has issued the impugned communication dated 10-12-2010, which makes it clear that the services of the applicants are sought to be terminated with retrospective effect, in spite of the fact that they have worked throughout and are still continuing to work, as of date.

(e) That

the concept of retrospective termination of services is unknown in law, and the said action is highly arbitrary and illegal therefore, the said communication may be stayed.

(f)

That subsequently, after directions of the Court to the Union of India, the amount has been deposited by the said respondent and salaries have been paid to the applicants upto 31-3-2010. Thereafter, no salary has been paid to the applicants, though they are working with the respondents.

(g) That

even otherwise, the full amount of salary, as paid to regular teachers, is not being paid to the applicants as per the IEDC scheme and they are being employed on contractual basis, on a fixed remuneration.

(h) That

the services of the applicants are sought to be terminated retrospectively on the ground that the IEDC Scheme has come to an end and has been replaced by IEDSS Scheme which only covers the special children at the secondary level. Insofar as special children in the primary segment are concerned, their education is to be looked after under the IEDC Scheme under which the applicants have been employed, as per the guidelines in the Scheme of Sarva Shiksha Abhiyan formulated by the State Government, therefore, the services of the applicants are still required.

(i) That

by terminating the services of the applicants, the respondents have totally over-looked the needs of the special children in the primary segment, which is the duty and responsibility of a Welfare State, as enunciated in the judgment of the Supreme Court in Suchita Srivastava v.Chandigarh Administration, (2009) 9 SCC 1.

(j) That

further, the action of the respondents in giving one day breaks to the applicants is arbitrary and illegal, therefore, the prayers made in the application may be granted.

8. Strongly

opposing the application, Mr.P.K.Jani, learned Government Pleader for respondents Nos. 1 to 4 and 6 in Civil Application No.16642 of 2010 has submitted :

(a) That

the petition (Special Civil Application No.8844/2010) has been filed on 30-7-2010 and the prayers made therein reveal that it is directed against the advertisement issued by respondent No.6.

(b) That,

as is seen from order dated 30-7-2010 passed in the said petition appointment orders have been issued and approximately 70 appointments, out of 580 persons appointed in the Sarva Shiksha Abhiyan Scheme, have been made from the categories of the applicants.

(c) That,

as such, the Civil Applications are not maintainable as they are based upon a separate cause of action.

(d)

That the State Government and respondent No.4 are merely acting as facilitators/nodal agencies between the Union of India and different NGOs and Trusts, and there is no relationship of employer and employee between the State Government, and respondent No.4, and the applicants.

(e) That

the impugned communication dated 10-12-2010 only reiterates the factual position regarding the stopping of the IEDC Scheme, upon coming into operation of the IEDSS Scheme, with effect from 1-4-2009. The said communication has been issued in order to ensure that the different Trusts/Agencies, NGOs do not create further complications, which would have financial implications upon the State Government by continuing the applicants beyond the period of 1-4-2009.

(f) That

the said communication has been issued only to ensure that the financial burden should not be saddled upon the State Government.

(g)

That the judgment cited by the learned counsel for the applicants is not relevant in the facts and circumstances of the case as the State Government is a Nodal Agency and is not the employing authority of the applicants. As such, the applicants cannot have any cause of action against the State and respondent No.4. As the State of Gujarat has not issued any appointment orders to the applicants, the applications may be dismissed.

9. Mr.M.K.Vakharia,

learned Senior Standing Counsel for the Central Government, Mr.Hriday Buch, learned Senior Standing Counsel for the Central Government and Ms.Nita Panchal, learned Central Government Standing Counsel representing the respondent-Union of India, in the above-mentioned Applications, have made joint submissions, the crux of which is reproduced hereinbelow:-

(a)

That if the First Scheme i.e. IEDC Scheme is perused, it is clear that the Central Government is the assisting authority and, in fact, it is the State Government, which is the implementing authority.

(b) Though

the Funds for the Scheme are provided by the Central Government, it is the State Government that has to disburse the salaries of the applicants, as per the Scheme.

(c) That,

the ultimate implementation of the Scheme as well as the entire recruitment process, rests upon the State Government. As per the Scheme, the same Scales of Pay as are being given to regularly appointed Teachers under the State Government are to be given to the persons appointed under the Scheme.

(d) That

the First Scheme i.e. IEDC has been terminated with effect from 31-3-2009 by the Central Government, and the State Government has been informed well in advance regarding this aspect, by letter dated 21-10-2008, which has been received by the State Government on 7-11-2008.

(e)

The IEDC Scheme has now been replaced by the IEDSS Scheme, with effect from 1-4-2009. In this view of the matter, and as prior intimation regarding stoppage of earlier Scheme, under which the applicants have been appointed, was given to the State Government, it was incumbent upon the State Government to have ensured that the applicants are not permitted to work beyond 1-4-2009, as the scheme under which they were appointed has been closed down.

(f) That

the Union of India has been directed to deposit an amount of Rs.34 crores towards the salary of the applicants with effect from 1-4-2009, till date, which has already been done. However, the responsibility regarding the said amount is to be ascertained at the time of the final decision of the petitions which are pending in this Court. This aspect is subject to the contentions available, and to be raised, by the Central Government in the petitions, at the time of final hearing.

(g) That

the Union of India has filed Letters Patent Appeals against order dated 28-4-2010 passed in Special Civil Application No.365 of 2010 and other allied matters and the order passed in other two Civil Applications whereby directions have been issued for payment of the above-mentioned amount.

(h) That

the responsibility for continuing the applicants beyond 1-4-2009 rests solely upon the State Government as the Central Government had wound-up the IEDC Scheme with effect from 31-3-2009 and had informed the State Government, accordingly. The State Government was in the knowledge of the fact that this Scheme has been wound up, therefore, insofar as the present applications are concerned, no cause of action arises against the respondent-Union of India.

