Gujarat High Court
Principal- Shri B.N.High School vs Machhi Rameshchandra Damodarbhai on 23 July, 2025
NEUTRAL CITATION
C/SCA/9607/2010 ORDER DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9607 of 2010
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PRINCIPAL- SHRI B.N.HIGH SCHOOL & ANR.
Versus
MACHHI RAMESHCHANDRA DAMODARBHAI & ANR.
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Appearance:
MR. G.M. JOSHI FOR MR. VYOM H SHAH(9387) for the Petitioner(s) No. 1,2
MR. PARTH PATEL, AGP for the Respondent(s) No. 2 - STATE
MR. SUDHANSHU A JHA(8345) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/07/2025
ORAL ORDER
Rule returnable forthwith. Mr. Sudhanshu Jha, learned advocate for the respondent No.1 and Mr. Parth Patel, learned Assistant Government Pleader for the respondent No.2-State waives for service of notice of rule on behalf of respective respondents.
1. The present petition is filed by the petitioners for seeking the following reliefs:
"5(A) Be pleased to issue an appropriate writ, order or direction quashing and setting aside the impugned judgment and order dated 07.09.2009 passed by the learned Gujarat Secondary Education Tribunal in Application No.74/2004;
(B) Pending admission, hearing and final disposal of this Page 1 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined petition, be pleased to stay the operation, implementation and execution of the order dated 07.09.2009 passed by the learned Gujarat Secondary Education Tribunal in Application No.74/2004 and be further pleased to stay further proceedings of the Darkhast Application filed by respondent No.1 in the learned Tribunal being Darkhast No.13/2010;
(C) Be pleased to pass such other and further order(s) as may be deemed just and proper in the circumstances of the case."
2. Brief facts as stated in the memo of the petition are as under:
2.1 It is the case of the petitioners in this petition that the respondent No.1, Machhi Rameshchandra Damodarbhai, a resident of Chandod, approached the petitioners to conduct classes in their school for the purpose of getting some experience so that in future he may get some employment etc. It is further the case of the petitioners in this petition that because of Government cut in employment, there was no recruitment at that time and the petitioners allowed him to conduct classes and he continued to work there and he was Page 2 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined being paid some honorarium for that. However, later on when there was no need, he was asked to leave but he approached the Gujarat Secondary Education Tribunal with a request to reinstate him as he was a regular teacher in that school. It is further the case of the petitioners in this petition that he was appointed in a lawful manner on a clear vacancy on 05.07.1996 and that the school had published an advertisement in response to which he was recruited etc. It is further the case of the petitioners in this petition that the appointment order was taken back by the Secretary.
However, he had not made any complaint to the DEO. The learned Tribunal passed an order whereby the application filed by respondent No.1 came to be partly allowed and the relief about setting aside the oral termination and reinstatement is rightly not accepted and granted. However, on the basis of principle of quantum meriut, the learned Judge directed the school management to calculate the difference of the amount of allowance, salary etc. from 05.07.1996 to 29.02.2004 and to pay him within three months and to pass consequential directions.
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NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined 2.2 It is further the case of the petitioners in this petition that the petitioners thereafter challenged the legality, validity and propriety of the order passed by the Tribunal but their petition was disposed of for want of removal of office objections and MCA for restoration being No.1555 of 2010 came to be allowed by this Hon'ble Court and the petition came to be revived and as the said petition was found technically not proper, the same was sought to be withdrawn and was withdrawn vide order dated 03.08.2010 of this Court with liberty to file fresh petition on the same subject matter. Hence, the present petition has been preferred.
3. Heard Mr. G.M. Joshi, learned senior advocate with Mr. Vyom Shah, learned advocate for the petitioners, Mr. Sudhanshu Jha, learned advocate for the respondent No.1 and Mr. Parth Patel, learned Assistant Government Pleader for the respondent No.2-State.
4. Mr. G.M. Joshi, learned senior advocate with Mr. Vyom Shah, learned advocate for the petitioners has submitted that appointment of the respondent No.1 has been done without following any procedure and without Page 4 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined giving any public advertisement and it is only on the basis that he was residing in particular village and was asked to attend the school as an honorary service and, therefore, the order has been passed by the Gujarat Secondary Tribunal in Application No.74 of 2004 is erroneous. He has further submitted that the appointment of respondent No.1 is not at all in consonance with Section 35 of the Gujarat Secondary Education Act. He has further submitted that the petitioner-institute is a grant-in-aid institute, where 100% grant is paid by the Government in turn of deposit of entire fees income with the State Government and, therefore, the Tribunal has failed to consider that the relief of reinstatement is not possible to be granted even as per law and the salary and allowances could not have been awarded because there was neither any regular employment nor any clear appointment in favour of respondent No.1. He has submitted that there was no procedure whatsoever followed while keeping respondent No.1 in the institute and, therefore, the Tribunal has committed gross error. He has relied upon the judgment of the Hon'ble Apex Court in the case of State of Orissa vs. Mamata Mohanty reported in MANU/SC/0110/2011, Page 5 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined more particularly, paragraphs 18, 19 and 36 of that judgment are relevant and has submitted that the present petition is required to be allowed by granting the reliefs as prayed for in the present petition and by quashing and setting aside the impugned order dated 07.09.2009 passed in Application No.74 of 2004 by the Gujarat Secondary Education Tribunal.
