SARLABEN DASHRATHLAL DAVE Vs. VINODBHAI GADI PRESIDENT

JUDGEMENT

(1.) This petition, under Article 226 of the Constitution of India, assails judgment and order dated 16.02.1994, passed by the Gujarat Higher Secondary Tribunal, Ahmedabad ("the Tribunal" for short) in Application No. 189/1992, filed by the petitioner, whereby the claim of the petitioner that she should be treated as having been appointed as Higher Secondary Teacher from August, 1992, has been negatived and the petitioner has been directed to be appointed as Higher Secondary Teacher with effect from 01.03.1994.

(2.) Briefly stated, the relevant facts of the case are that the petitioner was working as a Secondary Teacher since November, 1983 at Shri Champaklal Navchetan Vidyalaya, Kapadvanj, District Kheda. She was teaching in the Secondary Section of the said school at the relevant period of time. It is stated in the petition that the petitioner possesses the academic qualifications of M.A., B.Ed., Teachers Training Course in Needle Craft and she has also passed the examination for Hindi Rastra Bhasha Ratna. An advertisement was published in the newspaper on 16.11.1991, inviting applications for appointment to the post of Higher Secondary Teacher at the Sheth M.P. Municipal School, Kapadvanj (Respondent No. 1). Pursuant thereto, the petitioner applied for the said post and appeared for the interview. The petitioner was selected for the said post, however no appointment order was given to her. The petitioner, therefore, filed an application, being Application No. 69/1992 before the Tribunal. By order dated 18.08.1992, the Tribunal disposed of the said application by directing that the applicant should be appointed as Assistant Teacher, as her selection has been made by following due procedure. The respondent school was directed to send the proposal for ratification of selection and appointment of the petitioner, within a period of 07 days from the date of the said order and respondent No. 3(District Education Officer) was further directed to ratify the selection and appointment as per the Rules, within 15 days; thereafter the order of appointment was directed to be issued to the applicant. It is the case of the petitioner that despite the aforesaid order, the petitioner was not given appointment as Higher Secondary Teacher. She, therefore, filed another application, being Application No. 189/1992 before the Tribunal. The Tribunal found that respondent No. 1-School had not carried out its earlier direction for giving appointment to the petitioner. The Tribunal also found that respondent No. 1-School had sent the proposal for appointment of the petitioner for ratification to respondent No. 3-District Education Officer. However, before any decision by respondent No. 3 could be taken, the respondent No. 1-School appointed another candidate, namely Respondent No. 5 on the post in question. This appointment was ratified by respondent No. 3, who sanctioned the payment of salary to respondent No. 5. The Tribunal, with the consent of respondent No. 5 and respondent No. 3, directed that respondent No. 5 should be treated as surplus and be absorbed in another High School at Kapadvanj. However, the claim of the petitioner for appointment with effect from August, 1992 was rejected and it was directed that the appointment of the petitioner would be with effect from 01.03.1994, which is the date on which the appointment order was given to her. Aggrieved thereby, the petitioner has approached this Court by filing the present petition.

(3.) Mrs. Vasavdatta Bhatt, learned advocate for the petitioner has submitted that the advertisement dated 16.11.1991, pursuant to which the petitioner has been appointed, shows that the post was advertised for a lady candidate. It is submitted that the petitioner was successful in the interview and was selected. Her name was placed at Serial No. 1 on the select-list prepared on 31.01.1992. That the names of only two lady candidates figured in the select- list, and the name of the other lady candidate figured below that of the petitioner. The learned advocate for the petitioner has further contended that in view of the fact that the post was advertised for a lady candidate, respondent No. 1-School could not have appointed respondent No. 5, who is a male candidate, on the said post and respondent No. 3 could not have ratified the said appointment and sanctioned the salary of respondent No. 5. The learned advocate for the petitioner further submits that the petitioner should have been appointed with effect from August, 1992, but her appointment is from 01.03.1994, on which date, she was given the appointment order. The petitioner has been put to loss of service benefits, such as difference between the salary and allowances payable to her, as Higher Secondary Teacher for the period from August, 1992 to 01.03.1994, which is wrong and arbitrary as her name figured in the select-list and she should have been appointed with effect from August, 1992. That the petitioner is being deprived of appointment with effect from August, 1992 due to the acts of omission and commission of respondent No. 1-School as well as respondent No. 3-District Education Officer, but due to no fault of her own, therefore, this is a fit case, wherein the prayers made by the petitioner deserve to be granted.