Gujarat High Court
Chhatbar Yasmin Agafkar vs Vahevaria Rashtriya Primary School … on 4 August, 2025
NEUTRAL CITATION C/SCA/2741/2013 JUDGMENT DATED: 04/08/2025 undefined IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 2741 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE SANDEEP N. BHATT ========================================================== Approved for Reporting Yes No ✓ ========================================================== CHHATBAR YASMIN AGAFKAR Versus VAHEVARIA RASHTRIYA PRIMARY SCHOOL THRO PRINCIPAL & ORS. ========================================================== Appearance: MS MAMTA R VYAS(994) for the Petitioner(s) No. 1 DS AFF.NOT FILED (R) for the Respondent(s) No. 1,3,4 MS. SURBHI BHATI, AGP for the Respondent(s) No. 4,5,6 - STATE MR MA KHARADI(1032) for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 7 NOTICE SERVED BY DS for the Respondent(s) No. 1,3 ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : 04/08/2025 ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocates for the
respective respondents waive service of notice of rule on
behalf of respective respondents. With the consent of the
parties, the matter is considered at length and disposed
of accordingly.
2. The present petition is filed by the petitioner for
seeking the following reliefs:
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“9(A) Your Lordships may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction
quashing and setting aside the order dtd. 26.6.2012 passed
by the Tribunal qua the Application Nos. 63/2006 and
94/2006 as also the order of termination dtd. 21.11.2006
passed by the respondent management and further be
pleased to direct the management to reinstate the petitioner
on his original post with continuity of service with full
backwages and interest thereon:
(B) Your Lordships may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction
holding that the petitioner is entitled for the pay scales of
untrained teachers from the date of appointment and
further be pleased to direct the management to pay the
same as prayed for in the Application No. 63/2006 with
interest;
(C) Pending admission, hearing and final disposal of the
present petition, be pleased to direct the respondent
institution to give adhoc appointment to the petitioner;
(D) Pending admission, hearing and final disposal of the
present petition, be pleased to direct the respondents to
reinstate the petitioner on his original post forthwith and
to pay the salary regularly every month,(E) Be pleased to pass such other and further relief as
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may be deemed fit by Your Lordships in the facts and
circumstances of the case and in the interest of justice.”
3. Brief facts as stated in the memo of the petition
are as under:
3.1 It is the case of the petitioner in this petition that
the petitioner is possessing the qualifications of SSC,
TTNC and was appointed as Assistant Teacher in the
respondent school on 06.02.1995. Since the respondent
management was paying only Rs. 1,000/- as the salary,
the petitioner and some other similarly teachers
requested the management to pay the salary in the
regular pay scales but since the respondent management
did not consider the requests of the teachers, the
petitioner filed an Application No. 63 of 2006 before thePrimary Education Tribunal. It is further the case of the
petitioner in this petition that since the petitioner
approached the Tribunal, the management on the ground
that the petitioner is an untrained teacher, terminated
his services. The petitioner, therefore, again approached
the Primary Education Tribunal challenging the
termination order by way of filing an Application No. 94
of 2006. Both the aforesaid applications were heard
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together and the Tribunal rejected both the matters.
Hence, the present petition has been preferred.
4. Heard Ms. Mamta Vyas, learned advocate for the
petitioner, Mr. M.A. Kharadi, learned advocate for the
respondent No.2 and Ms. Surbhi Bhati, learned Assistant
Government Pleader for the respondents – State.