5. Per contra, Mr. Sudhanshu Jha, learned advocate for the respondent No.1 has strongly opposed the submissions made at the bar by learned advocate for the petitioners and has submitted that the respondent No.1 has worked with the institution for certain long period as the respondent No.1 was working in the institution since 05.07.1996 in B.N. High School, Chanod as Assistant Teacher as the respondent No.1 was holding B.A. and M.A. qualification. He has submitted that the respondent No.1 has served as full time and his pay was also fixed. He has further submitted that the respondent No.1 has been examined and cross-examined along with other witnesses and, thereafter, the Tribunal has come to the conclusion by rejecting the prayer for oral termination and reinstatement, however, the Tribunal has Page 6 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined rightly held that the respondent No.1 is entitled to receive full pay as assistant teacher with allowances from 05.07.1996 to 28.02.2004 and the school management shall calculate the said amount with all allowances and issue account payee cheque for the difference of amounts within three months and if it is not paid within three months, the present petitioner, who is respondent before the Tribunal has to pay interest at the rate of 9% p.a. He has submitted that the direction of the Tribunal is justified by invoking the principles of "quantum meruit". In support of his submissions, he has relied on the judgment dated 03.10.2016 passed by the Co-ordinate Bench of this Court in Special Civil Application No.1351 of 2005, more particularly, paragraphs 3.1, 4.4 to 4.6 and 6 and 7 are relevant and therefore, he has submitted that the present petition is required to be dismissed.
6. Mr. Parth Patel, learned Assistant Government Pleader for the respondent No.2-State has submitted that essentially the dispute is between the employee and institute and the State Government has limited say in the matter and has prayed that appropriate order may Page 7 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined be passed in accordance with law.
7.1 I have considered the rival submissions made at the bar. I have gone through the order passed by the Co- ordinate Bench of this Court while admitting the present petition on 20.08.2010, which reads as under:
"Rule. By way of interim relief the judgment and award of the Tribunal is stayed on condition that the petitioners will deposit the amount of salary for the period from 5.7.1996 to 29.2.2004 before the Tribunal within a period of six months from today. On deposit the said amount will be invested in a fixed deposit with a nationalized bank initially for a period of three years which shall be renewed from time to time. Notice for confirmation of interim relief returnable on 4.10.2010."
7.2 Pursuant to that, it is reported that the amount is still lying in fixed deposit.
7.3 Now, considering the rival submissions made at the bar, it is the case of the learned advocate for the petitioners that when the recruitment process is not followed by way of public advertisement, such appointment, pursuant to without following any Page 8 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined advertisement, is not required to be considered as valid and legal appointment. Furthermore, considering the submission that a person employed in violation of provisions of law is not entitled to any relied including salary. Furthermore, considering the submission of learned advocate for the petitioners that for valid and legal appointment, mandatory compliance of said constitutional requirement is to be fulfilled the equality clause enshrined in Article 16 of the Constitution of India requires that every such appointment be made by an open advertisement as to enable the eligible persons to compete on merits.
7.4 Furthermore, considering the contention on behalf of learned advocates for the respondent No.1 that in view of the principle of quantum meruit, whereby it provides that when the person has worked for the certain post and discharged his duties, then that person is entitled to get the payment for that particular work. 7.5 It is fruitful to refer the judgment of the Hon'ble Apex Court relied upon by learned senior advocate for the petitioners in the case of State of Orissa vs. Mamata Mohanty reported in MANU/SC/0110/2011, more Page 9 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined particularly, paragraphs 18, 19 and 36 of that judgment are relevant, as under:
"18. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide:
Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789;
State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 Page 10 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined SC 2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
19. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
36. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Administration & Anr v. Jagjit Singh & Anr., Page 11 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined AIR 1995 SC 705;
Yogesh Kumar & Ors. v. Government of NCT Delhi & Ors., AIR 2003 SC 1241; M/s Anand Buttons Ltd. etc. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; Maharaj Krishan Bhatt & Anr. v. State of Jammu & Kashmir & Ors., (2008) 9 SCC 24; Upendra Narayan Singh (supra); and Union of India & Anr. v. Kartick Chandra Mondal & Anr., AIR 2010 SC 3455).
This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji & Ors. v. State of A.P. & Ors., AIR 1993 SC 1048 observed as under:
"...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'".
