Point of Law: Writ petitions cannot be entertained since the petitioners have given up their challenge to the Rule 2(d) of the Rules, 2011, the same does not deserve acceptance. The petitioners have voiced their grievance of excluding them from the definition of 2(d) and after considering their grievance it is found that they are illegally excluded. Thus, it is not necessary for them to challenge the provision of Rule 2(d).

JUDGMENT :

A.S. Supehia, J.

1. The captioned writ petitions are filed seeking a direction on the respondent authorities to accept the application forms of the petitioners by considering their 5 years teaching experience rendered as Shikshan Sahayak in the registered non-government granted secondary and higher secondary schools.

2. As regards the prayer seeking quashing and setting aside the Rule 2(d) of Notification dated 11th February, 2011 is concerned, the petitioners have not pressed the same before the Division Bench.

3. The entire case of the petitioners is based on the definition of 2(d) of the Teachers and Headmasters of the Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 (for short "the Rules, 2011") which was promulgated vide notification dated 11th February, 2011.

4. The petitioners were appointed as Shikshan Sahayaks (Assistant Teachers) after undertaking a regular selection process pursuant to the advertisement. They were appointed for a period of 5 years on a fixed pay and after completion of aforesaid period they are further placed on a regular scale of Rs. 9300-34800/-. The State Authority, thereafter, issued an advertisement dated 12th April, 2016 for filling up the posts of Shikshan Sahayak as well as the old teacher.

5. The petitioners, who were appointed on a fixed pay for five years, are excluded from the aforesaid recruitment process in view of the definition of 2(d) of the Rules, 2011 defining "old teachers".

6. Learned advocate Mr. R.D. Kinariwala for Mr. Bipin Jasani for the petitioners has submitted that the aforesaid action of the respondent authorities to exclude them is illegal and irregular since the petitioners fall within the definition of "old teachers", and they also possess 5 years experience as such.

7. He has submitted that the respondent authorities have excluded the petitioners only on the basis of their initial appointment as they are appointed on a fixed pay for 5 years. He has submitted that once the petitioners have successfully completed 5 years of services in the fixed pay and are confirmed in regular pay scale, they cannot be excluded from participating in further recruitment process by treating that their appointment as irregular.

8. Learned advocate Mr. Kinariwala has placed reliance on the judgment and order of the Division Bench of this Court in the case of Shree Yogkshem Foundation for Human Dignity Vs. State of Gujarat & Ors, reported in 2012 (5) GLR 4533 in support of his submissions and has submitted that as per the observations made by the Division Bench, the entire period of fixed pay is to be considered for future benefits, once an employee is placed in regular pay scale.

9. He has submitted that the Finance Department, State of Gujarat has also introduced the resolution dated 18th January, 2017 whereby it is declared by the State Government that the Class-III and Class-IV employees, who are appointed on a fixed pay on their confirmation, after rendering 5 years shall be conferred the benefit of promotion, seniority and higher pay-scale as well as the retiral benefits by including such period. He has submitted that thus, the services rendered by the present petitioners as Assistant Teachers on the fixed pay cannot be ignored. (The Resolution dated 18th January, 2017 is ordered to be taken on record).

10. In response to the above, the learned Assistant Government Pleader Mr. Joshi has submitted that the case of the petitioners would not be covered under the definition of 2(d) of the Rules, 2011. He has submitted that admittedly the petitioners have rendered their services on the fixed pay and they do not have the experience for 5 years regular service, and hence they cannot be permitted to participate in the recruitment process initiated vide advertisement 12th April, 2016. He has submitted that the aforesaid judgment and order of the Division Bench is further challenged in the Supreme Court, however, the State Authorities have impleme