5. Ms. Mamta Vyas, learned advocate for the petitioner
has drawn my attention towards various pleadings,
documents annexed with the petition as well as towards
the order passed by the Tribunal and has submitted that
while terminating the services, though the institution is
required to follow the procedure prescribed in the law
but the services of the petitioner are terminated without
following any procedure of law and hence the order of
termination as well as the order of Tribunal are required
to be quashed and set aside. She has further submitted
that in fact, there are two classifications trained and
untrained. If the petitioner is appointed as untrained
teacher, the petitioner is entitled to get the pay scales
fixed by the Government from time to time. She has
further submitted that while considering the matter, the
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Tribunal has totally overlooked the provisions of law by
holding that as the petitioner is not possessing the
qualifications of PTC, the petitioner is not entitled for
the pay scale and no direction qua the payment of
salary is ordered. Therefore, on this ground also, the
order of the Tribunal is required to be quashed. She has
further submitted that the Tribunal ought to have
considered that the petitioner was appointed on
06.02.1995 as an Assistant Teacher by the respondent
No. 2 and the petitioner worked for 11 years and 5
months and got superannuated on 31.05.2022 and at no
point of time, any objection was raised by the
department with regard to the appointment and
qualifications of the petitioner. She has further submitted
that the petitioner has specifically pointed out that out
of 14 teachers except one teacher, all others are
possessing the qualification of untrained teachers and no
other teacher’s services are terminated except the three
teachers who had approached the Tribunal for regular
pay scale. In support of his submissions, she has
referred to the judgment of the Hon’ble Apex Court in
the case of Shantiniketan Hindi Primary School Vs. Pal
Hariram Ramavtar reported in AIR 2010 SC 656, and
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has contended that even the Hon’ble Apex Court has
directed that even untrained teachers are required to be
paid salary as prescribed by the Government from time
to time. Even this Court has by way of various orders,
directed to pay salary to untrained teachers. She has
also relied on the judgment of the Hon’ble Apex Court in
the case of Bhartiya Seva Samaj Trust Tr. Pres. And
Another Vs. Yogeshbhai Ambalal Patel and Another
reported in AIR 2012 SC 3285. She has further referred
to the order dated 27.06.2025 passed by this Court in
similar set of facts in Special Civil Application No.12217
of 2012 and allied matter and has submitted that the
present petition deserves to be allowed.
6. Per contra, Mr. M.A. Kharadi, learned advocate for
the respondent No.2 has referred to the impugned order
passed by the authority and has supported the same and
also supported the judgment and order passed by the
Tribunal by submitting that the Tribunal has not
committed any error in law and, therefore, no
interference is required to be called for by this Court.
He has, by referring to paragraph 6 of the impugned
order, submitted that financial situation of the school is
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not good. He has, by referring to the judgment of this
Court in the case of Madresa Abbasia Society Vs. State
of Gujarat reported in 2007 (1) GLH 604, submitted that
when the petitioner is not having requisite qualification,
the petitioner cannot claim such prayer as a matter of
right, and, therefore, he has submitted that the
impugned order of the Tribunal is in accordance with
law and does not warrant any interference by this Court
and, therefore, the present petition of the petitioner lacks
merit and is required to be dismissed.
7. Ms. Surbhi Bhati, learned Assistant Government
Pleader for the respondents – State has also contended
that considering the order passed by the Tribunal, the
Tribunal has not committed any error and as such,
essentially, the dispute is between the petitioner and the
respondent school and the State has limited role to play
and, therefore, she has submitted that this Court may
pass appropriate order after considering the submissions
of the petitioner as well as respondent.
8.1 I have considered the rival submissions made at the
bar. I have also considered the fact that there is no
doubt that out of total 14 persons, only three persons
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have been terminated as those three persons have
approached the Tribunal for some other prayer. It also
transpires that the petitioner has served more than 11
years and considering the fact that there are two
different heads for the payment of salary under the
specific provisions of the Act; one is untrained teachers
and another is trained teachers. Therefore, even
assuming that the petitioner is entitled to get salary of
trained teacher, then the petitioner is required to be
paid salary of untrained teacher, the Tribunal has not
considered this aspect and, therefore, there is apparent
error committed by the Tribunal.
8.2 Furthermore, considering the judgment of the
judgment of the Hon’ble Apex Court in the case of
Shantiniketan Hindi Primary School (supra), whereby it
is specifically held that even untrained teachers are
required to be paid salary as prescribed by the
Government from time to time. It also reflects from the
order of the Tribunal that the Tribunal has committed
gross error in not considering various aspects and,
therefore, it is fruitful to refer the judgments cited at
the bar by learned advocate for the petitioner.
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(i) In the case of Bhartiya Seva Samaj Trust Tr.
Press. And Another (supra), more particularly, paragraphs
14 to 22 are relevant, which read thus:
“14. In view to have greater emphasis, the 86th
Amendment in the Constitution of India was made in 2002
introducing the provision of Article 21-A, declaring the right
to free and compulsory education of the children between
the age of 6 to 14 years as a fundamental right.
