PRABHAKAR J BADHEKA Vs. J K MODI

JUDGEMENT

(1.) Heard learned Counsels for the parties. Challenge in this writ petition has been made by the petitioners to the order dated 8-2-1983 of the Tribunal constituted under the Gujarat Secondary Education Act, 1972 made in Application No. 291 of 1982. In Application No. 291 of 1982, the petitioners have challenged the appointment of respondent No. 2 on the post of Head Master of Shree S. V. Virani High School at Rajkot. The facts relevant in this writ petition are briefly stated. The Head Master of the school retired on 21-11-1980 on reaching the age of superannuation. To fill up that post, the management of the school invited applications from the persons who worked as Secondary Teachers as well as from experienced Higher Secondary Teachers. In response to the said advertisement, number of applications including that of respondent No. 2 have been received. The Selection Committee has interviewed and found respondent No. 2 as meritorious to be appointed to the post of Head Master. This appointment has been challenged by six persons including the present petitioners before the Tribunal constituted under the Gujarat Secondary Education Act, 1972. The Tribunal under its judgment dated 18-10-1982 accepted Application No. 61 of 1981 and appointment of respondent No. 2 as Head Master was declared to be invalid and inoperative in law on three counts. The first count given was that the applicant was not called for interview and as such he has been deprived of his right of consideration for appointment. It has next been held that, even if the applicant has not given the application, then too, the management had failed to obtain his consent in writing that he did not intend to apply for the post. The last count given was that the Selection Committee was not properly constituted as required under the amended provisions of Rule 64(2) of the Grant-in-Aid Code. After the decision of the Tribunal, the Selection Committee of five members was constituted and the case of the petitioner was considered for appointment to the post of Head Master of the institution, but the Selection Committee has recommended for the appointment of respondent No. 2. On the recommendation of the Selection Committee, respondent No. 2 was appointed. The petitioner, as stated earlier, has challenged that appointment before the Tribunal again and vide the impugned order the appointment was held to be valid.

(2.) Learned Counsel for the petitioners had challenged the validity of the order of the Tribunal, referred above, on the ground that the Selection Committee was not properly constituted again and that Shri Antani has wrongly been taken as one of the members of the Selection Committee. Referring to the provisions of Sec. 35, sub-sec. (3), the Counsel contended that Shri Antani was not the member of the Management Committee of the School. He was only the Secretary of the School, that is, an employee of the School. Under clause (1) of sub-sec. (3) of Sec. 35, only the representative of management should have been nominated as a member of the Selection Committee by the management. It has next been contended that Shri Antani and Shri Swadiya who were members of the Selection Committee on the previous occasion when selection of respondent No. 2 was made, they should not again have been included as members of the Selection Committee. An application has been given by the petitioner to the Selection Committee before it met objecting to the inclusion of the aforesaid two persons as members of the Selection Committee. The learned Counsel for the petitioners contended that Shri Antani and Shri Swadiya have acted mala fide in the present case. Respondent No. 2 has been favoured by these two persons in his selection. Lastly, learned Counsel for the petitioners contended that the Tribunal has wide powers in the matter of the challenge made before it to the appointment of a teacher on the recommendation of the Selection Committee. Relying on the decision of this Court in the case of Maganbhai Bhikhabhai Mistri v. Olpad Taluka Azaddin, reported in 1982(1) GLR 664, learned Counsel for the petitioners contended that the Tribunal has committed an error in holding that it is not open to it to question the evaluation made by the Selection Committee. Learned Counsel for the petitioners has further contended that the Tribunal has proceeded on a wrong assumption that the objective and subjective tests adopted by the Selection Committee for selecting best candidate could not be a question of challenge before the Tribunal. The Tribunal is not sitting in appeal against the decision of the Selection Committee.

(3.) On the other hand, Shri Mishra learned Counsel for the respondents has supported the order of the Tribunal. Relying on the decision of the Supreme Court in the case of Dalpat Abasaheb Solunke v. B. S. Mahajan, reported in AIR 1990 SC 434, Shri Mishra contended that in the matter of selection of teachers by Selection Committee, this Court has only limited judicial power of review. Selections are questionable on the ground of some procedural illegality committed or the members of the Selection Committee have acted mala fide. I have given my thoughtful consideration to the submissions made by learned Counsel for the parties. The contention that Shri Antani could not have been taken as a member of the Selection Committee is devoid of any substance. The petitioner has not raised this objection before the Tribunal. It is now not open to the petitioner in the writ petition to raise any new point which has been raised before the Tribunal. When this point has not been raised, it cannot be said that the Tribunal has committed any error in passing of the impugned order. Sub-sec. (3) of Sec. 35 of the Gujarat Secondary Education Act, 1972 provides that Special Selection Committee shall consist of members including two representatives of the management of the school to be nominated by the management. Learned Counsel for the petitioners has failed to show any authority in support of his contention that only the persons who are the members of the management of the school could have been nominated and not the employees of the school or third persons. Clause (i) of sub-sec. (3) of the Sec. 35 of the Act of 1972 nowhere puts any such requirement, but only requires that on the Selection Committee two representatives of the management of the school should be there. The representative may be the member or may be an employee or an outsider. In view of this fact, the first contention of the learned Counsel for the petitioners is not acceptable.