10. I

have heard the learned advocates for the respective parties, perused the averments made in the applications and other documents on record. The prayers made in Special Civil Application No.8844 of 2010 and allied matters, inter alia, are mainly against the issuance of advertisement dated 4-6-2009 by respondent No.6 for engagement of Resource Teachers. Admittedly, the applicants were rendering their services at the time of filing the petitions and are doing so even today. It is not disputed that during the pendency of the petitions, respondent No.4 has issued the impugned communication dated 10-12-2010, whereby the services of the applicants are directed to be terminated with retrospective effect, from 1-4-2010. The record of Special Civil Application No.8844 of 2010 reveals that notice was issued on 30-7-2010 and status-quo in respect of the service conditions of the petitioners was ordered to be maintained till the returnable date. However, it appears that the order of status-quo was not renewed thereafter.

11. The

issue regarding the legality and validity of the action of respondent-Union of India in closing down the First Scheme with effect from 31-3-2009 and formulating a new Scheme i.e. IEDSS Scheme with effect from 1-4-2009, are the subject matter of challenge in all the petitions, therefore, it would not be appropriate to go into these aspects for the purpose of deciding the present Applications.

12. The

main grievance of the applicants as has been ventilated in these applications, is that during the pendency of the petitions, their services are sought to be terminated retrospectively with effect, from 1-4-2010.This is the only issue that is required to be addressed in the present Applications.

13. There

is no doubt regarding the fact that the IEDC Scheme under which the applicants were appointed has been put to an end by the Union of India with effect from 31-3-2009, and the said Scheme has been replaced by the IEDSS Scheme with effect from 1-4-2009. There is also no dispute regarding the fact that Funds for both these Schemes are provided by the respondent-Union of India. Though the learned Government Pleader has submitted that the State Government, as well as respondent No.4, are only the facilitators/nodal agencies, this aspect need not be decided in the present applications, as it would have certain implications upon the issues pending adjudication in the petitions. It is not disputed that the respondent-Union of India has informed the State Government by letter dated 20-10-2008, regarding closure of the IEDC Scheme, with effect from 31-3-2009, and its replacement by IEDSS Scheme from 1-4-2009. This letter has been received by the State Government on 7-11-2008. For reasons best known to the State authorities, the applicants have been permitted to continue to work till date. This aspect has not been disputed by the learned Government Pleader.

14. By

the impugned communication dated 10-12-2010 issued by respondent No.4-GCERT to all Secretaries, Presidents and Trustees of different NGOs, it is stated that as the IEDC Scheme has been closed down with effect from 31-3-2009 and as the said Scheme has been replaced by IEDSS Scheme with effect from 1-4-2009, the services of the applicants will stand terminated retrospectively, with effect from 1-4-2010. From this communication prima facie, it appears that the State authorities had knowledge of the closure of the IEDC Scheme and coming into force of the IEDSS Scheme, with effect from 1-4-2009. This communication is silent as to the state of affairs between 1-4-2009 and 1-4-2010 during which period the applicants have been rendering their services. The retrospective termination of the services of the applicant is directed with effect from 1-4-2010, and not earlier. This aspect may be related to the payment of salaries from the Funds provided by the respondent-Union of India, however,there is no clarification regarding the same in the impugned communication.

15. A

submission has been made by the learned Government Pleader that the impugned communication is merely clarificatory in nature, and it only apprises the NGOs and Trusts and their Agents regarding the factual position, so that no financial burden can be put on the coffers of the State Government. It has also been submitted that there is no jural relationship of employer and employee between the State authorities and the applicants. Though this submission need not be gone into and decided in detail in the present applications, one fails to understand, how the services of the applicants could be terminated if there is no relationship of employer and employee between the authorities issuing the impugned communication, and the applicants.

16. Coming

to the crux of the matter, that is the retrospective termination of the services of the applicants, the learned Government Pleader has not supported this action on the basis of any legal submissions or judicial pronouncements. In my considered view, the concept of retrospective termination is unknown to service jurisprudence, especially as the applicants have worked during the relevant period of time and are still continuing to work. There is no legal or valid reason for passing the impugned order of retrospective termination. Prima facie, it appears that the same has been done by the State authorities to cover up their own lapses by permitting the applicants to work even after the closure of the IEDC Scheme. This becomes evident from a reading of the impugned communication. Even otherwise, if the contents of communication dated 10-12-2010 are perused, no cogent or justifiable reason for the retrospective termination of the services of the applicants is stated, apart from a mention regarding the closure of the earlier Scheme and coming into force of the subsequent Scheme. Interestingly, the language of the said communication is in the present tense and is couched in a manner as though the termination would take place in the future, though it directs retrospective termination. The learned Government Pleader has failed to satisfy this Court regarding the legality or validity of the said communication.

17. In

view of the above discussion, and as the retrospective termination of the services of the applicants is unsustainable in law, it is directed that the implementation, operation and execution of the said communication dated 10-12-2010 issued by respondent - GCERT, in each application, is stayed, till the final decision of the respective petitions.

18. Insofar

as the rest of the prayers in the Applications are concerned, the applicants are at liberty to raise them in the respective petitions.

19. It

is made clear that no observation made by this Court be construed as having any bearing on the merits of the issues arising in the petitions. It is clarified that this order shall operate qua the applicants in these applications only.

20. The

applications are partly-allowed, to the extent indicated hereinabove. Rule is made absolute, accordingly. There shall be no orders as to costs.

(Smt.Abhilasha Kumari,J)

arg

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