Correspondingly, the provisions of Article 45 have been
amended making it an obligation on the part of the State
to impart free education to the children. Amendment in
Article 51-A of the Constitution inserting the clause-‘k’ has
also been made making it obligatory on the part of the
parents to provide opportunities for education to their
children between the age of 6 to 14 years.
15. Thus, in view of the above, it is evident that imparting
elementary and basic education is a constitutional obligation
on the State as well as societies running educational
institutions. When we talk of education, it means not only
learning how to write and read alphabets or get mere
information but it means to acquire knowledge and wisdom
so that he may lead a better life and become a better
citizen to serve the nation in a better way.
The policy framework behind education in India is anchored
in the belief that the values of equality, social justice and
democracy and the creation of a just and humane societyPage 9 of 26
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can be achieved only through provision of inclusive
elementary education to all. Provision of free and
compulsory education of satisfactory quality to children from
disadvantaged and weaker sections is, therefore, not merely
the responsibility of schools run or supported by the
appropriate Governments, but also of schools which are not
dependent on Government funds.
Every generation looks up to the next generation with the
hope that they shall build up a nation better than the
present. Therefore, education which empowers the future
generation should always be the main concern for any
nation.
16. Right to education flows directly from Article 21 and is
one of the most important fundamental rights. In Ashoka
Kumar Thakur v. Union of India (2008) 6 SCC 1, while
deciding the issue of reservation, this Court made a
reference to the provisions of Articles 15(3) and 21A of the
Constitution, observing that without Article 21A the other
fundamental rights are rendered meaningless. Therefore,
there has to be a need to earnestly on implementing
Article 21A.
Without education a citizen may never come to know of his
other rights. Since there is no corresponding constitutional
right to higher education – the fundamental stress has to
be on primary and elementary education, so that a proper
foundation for higher education can be effectively laid.
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Hence, we see that education is an issue, which has been
treated at length in our Constitution. It is a well accepted
fact that democracy cannot be flawless; but, we can strive
to minimize these flaws with proper education.
Democracy depends for its very life on a high standard of
general, vocational and professional education. Dissemination
of learning with search for new knowledge with discipline
all round must be maintained at all costs.
17. This Court in State of Tamil Nadu & Ors. v. K.
Shyam Sunder & Ors., (2011) 8 SCC 737 held as under:
“In the post constitutional era, attempts have been
made to create an egalitarian society by removing
disparity among individuals and in order to do so,
education is the most important and effective means.
There has been an earnest effort to bring education
out of commercialism/merchantilism.
The right of a child should not be restricted only to
free and compulsory education but should be extended
to have quality education without any discrimination
on economic, social and cultural grounds”.
18. In view of the above, education and particularly that of
elementary/basic education has to be qualitative and for
that the trained teachers are required. The Legislature in
its wisdom after consultation with the expert body fixes the
eligibility for a particular discipline taught in a school.
Thus, the eligibility so fixed require very strict compliance
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and any appointment made in contravention thereof must
be held to be void.
19. In ordinary circumstances, the instant case could be
decided in the light of the aforesaid backdrop. However, the
Division Bench of the High Court has given full details of
the teachers who had been appointed alongwith the
respondent No.1 in pursuance of the same advertisement
and possessing the same qualification of
B.Sc.;B.Ed./B.A.;B.Ed. They are still working with the same
management and some of them had been as under:
(i) Mrs. Rekhaben Virabhai Patel
(ii) Mrs. Urmilaben Chandrakantbhai Mistry
iii) Mr. Dilipbhai Naranbhai Patel
iv) Mrs. Ritaben Shaileshbhai Joshi
20. The High Court further recorded a finding that the list
of such persons was merely illustrative and not exhaustive.
21. A person alleging his own infamy cannot be heard at
any forum, what to talk of a Writ Court, as explained by
the legal maxim ‘allegans suam turpitudinem non est
audiendus’. If a party has committed a wrong, he cannot be
permitted to take the benefit of his own wrong. (Vide: G.
