SCA/1118/1990 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1118 of 1990 With SPECIAL CIVIL APPLICATION No. 2222 of 1995 With SPECIAL CIVIL APPLICATION No. 9789 of 1996 With SPECIAL CIVIL APPLICATION No. 871 of 1997 With SPECIAL CIVIL APPLICATION No. 6068 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JHALOD KELAVANI MANDAL & 2 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR AMIT M PANCHAL for Petitioner(s) : 1 - 3. M/S TRIVEDI & GUPTA for Respondent(s) : 1 - 2. None for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 14/03/2008 SCA/1118/1990 2/10 JUDGMENT ORAL JUDGMENT 1. As in all the petitions, more or less common facts and common questions arise, they are being considered by this common judgement. 2. Special Civil Application No.1118/90 is preferred for the relief to quash and set aside the order dated 30.08.1989, and to command the respondent No.2 to accord approval to the petitioner to the selection of the candidates made by the Committee on 11.08.1989. The petitioner has also prayed for quashing and setting aside the Government Resolution dated 05.08.1989 and 30.08.1989, which pertains to abolition of the post of second head/principal in the school. 3. It appears that in Special Civil Application No.1118/90, this Court on 18.04.1990, after hearing both the sides, while admitting the petition granted interim relief in terms of para 16(b) directing the respondent to accord provisional approval to the Selection Committee on 11.08.1989 (Annexure-H). 4. Special Civil Application No. 2222/95 is preferred by the Ahmedabad City Secondary and Higher Secondary School for the relief inter alia to quash and set aside the Govt. Resolution dated 05.08.1989 and to quash and set aside the communication of the District Education Officer SCA/1118/1990 3/10 JUDGMENT (DEO) to the petitioner No.3 on 28.02.1995 and 01.03.1995 to the petitioner No.4. It appears that the Government Resolution dated 05.08.1989 pertains to the abolition of the post of Second Head and the DEO in turn based on the Resolution, declined the permission for filling up of the post. In the said petition, in view of the earlier interim relief granted by this Court in Special Civil Application No. 1118/90, this Court vide its order dated 18.11.1995 had granted the interim relief in terms of para 12(b), whereby the DEO is directed to grant No Objection Certificate to the petitioners and DEO is further restrained from interfering with the appointment of Second Head by the petitioner Nos. 3 & 4. 5. Special Civil Application No. 9789/96 is preferred by the Sharda Education Trust for the same relief as in Special Civil Application No. 2222/95 for challenging the Government Resolution dated 05.08.1989 and it is also prayed for quashing of the consequential communication by the DEO to the petitioner dated 29.11.1996. In the said petition also, this Court on 17.12.1996, has granted interim relief in terms of para 6(B) directing the DEO to grant NOC to the petitioner for appointment of Second Head and to restrain him from interfering with the appointment of the Second Head by the petitioner. SCA/1118/1990 4/10 JUDGMENT 6. Special Civil Application No. 871/97 is preferred by Ranuj Kelavani Mandal for the similar relief for challenging the legality and validity of the Government Resolution dated 05.08.1989 and to challenge the consequential communication dated 04.01.1997 by DEO and it is also prayed to direct the respondents to grant NOC for appointment of Second Head in the School of the petitioner. In this petition also, on 29.01.1997, this Court in view of the earlier orders passed in the above Special Civil Applications, did grant the interim relief in terms of para 11(D), whereby, the DEO is directed to grant NOC to the petitioner Trust for appointment of Second Head in the School and the respondents are restrained from interfering with the appointment of Second Head made by the petitioner Trust. 7. Special Civil Application No. 6068/99 is preferred by the Ahmedabad Education Public Trust for challenging the legality and validity of the Government Circular dated 05.08.1989 and also for quashing of the consequential communication dated 29.07.1999 issued by the District Education Officer. In this petition also, in view of the earlier orders passed by this Court on 17.08.1999, this Court had granted interim relief in terms of para 8(B), whereby the DEO is directed to issue NOC to the SCA/1118/1990 5/10 JUDGMENT petitioner for appointment of Second Head and is further restrained from interfering with the appointment of the second School Head by the petitioner. 8. When the matter is taken up for final hearing, Mr Rawal for Mr. A.D.Oza for the Board has placed on record the copy of the order dated 30.01.2006 passed by this Court (Coram:M.R.Shah,J.) in Special Civil Application No. 7188/99 in the case of Ajaybhai N Choksi Vs, State of Gujarat & Ors., wherein, based on the earlier decision of this Court in Special Civil Application No. 1638/00, whereby the petition has been dismissed. 9. The pertinent aspect is that at the relevant point of time, when the petitions were entertained and admitted by this Court, the Regulations framed by the Board did provide for Second School Head in the School. But, the Government took the decision of abolition of such post. So long as the regulation stood, the decision of the Government for abolition of the post of Second Head, as such, could not be maintained and therefore, it appears that at the relevant point of time, petitions were admitted and the interim reliefs were also granted. 