NITIN D DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is B secondary school teacher. On account of reduction in classes on and from 7/02/1987 the petitioner along with two other teachers was declared surplus The petitioner was continued in the school till September 1988 because there was no vacancy in other schools till then. On termination of the services the petitioner along with other two teachers submitted application before the Secondary Education Tribunal under the provisions of Sec. 38 of the Gujarat Secondary Education Act 1972 The petitioner prayed that he was entitled to compensation as provided under Regu- lation No. 33 of the Secondary Education Regulation 1974 The Tribunal held that on account of the proviso introduced in Regulation 33 with effect from 12/04/1988 the petitioner is not entitled to compensation and rejected the claim of the petitioner for compensation. The petitioner challenges the legality and validity of the judgment and order passed by the Tribunal. The petitioner also prays for declaration that the action of the Government in introducing proviso to Regulation 33 be declared as ultra vires the provisions of the Constitution and it may also be declared that the action of the Government in passing resolution according sanction to the proviso to Regulation 33 is illegal and void. The proviso to Regulation 33 of the Gujarat Secondary Education Regulation 1974 reads as follows. Provided that the emPloyees who have availed of the benefits of being surplus supernumerary teachers shall not be entitled not any compensation. The Tribunal held that the petitioner had availed of the benefit of being declared surplus and therefore the petitioner was not entitled to the benefit of compensation as provided under Regulation 33. The petitioner continued to be in service of the opponent-school till September 1988 The Tribunal has categorically held that the services of the petitioner were not terminated nor he was discharged from service prior to September. 1988. In fact he was receiving salary from the school during this period. Simply because the petitioner was declared surplus in 1987 the petitioner cannot get the benefit of compensation. This is so because the petitioner was in fact not required and job less till September 1988 This lacuna has been plugged by introducing the provide which came into force with effect from 12/04/1988

(2.) It is contended that it is not even the powers of the Board to make provision by way of proviso introduced in Regulation 33. It is contended that the provision made in Regulation 33 and particularly by way of proviso to Regulation 33 pertains to the conditions of service of teachers. Therefore in submission of the learned Counsel for the petitioner it is beyond the scope of the powers of the Board. In order to appreciate the contention raised by the learned Counsel for the petitioner provisions of Sec. 53 of the Gujarat Secondary Education Act 1972 be looked at. Sub-sec. (1) of Sec. 53 empowers the Board to make regulations for the purpose of carrying into effect the provisions of the Act. Sub-sec. (2) illustrates specifically mentioning certain matters in respect of which the regulation may be made. By it noted that mentioning of these matters does not mean that with respect of other matters the Board is not empowered to make regulation. Sub- sec. (2) of Sec. 53 clearly provides that in particular and without provision to the generality of the foregoing power such regulations may provide for all or any of the matters mentioned. Therefore the general provision made in sub-sec. (1) of Sec. 53 of the Act empowers the Board to make regulation which should be for the purpose of carrying into offset the provisions of the Act. Now that are the provisions of the Act ? Does it not contain any provision with regard to service conditions of the teachers ? is on looks at the provisions of the Act it is evident that the Act aims at regulating the Secondary Education in the State. Regulation of the Secondary Educa- tion would include conditions of service of the teachers in the secondary schools. Therefore by on stretch of reasoning it can be said that the retaliation passed by the Board for introducing the proviso to Regula- tion is beyond the scope of the powers of the Board. The Board has power to introduce the proviso by way of amendment in the Regulation Hence the challenge to the vires of the amended part of Regulation 33 cannot be sustained and the same is hereby rejected.

(3.) Learned Counsel for the petitioner submitted that the order of the Tribunal to the effect that the petitioners services were actually terminated in September 1988 and therefore he is not entitled to the benefit cannot be accepted. It is an undisputed position that the petitioner was in service up to September 1988 The fact that the petitioner was discharged from service on 7-2-1987 pales into insigni- ficance in view of the aforesaid proviso. As per the proviso the petitioner has availed of the benefits of being in service as supernu- merary teacher and therefore the Tribunal has nightly held that the petitioner is not entitled to any compensation.