S. Lamba & Ors. v. Union of India & Ors., AIR 1985 SC
1019; Narender Chadha & Ors. v. Union of India & Ors.,
AIR 1986 SC 638; Molly Joseph @ Nish v. George
Sebastian @ Joy, AIR 1997 SC 109; Jose v. Alice & Anr.,
(1996) 6 SCC 342; and T. Srinivasan v. T. Varalakshmi
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(Mrs.), AIR 1999 SC 595).
This concept is also explained by the legal maxims
‘Commodum ex injuria sua nemo habere debet’; and ‘nullus
commodum capere potest de injuria sua propria’. (See also:
Eureka Forbes Ltd. v. Allahabad Bank & Ors., (2010) 6
SCC 193; and Inderjit Singh Grewal v. State of Punjab &
Anr., (2011) 12 SCC 588).
22. Thus, it is evident that the appellant has acted with
malice alongwith respondent and held that it was not
merely a case of discrimination rather it is a clear case of
victimisation of respondent No.1 by School Management for
raising his voice against exploitation.”
(ii) The order dated 27.06.2025 passed by this Court in
similar set of facts in Special Civil Application No.12217
of 2012 and allied matter, more particularly, paragraphs
8.1 to 8.5 are relevant, which read thus:
8.1 I have considered the rival submissions made at the
bar. I have also considered that the fact that the
respondent Nos.1 to 7 are serving with petitioners as
teachers. After perusing the judgment of the Tribunal,
prima facie, I am of the view that there is no dispute that
the respondent Nos.1 to 7 are serving with the petitioners’
school, and the Tribunal has considered various aspects in
the impugned order. The Tribunal has rightly consideredPage 13 of 26
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the Notification issued by Gujarat Government dated
27.09.2006 that non-granted private schools are exempted
from the payment of the salaries as per Government Rules.
8.2.1 It is also fruitful to refer the Notification
dated 27.09.2006 issued by Gujarat Government, more
particularly, whereby Rule 106(A)(4)(v) is substituted in
the Bombay Primary Education Rules, 1949, which reads as
under:
“(v) The rates of tuition fees, the pay scales and
allowances of the teaching staff of grant-in-aid
recognised private primary school shall be such as
may be approved by the Government from time to
time.”
Prior to the aforementioned notification of the
Education Department, the following provisions were
in place.
“(v) The rates of tution fees, the pay scales and
allowances of the teaching staff shall be such as may
be approved by the Government from time to time.”
8.2.2 Furthermore, by comparing the earlier Rule, it
transpires that there is intention of the Government to
exempt the private schools to pay the salary as per the
Government Rules. Moreover, the Tribunal has rightly
referred to Schedule F of the said Rules, more particular
clause (9), which is as under:
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“9. Scale of salaries:- Scales of pay and allowances
payable to the teaching and non-teaching staff shall
be such as may be approved by the State
Government from time to time.”
8.3 Furthermore, considering the judgments cited by Mr.
Y.H. Motiramani, learned advocate for the petitioners in the
case of Mrs. Satimbhai Sharma v/s. St. Paul S. Senior
Secondary School reported in AIR 2011 SC 2926, whereby
paragraphs 3 and 27 are relied on and in the cases of (i)
Benson Knock Semual vs. State of Gujarat reported in 1984
(1) GLR 691, more particularly, paragraph 9 is relied on
and (ii) Swaminarayan Education Trust vs. State of Gujarat
reported in 1993 (2) GLR 1713. There is no dispute about
the proposition of law enunciated in these judgments, but
these judgments are not helpful to the petitioners in the
facts of the present case.
8.4.1 It is fruitful to refer the judgment cited by
learned advocate for the respondents of the Hon’ble Apex
Court in the case of Swaminarayan Navsarjan Vidyalaya
(supra), more particularly, paragraphs 15 and 16 are
relevant, whereby in substance, there is observation of
entitlement of benefit of 5th pay of teachers of non-granted
private school, the said relevant paragraphs are as under:
“15. So far as the merits of present petition is
concerned, the petitioner has submitted that pursuant
to resolution dated 27.9.2006, respondent No.1 is notPage 15 of 26
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entitled to benefit of 5th Pay Commission because
the petitioner school is not grant-in-aid school.
