APP FANIBANDA Vs. MAHESHCHANDRA A BAROT

JUDGEMENT

(1.) This appeal arises out of the order passed by the learned Single Judge in Special Civil Application No. 5609 of 1996 decided on July 31, 1996.

(2.) Short facts are that for filing up a post of Principal in D.K. Tata High School, Navsari, selection procedure was undertaken. Public advertisement dt. February 17, 1995 was issued and interview was held on March 18, 1995. The Selection Committee selected one Bomi Jagirdar as Principal and an order of appointment was issued on March 18, 1995 appointing Bomi Jagirdar with effect from June 1, 1995. Maheshchandra Atmaram Barot, (respondent herein), who was one of the candidates and was not selected, filed Application No. 181 of 1995 in the Gujarat Secondary Education Tribunal, Ahmedabad, challenging process of selection. Bomi Jagirdar, who was selected as Principal also filed Application No. 189 of 1995 in the Tribunal apprehending his termination. The appellant was not a candidate but a trustee. He had not filed any substantial application in the Tribunal. He, however, filed an application before the Tribunal in Application No. 181 of 1995 raising a preliminary objection that the Tribunal had no jurisdiction to entertain application filed by Mr. Barot and hence the petition was not maintainable. It was contended that since the case did not fall under Sec. 38 of the Gujarat Secondary Education Act, 1972, such petition would not lie. A prayer was made to treat the said issue as preliminary issue and to decide at the threshold. The Tribunal vide its order below the said application, rejected it observing therein that objection regarding jurisdiction of the Tribunal would be decided alongwith the main matter. Against that order the appellant filed Spl. C.A. No. 5609 of 1996 and as stated above, the learned Single Judge rejected the said petition and confirmed the order passed by the Tribunal. It is against this order that the present petition is filed.

(3.) Mrs. K.A. Mehta, learned counsel for the appellant contended that the Tribunal has committed an error of law apparent on the face of the record in not granting application filed by the appellant. The same error has been committed by the learned Single Judge. It was argued that when there is inherent lack of jurisdiction in the Tribunal in entertaining the petition, the issue regarding jurisdiction of Tribunal ought to have been tried as preliminary issue. By ordering the question to be decided at the stage of final hearing of the application, the Tribunal has committed an error of jurisdiction. This is, therefore, a fit case in which writ of prohibition is required to be issued against the Tribunal. It was contended that when the case does not fall within the purview of the Gujarat Secondary Education Act, 1972, the Tribunal ought not to have entertained the application filed by Mr. Barot. It was submitted that almost in similar circumstances Special Civil Application No. 2213 of 1996 has admitted by issuing Rule and granting interim relief.