HIRABHAI M MAKWANA Vs. PRESIDENT

JUDGEMENT

(1.) The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India challenging the order passed by the Gujarat Secondary Education Tribunal at Ahmedabad in Application No.365 of 1990. The petitioner herein was the original applicant before the Tribunal. It was his case before the Tribunal that he is a trained Graduate Teacher and qualified to be appointed as a teacher in Secondary Educational institutions. That he was appointed as a teacher and in-charge Head Master in the first respondent - institution with effect from June 1987 and worked till the end of academic year 1989-90 i.e. till June 1990. In spite of the fact that he was serving the school, he was not paid his regular salary. He was not allowed to perform his duty from June 1990. On the basis of the aforesaid apprehension of termination of his services, he approached the Tribunal by way of filing the said Application No.365 of 1990.

(2.) The Tribunal had initially granted interim injunction in favour of the applicant against the termination without following the procedure established under the law. However, according to the applicant in spite of interim order he was not permitted to discharge his duty. Ultimately, the Tribunal decided the main application and by its order dated 13.3.1991 allowed the said application partly. So far as prayer regarding continuing the petitioner in school on the post of in-charge Headmaster is concerned, the said prayer was rejected by the Tribunal. However, the Tribunal passed an order directing the respondent-school for making the payment of salary together with allowances to the petitioner with effect from 15.6.1987 to 15.6.1990 on the basis of Quantem Meruit. The aforesaid order of the Tribunal is impugned at the instance of the original applicant-teacher insofar as his claim regarding continuous service in the school on the post of Asst. Teacher/in-charge Head Master was denied. This petition was admitted by this Court on 27.12.1993 and now it has reached for final hearing.

(3.) At the time of hearing of this petition, Mr Dave appearing for the petitioner has submitted that the petitioner having been appointed by the management on the post of Asst. Teacher / in-charge Head Master, his services could not have been terminated except in accordance with the provisions of Section 36 of the Gujarat Secondary Education Act. He submitted that even assuming that his appointment was not in accordance with the provisions of the Act, then also, his services could not have been terminated without following the principles of natural justice. He, however, submitted that in any case, so far as management is concerned, the Committee of the School had appointed the petitioner on the aforesaid post and if there is any defect in procedure in making such appointment u/s 35 of the said Act, then also the school is estopped from removing the petitioner from the aforesaid post. At the most, even if it is held that the appointment is ineffective, it is between the school and the Government and the Government may not sanction the salary of the petitioner but it does not mean that the school can terminate the services of the petitioner relying upon the provisions of Section 35 of the Act.