10.In the above referred decision of this Court in Special Civil Application No. 7188/99, it has been observed at para 4 as under: SCA/1118/1990 6/10 JUDGMENT “4. Heard the learned advocates appearing on behalf of the petitioner. From the pleadings and the averments on behalf of the petitioner it appears that the main contention on behalf of the petitioner was that in view of the statutory provisions more particularly Regulation No. 19(4) it was not open for the State Government to issue Government Resolution dated 5.8.1989 to abolish the post of Second Head. Now, by subsequent Resolution the Board itself has decided to delete the Regulation No. 19(4) and to abolish the post of Second Head. Subsequently, the State Government has accepted the same and by notification dated 11.7.2000 the Regulation No. 19(4) came to be deleted and the post of Second Head has been abolished. An identical question came to be considered by the learned Single Judge of this Court in Special Civil Application No. 1638 of 2000 and other cognate matters where the learned Judge, considering the fact that the Regulation No. 19(4) has been deleted and the post of Second Head has been abolished, held that the order passed by the District Education Officer refusing to grant NOC to fill-up the post of Second Head is legal. The order passed by the learned Single Judge dated 28.6.2001 in the abovesaid Special Civil Applications reads as under; “In these Special Civil Applications, the petitioner has been challenging order dated 27.11.1979 Annexure "C" whereby respondent No.2 District Education Officer refused "NO OBJECTION CERTIFICATE" for the appointment of Second Head in the School run and managed by the petitioner- trust. Perusal of Annexure C, the impugned order, SCA/1118/1990 7/10 JUDGMENT suggests that "NO OBJECTION CERTIFICATE" for appointment to the post of Second Head was refused for the reason of the post of Second Head having been abolished pursuant to Resolution dated 5.8.1989 passed by the Government in the Education Department. Thus, refusal to grant "NO OBJECTION CERTIFICATE" for the appointment to the post of Second Head in the School run and managed by the petitioner trust is because of the abolition of the said post. It need hardly be said that it is only when there is post of Second Head in the School, the request for grant of NO OBJECTION CERTIFICATE for appointment to the post of Second Head would arise because the availability of the post of Second Head would be the prerequisite and it is only thereafter the question of grant of NO OBJECTION CERTIFICATE for appointment to the said post would arise for consideration. 2. In view of the above, the petitions being devoid of merits are liable to be dismissed. However it would be open to the petitioner to seek relief in accordance with law as regards the Resolution abolishing the post of Second Head deleting Regulation 19(4). The petitions are dismissed. Notice discharged. In view of the above and considering the SCA/1118/1990 8/10 JUDGMENT fact that the Regulation No. 19(4) has been deleted and the post of Second Head is now abolished, the contention on behalf of the petitioner will not survive and cannot be accepted. Under the circumstances, the present Special Civil Application is required to be dismissed.” 10.Therefore, the development appears to be that, pending the petitions, Regulation No.19(4) for the post of Second Head is amended and consequently, the post of Second Head is abolished even in the regulation itself framed by the Board. The State Government thereafter has accepted the said modification in the regulation and as a consequence thereof, the post of Second School Head has stood abolished. In view of the aforesaid change in the statute and more particularly the amendment in the regulation, when the posts are abolished in the regulation as well as by the Government, the contention of the petitioners that the post of Second Head remains and must be allowed to be continued would no longer survive. Further, if the post does not exist, there would not be any obligation to grant NOC for filling up of the post. 11.Under the above circumstances, as now the post is also abolished in view of the amendment in the Regulation No.19(4) of the Second School Head, and if the Government has acted on the same line for abolition of the post of Second School Head, such decision cannot be said as SCA/1118/1990 9/10 JUDGMENT arbitrary or unreasonable. It is required to be recorded that creation and/or abolition of post is essentially the domain of the employer or the management, to be decided keeping in view the various circumstances germane to the exercise of the power and based on such decision, if the regulations are amended, there would not be any valid justification to continue with the post of Second Head. 12.In view of the above, the challenge of the petitioners to the Government Resolution dated 05.08.1989 cannot be accepted. Since by virtue of the interim order, provisional NOC came to be granted, it is possible that the person concerned may have been appointed and may have worked on the post of Second School Head. Therefore, on account of the abolition of the post, such person may be required to be reverted or absorbed at the lower level, if he or she is working in pursuance to the interim order passed by this Court. 13.Mr.Vyas, learned counsel appearing for the petitioners however contended that on the ground that the interim relief has been vacated, the recovery may not be effected by the DEO towards the payment of the salary from the school or the person concerned. 14.In my view, when the post has continued under the interim orders and the person concerned has SCA/1118/1990 10/10 JUDGMENT actually worked, naturally, it would not be a case to recover the amount of the salary already paid to the persons concerned. The consequential effect may arise in future. 15.In view of the above, subject to the aforesaid observations, all petitions fail. Hence, dismissed. Rule discharged. I.R. vacated. No order as to cost. (JAYANT PATEL, J.) *bjoy