Gujarat High Court
Principal- Shri B.N.High School vs Machhi Rameshchandra Damodarbhai on 23 July, 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
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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
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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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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
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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,
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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
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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
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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
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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
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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
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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.,
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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
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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,
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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 -
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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
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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
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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
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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
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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,
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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
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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
