HASMUKHBHAI R MAKWANA Vs. CAMBAY EDUCATION SOCIETY

JUDGEMENT

(1.) Heard the learned counsel for the parties. The facts briefly stated for the disposal of this writ petition are as follows: The petitioner is a teacher is S.Z. Vaghela High School, Khambhat, run by Cambay Education Society. In the year 1981 the post of Principal was advertised to be filled by a Scheduled Tribe candidate. The petitioner, who belongs to Scheduled Caste, applied for the post in response to the said advertisement. The petitioner and Shri I.J. Bhatt, respondent No. 2, along with other candidates, appeared before the selection committee. The selection committee selected Shri I.J.Bhatt, respondent No. 2 herein, for the post of Principal. The petitioner has come up with the case that respondent No. 2 was not holding the requisite qualification for the post. The selection of respondent No. 2 was put in challenge by the petitioner by filing applications No. 1 of 1982 and 25 of 1982 before the Gujarat Secondary Education Tribunal. The Secondary Education Tribunal, vide its judgment and order dated 8-4-1983 dismissed the application filed by the petitioner. The petitioner has carried his challenge to the appointment of respondent No. 2 to the post of Principal further to this Court by filing special civil application No. 4056 of 1983. The aforesaid special civil application came to be allowed by this court by judgment dated 12-8-1994. The judgment of this Court in the aforesaid special civil application has been annexed to the present petition.

(2.) The challenge to the selection of respondent No. 2 has been made inter alia on the ground that the selection committee which made the selection and recommended for his appointment was not properly constituted. As per Rule 64.2 of the Grant in Aid Code as amended by the Government Resolution dated 15th February, 1979 and 26th November, 1979, the selection committee ought to have been consisted of five members. The Tribunal, while deciding the application of the petitioner, has refused to examine the effect of the Government Resolutions aforesaid on the ground that the school was not party to the proceedings before the High Court. In the petition, reference to which has been made in para 10 of the judgment, the school managment took defence that it had no knowledge about the stay having been vacated by the High Court in July, 1981. This Court accepted the writ petition and the judgment of the Tribunal delivered on 18th October, 1983 was quashed and set aside and the matter was remanded to the Tribunal for being decided afresh on merits in accordance with law.

(3.) On remand, the matter has been decided by the Tribunal vide its judgment dated 5-5-1995, copy of which is filed at annexure-E to the writ petition at pg. 35-36. The judgment is in Gujarati, but I have taken translated version thereof from the learned counsel appearing for the parties. In para 5 of the judgment the Tribunal held that the appointment of respondent No.2 on the post of Principal was not in accordance with law as the selection committee was not properly constituted, but taking into consideration the fact that respondent No. 2 has already worked on the post and he is due for retirement within a short period, his appointment was ordered to be regularised. It was further directed by the Tribunal that on retirement of respondent No. 2, the management shall make fresh recruitment to the post of Principal through a properly constituted committee, and at that time the case of the petitioner may be considered in accordance with law.