(See also re: Sanjiv Datta, Dy. Secy., Ministry of Page 12 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined Information & Broadcasting, (1995) 3 SCC 619; Nirmal Jeet Kaur v. State of M.P. & Anr., (2004) 7 SCC 558; and Mayuram Subramanian Srinivasan v. CBI, AIR 2006 SC 2449). "
7.6 It is also fruitful to refer the judgment relied upon by learned advocate for the respondent No.1 dated 03.10.2016 passed by the Co-ordinate Bench of this Court in Special Civil Application No.1351 of 2005, more particularly, paragraphs 3.1, 4.4 to 4.6 and 6 and 7 are relevant, as under:
"3.1 By way of the present petition, the petitioner has challenged the order only to the extent of it being under Application No. 134 of 2000 and not that governing Application No. 78 of 2003. In other words, what is challenged by way of this petition is the fact that the Tribunal has denied the petitioner the salaries for the period which the applicant - petitioner appears to have worked.
4.4 After having heard the arguments of the respective parties, the Tribunal on perusal of the records before it came to a finding of fact that except for the resolution dated 21.08.1999, the Gram Panchayat did not follow the procedure of selection and in fact the resolution in question was passed without taking into consideration the other members of the Panchayat and on the basis of the report, Page 13 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined it was apparent that the Sarpanch had maintained a parallel record and the resolutions were recorded in a note- book separately and not in the original resolution book. It was in light of these facts that the Commissioner of Schools and subsequently the DEO thought it fit to cancel the approval granted to the appointment of the original applicant - present petitioner.
4.5 In support of the submissions by the original applicant, it was urged by the original applicant - present petitioner's counsel that in view of the fact that though the approval was cancelled on 20.01.2001 and subsequently confirmed on 23.11.2001, he continued to serve with the Panchayat as Head Master till 11.02.2003 and therefore the present petitioner is entitled to claim salaries for having worked in the interregnum.
4.6 On reading of the judgement impugned before this court, the fact which cannot be lost sight of is that a finding of fact has been arrived at by the Tribunal that though initially the DEO had supported the petitioner's case inasmuch as the N.O.C was granted and the approval was given to the appointment, subsequently at the behest of the Taluka Development Officer when it was brought to the notice of the concerned authorities that the procedure described under The Gujarat Secondary and Higher Secondary Education Act, 1972 (hereinafter referred to as 'the Act') was not followed in appointing the petitioner inasmuch as the selection committee was not validly constituted, the appointment of the original applicant -Page 14 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025
NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined present petitioner not being in accordance with the procedure thereby the appointment itself was void ab initio.
6. To this contention, Ms. Reena Kamani joined issue on the fact that once having appointed and having worked on the post from 15.12.1999 to 11.02.2003, if the petitioner has discharged his duties as Head Master, he cannot be denied salary on the basis of quantum meruit particularly when this court by an order dated 07.02.2005 had issued notice on that limited count.
7. In the opinion of this court, particularly in view of the fact that the Tribunal has on the facts of the case come to the categorical finding on the basis of the records available before it that the appointment of the petitioner itself was found to void ab initio and when such finding of fact has not been challenged by the petitioner by way of a writ petition and when the challenge is only restricted to the quantum of salary, the petitioner cannot approbate and reprobate inasmuch as not challenging the finding of his appointment being illegal and only challenging to the extent of payment of salary. Be that as it may. If the petitioner has continued to serve as a Teacher under the Gram Panchayat on and from 15.12.1999 to 11.02.2003, once the Commissioner of Schools and the DEO subsequently have found that the appointment was not in accordance with the procedures described under the provisions of the Act, no fault can be found on the part of the authorities to pay the salaries for the period in question and though the school, as has been pointed out by Ms. Vashi, learned Page 15 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined advocate, is a grant-in-aid school, for the period from 15.12.1999 to 11.02.2003, the finding of fact by the Tribunal that the petitioner shall not be entitled to salaries cannot be faulted."
7.7 Furthermore, considering the above settled position of law and considering the fact that it is undisputed fact in the present matter that the present respondent No.1 has not been appointed by following necessary procedure prescribed under the law, more particularly, by publishing the advertisement and by inviting the applications, it transpires that the respondent No.1 was probably residing in the same village and with a view to get some experience, the respondent No.1 was offered job in the school i.e. by the petitioners to impart education in the school but the respondent No.1 cannot be considered as contractual or regular employee. 7.8 Though the Tribunal has not granted any benefit of reinstatement, the Tribunal has committed error in granting benefit of payment of salary for full pay as assistant teacher with allowances from the period 05.07.1996 to 28.02.2004, for which, in view of the above, the respondent No.1 is not entitled to get such salary or allowances as the respondent No.1 was rendering Page 16 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined honorary service.
