STATE OF GUJARAT Vs. SHARDABEN ASHIVNKUMAR BRAHMBHATT

JUDGEMENT

(1.) This appeal under Clause 15 of Letters Patent is preferred by the State of Gujarat against oral order dated 13.1.2017 passed by learned Single Judge in Special Civil Application No. 8859 of 2010 whereby respondent-original writ petitioner was denied benefits of higher pay-scale on the ground that she was untrained teacher by an order dated 27.7.2010.

(2.) Learned Single Judge adverted to certain facts in the context of decision rendered by the Apex Court in the case of State of Punjab and Ors. v. Rafiq Massi (2015) 4 SCC 334 , in which it is held that certain types of recoveries from retired employees belonging to Class-III is impermissible and accepting the above proposition and recording certain facts of the case learned Single Judge concluded that case of the respondent/writ petitioner was based on condition No.3 (32) of Government Resolution dated 16.8.1994 and subsequent resolution relied on by learned AGP had no applicability since basic scheme of higher pay-scale was available based on total length of service and lack of avenues for promotion in the higher cadre. Learned Single Judge has also preferred to Rule 37 of Bombay Primary Education Rules, 1949 wherein Sub-Rule (4) (a) mandated the District School Board or authorized municipality to depute un-trained school teachers for training every year and further 31 similarly situated un-trained teachers were granted 1st and 2nd higher pay-scale.

(3.) Mr.Rohan Yagnik, learned AGP assailing above findings of learned Single Judge would contend that respondent-writ petitioner was appointed as Assistant Teacher in Primary School, for which minimum qualification required was Secondary School Certificate and she had studied upto standard VII and, therefore, being untrained teacher she was not entitled for the benefit of higher grade scale as per G.R. Dated 16.8.1994.