MANAGING TRUSTEE Vs. MAHANBHAI R BHANGI

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution of India. The question which is required to be decided in this Special Civil Application is whether a person who has not been given appointment order in an educational institution can challenge the decision of the institution making a complaint of not giving him appointment order by invoking Section 38(1) of Gujarat Secondary Education Act 1972 (hereinafter referred to as the said Act).

(2.) The facts giving rise to this Special Civil Application are as under: That the petitioner no.1 is the Managing Trustee of Shri Jagatguru Shankaracharya Maharaj Kelvani Trust which is registered under the provisions of Bombay Public Trust Act. The petitioner no.2 is the Principal of Shri Jagatguru Shankaracharya Maharaj Utter Buniadi Vidyalay which is being run and managed by the petitioner no.1-Trust. The respondent no.1 herein had filed an application before the Secondary Education Tribunal, Ahmedabad by invoking section 38(1) of the said Act. Aforesaid application is at Annexure-B to the this petition. In the application before the Tribunal, the respondent no.1 has stated that there is a school named Shri Jagatguru Shankaracharya Maharaj Utter Buniadi Vidyalaya, At-post Shankaracharya Nagar, Taluka Matar, District Kheda. That the said school had taken interview for filling in the post of peon and for that purpose the respondent no.1 herein was called for personal interview on 13.11.85 and accordingly he had remained present in the interview with all the necessary documents. According to him , his name was kept in the select list at Sr.No.2 and even though the candidate at Sr.No.1 in the select list did not resume duties, yet he being second inthe select list was not given appointment order by the Institution. The respondent no.1 therefore, had given a notice to the institution requesting them for giving him appointment order for the post of peon. The fact that he was at Sr.No.2 in the select list was not known to him but he was so told by the DEO. That thereafter, he made repeated requests to the management of the institution for giving him appointment order but the same was not given to him. That according to him, the DEO had informed the management that if the appointment order is not given to the petitioner deduction of 5% grant will be made and inspite of the same, no appointment order was given to him. The respondent no.1 further stated that though he was selected, he has not been given appointment order by the management and therefore, it was prayed by the respondent no.1 in his application before the Tribunal that the opponents nos 1 and 2 who are the present petitioners herein should be directed to give appointment order to the respondent no.1. The respondent no.1 has also prayed for interim relief before the Tribunal that the management may be restrained from giving appointment order to any one else except him. While admitting the said application, the Tribunal issued notice to the opponents and granted ex-parte interim injunction restraining the opponent school from appointing any one else other than the applicant on the post of peon. Copy of the interim injunction granted by the Tribunal is at Annexure.C to the petition.

(3.) Present petitioners who were opponents before the Tribunal gave their reply which is at Annexure.D to the petition. It was pointed out by them in their reply that in the interview which was taken by the school, the respondent no.1 herein stood at Sr.No.3, in the select list while respondent no.3 Raghavbhai Khimabhai Chosla stood second in the interview and accordingly he was placed at Sr.No.2 and therefore, when the candidate at Sr.No.1 did not join duties inspite of appointment order given to him, naturally the candidate at Sr.No.2 in the orderof selection in the select list was given appointment order and that since the respondent no.1 original applicant before the Tribunal stood at Sr.No.3 in the select list, naturally the appointment order was given to the respondent no.3 who was at Sr.Mo.2 in the select list. They also stated that the application was made on absolutely incorrect facts. It was also pointed out in the reply that since no appointment order was given in favour of the respondent no.1-who was the original applicant before the Tribunal, no contract of employment was entered into and therefore, the application before the Tribunal was not maintainable at all.