Natvarbhai Harjibhai Kanjariya vs Municipal Primary Education Committee, Botad & 1 Other(S)

N.V.Anjaria, J

1 .Heard learned advocate Mr.Nirav Sanghavi for the petitioner, learned advocate Mr.D.M.Thakkar for respondent No.1 and learned Assistant

Government Pleader Mr.Manan Mehta for respondent No.2.

The petitioner has prayed to set aside order dated 03.02.2016 passed by respondent No.1ÂMunicipal Primary Education Committee. By this order,

along with other thirteen Primary Teachers, the option granted to the petitioner came to be cancelled on the ground that the petitioner had undertaken

his studies in the degree course while on duty in the school where he was serving, without permission. In the impugned order, the departmental action

was also recommended against such class of teachers including against the petitioner.

The petitioner was appointed as Teacher in the year 1994. According to his case, he discharged his duties honestly and diligently. The petitioner

was an aspirant to become Head Teacher. The petitioner obtained degree certificate of Bachelor of Arts from Bhavnagar University in the year 1999.

The petitioner had cleared the Head Teacher Aptitude Test in September, 2013 and also obtained the CCC Examination certification as required. It is

the case of the petitioner that when the meritÂlist was prepared by the respondents for the post of Head Teachers, the vacancy was available and the

petitioner stood on merit.

3.1 It appears that the petitioner had earlier approached this Court by filing Special Civil Application No.1169 of 2015 wherein he had challenged the

selection process. This Court set aside the entire process and directed the exercise to be undertaken afresh for promotion in accordance with the

rules. Respondent No.1 thereafter conducted a camp for filling up the post of Head Teacher on 29.09.2015. The petitioner was asked to remain

present in the camp, however, it was mentioned that the same would be subject to the Show Cause Notice dated 18.09.2015.

3.2 Thus, it appears that the Show Cause Notice dated 18.09.2015 was issued and the petitioner was called upon to state that the petitioner was in

service in the school and at that time, without obtaining prior permission from the competent authority, he studied the course of Bachelor of Arts and

thereby committed breach of the provisions of Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. The petitioner gave reply

dated 24.09.2015 to the said Show Cause Notice. Thereafter, culminated the impugned order.

The petition was contested by filing affidavit inÂreply. It was stated that the petitioner was not deprived of or denied any permission or higher

post. It was stated that after introduction of the Secondary Education Policy, the State Government had resolved that primary education is to be

bifurcated into lower primary section comprising of Standards I to V and upper primary section consisting of Standards VI to VIII.

4.1 It appears that it was resolved by the State Government that the Teacher imparting education in Standards I to V would be given option to impart

education in upper primary section of Section VI to VIII provided they possess necessary qualification of graduation degree from a recognized

university. The petitioner obtained graduation degree of B.A. as regular student. However, it was found that he had attended the classes in the college

during the duty hours without obtaining leave from duty or without taking any prior permission from the department which was required under the

rules.

In the aforesaid view, the petitioner was treated as not eligible to opt for upper primary section. The petitioner was given notice and thereafter the

duty is assigned to him as Teacher in the upper primary section came to be withdrawn. The cancellation order was passed which is the impugned

order in respect of as many as fourteen such employee Teachers. As the petitioner has studied the degree while on duty without taking permission and

had pursued the degree course as regular student, the petitioner was not eligible to exercise the option as per the rules which were reflected in the

communication dated 02.05.2016 issued by the office of Director of Primary Education.

5.1 The hours of the petitioner in the primary school was 12.15 p.m. to 5.30 p.m., whereas the college for degree course which the petitioner attended

had the timing of 7.45 a.m. to 13.13 p.m. Thus, the hours were in conflict and the petitioner attended the classes during the duty hours for 80 days

during June, 1998 and October, 1998 and for 95 days during November, 1998 and March, 1999. The concerned college. The concerned college

indicated by written communication that the petitioner during the said time on one hand attended the college and on the other hand also marked his

presence as Teacher on duty which was a misconduct.

5.2 In the facts of the case, no right for the petitioner, much less enforceable right was created.

The effect of the impugned order did not have any pecuniary loss for the petitioner. No prejudice could be said to have been caused to the petitioner.

Along with the petitioner, as noted earlier, the option was withdrawn from as many as thirteen teachers. It was an action entirely based on policy

practiced by the respondent authorities. It was an action based on policy which did not have effect of causing injury in law to the petitioner.

Learned advocate for the petitioner submitted that in the impugned notice, the authorities have also contemplated for initiation of departmental

inquiry. It was submitted that the Show Cause Notice was issued in the year 2015 and the departmental action was contemplated after gross delay as

the petitioner had obtained the Bachelor's Degree in Arts in the year 2001 which was called in question for the aforesaid reason. As regards the

grievance about the delayed contemplation of departmental action, it may be observed that in the affidavitÂinÂreply, the deponent Administrative

Officer of respondent No.1 Municipal School Board, Botad, has inter alia observed that “However, instead of taking any disciplinary action, the

option given to the petitioner along with other similarly situated employees was cancelled considering their length of service by taking a lenient view by

the departmentâ€. Thus, the respondents have expressed that they were not inclined to initiate the departmental proceedings and lenient view was

taken by cancelling the option for the petitioner and other similarly situated persons. This should satisfy the grievance of the petitioner about the

delayed action in respect of the intended departmental inquiry. Notwithstanding the above, it is observed that the respondents, as stated in the affidavit,

may not opt for initiating the departmental inquiry at this stage in the peculiar facts and circumstances of the case, as they themselves have stated as

above in the affidavit.

Subject to the aforesaid observations, the petition has no merits and the same is dismissed. Notice is discharged.