7.9 It is fruitful to refer Section 35 of the Gujarat Secondary Education Act, 1972, which reads as follows:
"Section 35 Registered private secondary schools [and registered private higher secondary schools] [These words inserted by Gujarat 14 of 2002, dated 6th April, 2002.] to have Selection Committees.
(1) For every registered private secondary school [and every registered private higher secondary school] [These words inserted by Gujarat 14 of 2002, dated 6th April, 2002.] there shall be following two committees, namely:
(a) a school staff selection committee for the purpose of recruiting the teaching staff of the school other than the head-master,
(b) a special school committee for the purpose of recruiting the headmaster and for the purpose of the initial recruitment of the headmaster and the teaching staff of a school started after the appointed day.
(2) The school staff selection committee shall consist of the following members, namely:
(i) Two representatives of the management of the school to be nominated by the management.
(ii) The headmaster of the school.
(iii) In the case of a school the total number of teachers in which is more than six, two teachers to be elected by the teachers of the school from amongst themselves, and in the Page 17 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined case of a school the total number of teachers in which is or is less than six, one teacher to be elected by the teachers of the school from amongst themselves; and
(iv) One representative of the Board to be nominated by the Board.
(3) The special school committee shall consist of the following members, namely:
(i) Two representatives of the management of the school to be nominated by the management.
(ii) Two representatives of the Board to be nominated by the Board.
(4) Subject to the provisions of sub-section (1) of Section 34, the school staff selection committee or, as the case may be, the special school committee shall select persons for appointment as teachers of the school from amongst the persons [who are qualified to be appointed as such in accordance with the regulations made in this behalf] [Substituted for 'whose names appear in any of the registers prepared and maintained by the Board under Clause (13) and (14) of Section 17' by Gujarat 32 of 1978, dated 29lh September, 1978.]:
Provided that, for the purpose of such selection preference shall be given to a protected teacher, if he is otherwise eligible.
(5) The special school committee shall select persons for appointment to the post of headmaster of the school from amongst persons referred to in sub-section (4) or from Page 18 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined amongst the teachers in the school:
Provided that, for the purpose of such selection, preference shall be given to a senior teacher [ serving in the school or schools under the same management] [Substituted for 'serving in the school' by Gujarat 32 of 1978, dated 29th September, 1978.], if he is otherwise eligible and suitable.
(6) Whenever the persons from amongst whom a teacher or a headmaster is to be selected includes a person who is related to any member of the governing body or other body in charge of the management of the school or to any member of the school-staff selection committee or, as the case may be, the special school committee, the member concerned of such committee, shall disclose the fact of such relationship to the members of the Committee and if any such person is selected by the Committee, his selection shall be subject to approval by an officer of the Board authorised in that behalf. Such approval shall be sought by the Committee within a week from the date of selection of the persons concerned and the authorised officer of the Board shall communicate his decision within fifteen days from the date of receipt of the reference by him.
(7) Any appointment of a head-master or a teacher made in contravention of the provisions of this section shall be ineffective."
7.10 Considering the same, when the Tribunal has found that the appointment of the respondent No.1 is not in consonance with Section 35 of the Act and, Page 19 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined therefore, there is no question to grant any amount towards salary by directing the petitioner to pay such salary to the respondent No.1. The principles of "quantum meruit" is not applicable in the facts of the present case, whereby it is specifically held by the Tribunal on one hand that the appointment is not in accordance with law then there is no question to grant any such benefit of all the salaries and allowances for period 05.07.1996 to 28.02.2004, which is otherwise not permissible in law and the respondent No.1 is not entitled to receive the same as he is neither regular employee nor contractual employee nor he was selected by following necessary procedure pursuant to any public advertisement.
7.11 In view of the above discussion, I am of the opinion that the Tribunal has committed serious jurisdictional error in granting the benefits to the respondent No.1 by way of impugned order, which is not in consonance with law and also the said order is against the settled principle of law and, therefore, I found that this is a fit case where the Court should interfere in the finding given by the learned Tribunal, as such findings are found improper, illegal and bad in the Page 20 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025 NEUTRAL CITATION C/SCA/9607/2010 ORDER DATED: 23/07/2025 undefined eyes of law. Hence, the present petition is required to be allowed by granting the prayers in terms of paragraph 5A of the present petition by quashing and setting aside the impugned order dated 07.09.2009 passed in Application No.74 of 2004 by the Gujarat Secondary Education Tribunal whereby the petitioner is directed to pay the salaries and allowances in accordance with law.
8. In view of the above, the present petition is allowed in terms of paragraph 5(A) of the present petition.
9. The impugned order dated 07.09.2009 passed in Application No.74 of 2004 by the Gujarat Secondary Education Tribunal is hereby set aside. Rule is made absolute accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 21 of 21 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Jul 31 2025 Downloaded on : Sat Aug 02 00:16:28 IST 2025