B.K. Mehta, J.
1. This petition pertains to the question of apprehended disturbance of the seniority of the petitioners, who are ex-employees of Mehsana District School Board constituted under the Bombay Primary Education Act, 1947, who, on coming into force of the Gujarat Panchayats Act, 1961, have become the employees of the Mehsana District Panchayat as prescribed under section 155 of the Gujarat Panchayats Act. The petitioners apprehended that their seniority would be disturbed since the concerned District Panchayat Authorities were trying to give seniority to the primary teachers who have been transferred from other districts which, according to the petitioners, was clearly in violation of Section 155(1)(a) of the Gujarat Panchayats Act. The grievance in this behalf is made in paragraph 18 of the petition, which has been denied by the respondent-Panchayat in the reply affidavit of one Shri L.J. Mehta, who happened to be Under Secretary in Education Department of the State Government. The reply affidavit discloses that the State Government intends to follow the provisions contained in the impugned resolution of the State Government dated July 30, 1977. It is in this light that I have to decide what appropriate directions should be granted in this matter.
2. It appears from the reply affidavit filed on behalf of the respondents that according to them the impugned resolution of July 30, 1977 is applicable to the case of the petitioners and similarly situated ex-district school board employees governed by the Bombay Primary Education Act, 1947. As a matter of fact, the said resolution, though seeking to make some provision about fixation of seniority of primary teachers was, in effect and substance, providing for the fixation of seniority of teachers appointed after the constitution of District Education Committee since there was no uniformity in the principles for fixation of seniority of such teachers qua the ex-employees of the school boards of Saurashtra. It is common ground that the petitioners were the ex-employees of the Mehsana District Board constituted under the Bombay Primary Education Act, 1947 and were not appointed after the constitution of the District Education Committees under the Gujarat Panchayats Act. The said resolution would, therefore, not in terms apply to the petitioners for obvious reason that their case would be governed clearly by Section 155(1)(a) of the Gujarat Panchayats Act. The relevant part of the said section as contained in Section 155(l)(a) provides as under:
155 (1) Notwithstanding anything contained in the Bombay Primary Education Act, 1947, and the Saurashtra Primary Education Act, 1956 or any other corresponding law for the time being in force, on and with effect from such date as the State Government may, by notification in the Official Gazette, appoint (hereinafter referred to in this Chapter as 'the said data') every district school board constituted under the Bombay Primary Education Act, 1947, or, as the case may be, the Saurashtra Primary Education Act, 1956 (hereinafter referred to in this Chapter as 'the relevant Act') functioning immediately before the said date (hereinafter referred to in this Chapter as 'the existing school board') shall stand dissolved and on such dissolution, the following consequences shall ensue, that is to say-
(a) xx xx(b) xx xx(c) xx xx(d) xx xx(e) the employees of the existing school board shall stand transferred to the taluka panchayats and the district panchayat in accordance with the distribution made in that behalf and on such terms and conditions as may be provided in the said order : Provided that the terms and conditions of service of any such employee shall not be less favourable than those applicable to him while in service of the existing school board.... ... ... ...
3. The petitioners are the ex-district school board employees transferred by operation of law and, therefore terms and conditions of service which would, inter alia, include their seniority, cannot be varied to their disadvantage. In other words, the seniority which they carried with them when they were transferred in pursuance of the provisions contained in Section 155 of the Gajarat Panchayats Act, should be kept intact. They cannot be equated with the primary teachers who have been appointed after the constitution of the District Education Committee, or who have been transferred from other district panchayats in pursuance of the powers conferred on the District Panchayat authorities under the Gujarat Panchayat Service (Transfer of Servants) Rules, 1968. The seniority of the petitioners would be governed according to the Government resolution of the erstwhile State of Bombay dated 5th May 1954 which has prescribed that seniority of primary teachers governed by the said resolution would be determined on the principles of continuous officiation. It is, therefore, clear that the petitioners are justified in making the grievance as they did in the present petition that the respondents were acting beyond their jurisdiction, power and authority in disturbing their seniority, if at all they are going to do it by application of the impugned resolution of 1977.
4. In that view of the matter, therefore, the present petition is allowed and the respondents are directed not to disturb the seniority of the petitioners which has been fixed according to the aforesaid Bombay Government resolution of 1954 by ranking the petitioners below primary teachers appointed by the District Education Committee, or transferred primary teachers from other districts in exercise of the powers under the said Rules, and the seniority which was fixed in the times of Bombay State cannot be disturbed when they were transferred to District Panchayat in pursuance of the provision contained in Section 155 of the Gujarat Panchayats Act, 1961.
Rule is made absolute accordingly with no order as to costs.