However, in such resolution dated 27.9.2006, nowhere
it is clarified that the teachers serving in private
schools are not entitled to the benefit of 5th Pay
Commission. On the contrary, the resolution
confirms that the rates of tuition fees, the pay-scales
and allowances of the teaching staff of grant-in-aid
recognized private primary school, shall be such as
may be approved by the Government from time to
time. Such condition has been substituted in Rule
106(A) in Sub-Rule (4) for Clause (v) of Bombay
Primary Education Rules, 1949 by notification of the
same date i.e. 27.9.2006. There is no other clarity
on record. Whereas, the resolution of the Government
dated 22.7.1980 confirms that the teachers like the
respondent No.1, shall be given the same salary that
has been approved for equally situated teachers as
per such resolution, copy of which is produced on
record at Annexure- 1, page 45. Therefore, perusal
of the impugned judgment confirms that the Tribunal
has taken care of such factual details and applicable
Rules while deciding such applications No.65 and 66
of 2002 and confirms that the respondent is entitled
to the benefit of 5th Pay Commission, practically,
there is nothing on record so as to quash and set-
aside such order. Whereas, the issues raised by the
petitioner has also no supporting evidence and even
otherwise it has no force when it is only prayed that
the respondent has got service illegally because ofPage 16 of 26
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her uncle and that she is not entitled to the benefit
of 5th Pay Commission because petitioner’s school is
not grant-in-aid school and she is not P.T.C. pass.
However, the resolution dated 22.7.1980 confirms
that qualification of the petitioner is proper for such
job and therefore, it cannot be said that her
appointment was illegal. The petitioner has also
raised several minor issues regarding disclosure of
the word ‘High School’ etc., but it has no bearing on
the principal dispute between the parties.
16. It is undisputed fact that respondent has served
for 32 years and that she is B.A., B.Ed. and
therefore, when there is no issue regarding her
initial appointment, and when there is no privilege or
benefit extended by any rule to the private schools,
which are not getting grant-in-aid to pay different
salary than the equally situated teachers in other
schools, I do not find any substance in the petition
and therefore, the petition needs to be dismissed.”
8.4.2 It is also fruitful to refer the judgment cited
by learned advocate for the respondents in the case of
Rajak Hasam Ghanchi (supra), more particularly,
paragraphs 5 and 6 are relevant, whereby in substance,
there is observation of entitlement of teachers of minority
institution to non-granted salary as per Rules and the
benefit of 5th pay of teachers of non-granted private
schools, the said relevant paragraphs are as under:
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“5. I am of the view that this issue is no longer
res integra after the pronouncement of the judgment
by the Supreme Court in the case of Shantiniketan
Hindi Primary School V/s. Pal Hariram Ramavtar
and others, reported in AIR 2010 SC 656. The facts
in the case of Shantiniketan (supra) were that
Shantiniketan Educational Trust was a minority
institution running two primary unaided schools, one
in Gujarati medium and the other in Hindi medium
in the State of Gujarat. Respondent nos.1 to 4 were
working as teachers in those schools. Their services
were terminated on 5th July 1996 on the ground
that they had absented from duties. Against the
order of termination of service they filed application
before the Gujarat Primary Education Tribunal.
While they were in service they moved applications
before the said Tribunal claiming parity of pay and
allowances as per Government rules applicable to the
Untrained Teachers. All the applications were heard
together by the Tribunal and a common order was
passed quashing the termination orders and
directing reinstatement with full salary and other
benefits from the date of termination till the date of
the order with a further direction to pay the salary
and other benefits applicable to Untrained Teachers
as per Government rules, from the dates of their
appointments. The Management filed a writ petition
being Special Civil application No.6918/2001 which
was dismissed by the learned Single Judge of this
High Court on 19th February 2002 which was
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affirmed by the Division Bench vide order dated
30th February 2002. Aggrieved by the same, Appeal
came to be preferred before the Supreme Court by
the Management.
6. Before the Supreme Court, the main contention
raised by the Management was that the respondents
were unqualified to hold the post and also that they
were not trained teachers. Supreme Court noticed
that the reason for termination of service was not
that they were unqualified or untrained teachers, but
that they had absented from duties. Dismissing the
Appeal filed by the Management and holding that
the respondents-teachers were entitled to get pay
and allowances which are applicable to untrained
teachers as per Government rules, Supreme Court
held as under :
“5. The appellant is a recognized unaided Primary
School governed by the provisions of the Bombay
Primary Education Act 1947. The 1st Respondent,
herein a graduate was appointed as Assistant
Primary Teacher in the Hindi Medium of the School
on 5.6.1987. 2nd respondent, who was possessing the
qualification of SSC was appointed in the school as a
Teacher for the course of Handicraft and Book
binding on 8.7.1985. The 3rd respondent was
appointed as Assistant Teacher in the Gujarati
Medium of the school on 22.6.1986 and the 4th
respondent was appointed on Assistant PrimaryPage 19 of 26
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Teacher in the Gujarati medium on 5.6.1987. They
were discharging their duties without any complaint
from any quarters. Noticing that they were not
getting the pay and allowances as per Government
Rules applicable to untrained teachers, they
approached the Tribunal and filed application nos.3 of
1993 and 30 of 1993 for a direction to the
Management to pay the salary and allowances as per
Government Rules. Apparently, irked by such
demand, their services were terminated by the
Management on the ground that they had absented
from duty without informing the Management which
amounted to gross indiscipline. The Tribunal after
an elaborate discussion of the various contentions
raised by the parties and also examining the
provision of Bombay Primary Educational Act, 1947
and the Gujarat Amendment Rules 1978 came to
the conclusion that the order of termination was bad
since the Management had not followed by proper
procedure in terminating their services. Further, it
was also found that the respondents were entitled to
get the pay and allowances as per Government Rules
applicable to untrained teachers.
6. The main contention raised by the Management
before us was respondents were unqualified to hold
the post and lso that they were not trained teachers.
We notice that the reason for termination of
services was not that they were unqualified or
untrained teachers but that they had absented from
duties. Assuming that they had absented fromPage 20 of 26
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duties even then admittedly procedure laid down
under Clause 13 and 18 of Schedule `F’ of the
Bombay Primary Education Rules, 1949 had to be
followed before terminating their services. The
Tribunal and the High Court had therefore rightly
held that the orders of termination of services of
the respondents was bad in law.
7. Rule 106A of the Bombay Primary Education
Rules deals with the application for recognition. Sub-
rule 2 of Rule 106-A states that every application
under sub-rule 1 shall be sent to the authorized
officer by registered post with acknowledgment due
together with an undertaking in writing that the
conditions of employment of teachers in the private
primary schools shall be those as specified in
Schedule ‘F’ appended to these rules. Schedule ‘F’
deals with the model conditions of employment of
teachers in the private schools in the State of
Gujarat which forms part of Rule 106A of the Rules.
Clause (v) of sub-rule 4 states that no primary
school shall be recognized or continued to be
recognized unless the rates of tuition fee, pay-scales
and allowances of the teaching staff shall be such as
may be approved by the Government from time to
time. Following the above mentioned provisions, the
Tribunal, on facts found that the respondents were
working as teachers in the School for over ten years
but they were paid only a consolidated monthly pay
of Rs.724 per month, which was found to be not in
accordance with rules. Tribunal in our view hasPage 21 of 26
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correctly come to the conclusion that the respondents-
teachers are entitled to get pay and allowances
which are applicable to untrained teachers as per
Government Rules.
8. Under the above circumstances, we find no
reason to interfere with the order passed by the
Tribunal which was confirmed by the High Court.
Further, we notice that when this court had granted
stay of the judgment vide orders dated 13.1.2006,
recorded the statement of counsel for the
management that it had disbursed Rs. 2 lakhs
towards arrears of salary. Needless to say that
amount would be adjusted towards salary due to the
respondents. Considering the financial difficulties
pointed out by the counsel appearing or the
Management and the fact that the School had to be
closed down for the years 1995-96 and 1996- 97,
and considering the fact that there were unauthorized
absences, we are of the view that the respondents
1-4 are entitled to get only 50% of the salary and
other benefits applicable to the untrained teachers
as per Government Rules from the date of
appointment till the date of reinstatement after
adjusting the above-mentioned amount. Ordered
accordingly.” Thus, in view of the pronouncement of
the Supreme Court judgment in the case of
Shantiniketan (supra) the position of law is
abundantly clear and the petitioners in the present
case are entitled to the reliefs which have been
prayed for in this petition.”
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8.4.3 It is also fruitful to refer the judgment cited
by learned advocate for the respondents of the Hon’ble
Apex Court in the case of Shantiniketan Hindi Primary
School (supra), more particularly, paragraphs 6, 7 and 8 are
relevant, whereby in substance, there is observation of
entitlement of teachers of minority institution in non-
granted schools to get full salary as per Rules benefit of
5th pay of teachers of non-granted private school, the said
relevant paragraphs are as under:
“6. The main contention raised by the Management
before us was respondents were unqualified to hold
the post and also that they were not trained
teachers. We notice that the reason for termination
of services was not that they were unqualified or
untrained teachers but that they had absented from
duties. Assuming that they had absented from duties
even then admittedly procedure laid down under
Clause 13 and 18 of Schedule `F’ of the Bombay
Primary Education Rules, 1949 had to be followed
before terminating their services. The Tribunal and
the High Court had therefore rightly held that the
orders of termination of services of the respondents
was bad in law.
7. Rule 106A of the Bombay Primary Education
Rules deals with the application for recognition. Sub-
rule 2 of Rule 106-A states that every application
under sub-rule 1 shall be sent to the authorized
officer by registered post with acknowledgment duePage 23 of 26
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together with an undertaking in writing that the
conditions of employment of teachers in the private
primary schools shall be those as specified in
Schedule ‘F’ appended to these rules. Schedule ‘F’
deals with the model conditions of employment of
teachers in the private schools in the State of
Gujarat which forms part of Rule 106A of the Rules.
Clause (v) of sub-rule 4 states that no primary
school shall be recognized or continued to be
recognized unless the rates of tuition fee, pay-scales
and allowances of the teaching staff shall be such as
may be approved by the Government from time to
time. Following the above mentioned provisions, the
Tribunal, on facts found that the respondents were
working as teachers in the School for over ten years
but they were paid only a consolidated monthly pay
of Rs.724 per month, which was found to be not in
accordance with rules. Tribunal in our view has
correctly come to the conclusion that the respondents-
teachers are entitled to get pay and allowances
which are applicable to untrained teachers as per
Government Rules.
8. Under the above circumstances, we find no reason
to interfere with the order passed by the Tribunal
which was confirmed by the High Court. Further, we
notice that when this court had granted stay of the
judgment vide orders dated 13.1.2006, recorded the
statement of counsel for the management that it had
disbursed Rs. 2 lakhs towards arrears of salary.
Needless to say that amount would be adjustedPage 24 of 26
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undefined
towards salary due to the respondents. Considering
the financial difficulties pointed out by the counsel
appearing for the Management and the fact that the
School had to be closed down for the years 1995-96
and 1996-97, and considering the fact that there were
unauthorized absences, we are of the view that the
respondents 1-4 are entitled to get only 50% of the
salary and other benefits applicable to the untrained
teachers as per Government Rules from the date of
appointment till the date of reinstatement after
adjusting the above-mentioned amount. Ordered
accordingly.”
8.5 In view of the abovementioned legal position and
considering the above-all, I am of the opinion that
contentions raised by learned advocate for the petitioners
are found misconceived as petitioners cannot shrug off the
liability to pay the amount of salary as per the
Government Rules. The Tribunal has not committed any
error in directing the petitioners as per impugned judgment.
I found no substance in any of the present petitions as all
the petitions are based on similar contentions as there is
almost identical facts and prayers are involved in the
present matters. Therefore, considering the above-mentioned
discussion, I found that there is no illegality or infirmity in
the impugned order passed by the learned Education
Tribunal, moreover, there is no violation of any provisions
of Constitution of India and, therefore, the present petitions
deserve to be dismissed.”
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8.3 Considering the above position of law and
considering the facts of the present case, whereby it is
bounden duty of the respondent school to pay necessary
salary to the petitioner even considering the petitioner as
untrained teacher and, therefore, the petition is required
to be considered by granting the prayers made in the
present petition.
9. In view of the above discussions, the present
petition is allowed in terms of paragraphs 9A and 9B of
the present petition.
10. The order dated 26.06.2012 passed by the Primary
Education Tribunal in Application No. 94 of 2006 and
No. 63 of 2006 as well as the order of termination dated
21.11.2006 passed by the respondent management is
hereby quashed and set aside.
Rule is made absolute.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
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