SCA/5671/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5671 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ===================================================== 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 ? ===================================================== THE STATE OF GUJARAT & 1 - Petitioner(s) Versus NUTAN KELVANI MANDAL & 1 - Respondent(s) ===================================================== Appearance : MR. VIPUL MISTRY ASSIT. GOVERNMENT PLEADER for Petitioner(s) : 1 - 2. MS. MAMTA VYAS for Respondent(s) : 2. ===================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/08/2008 ORAL JUDGMENT 1. Rule. Ms. Mamta Vyas, learned advocate waives SCA/5671/2008 2/11 JUDGMENT service of notice of admission on behalf of the respondent No.2. With the consent of the learned advocate appearing on behalf of the respective parties, the matter is taken up final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners- State of Gujarat through its Chief Secretary, Education Department and District Education Officer, Bhavnagar have prayed for an appropriate writ, direction and / or order quashing and setting aside the order passed by the learned Civil Judge (S.D.), Bhavnagar passed below Exh. 5 in Regular Civil Suit No. 321 of 1999 as well as the judgment and order passed by the learned Principal District Judge, Bhavnagar dated 4.8.2007 passed in Miscellaneous Civil Appeal No. 29 of 2000, by which the learned Appellate Court has dismissed said appeal confirming the order passed by the learned trial Court passed below Exh. 5. 3. That the respondent No.2 herein was serving as a Science Teacher from 1.10.1983 to 14.6.1990 in Nutan Vidhalaya, Bhavnagar. He was declared surplus from SCA/5671/2008 3/11 JUDGMENT the said school w.e.f.15.6.1990 and as per the policy of the State Government, he was absorbed in another school i.e. Shri Mastramji High School. That post of Science Teacher had fallen vacant in the respondent No.1 School i.e. Nutun Vidhalaya, as one teacher Shyamlal D. Makwana superannuated on 31.5.1997 and the said school started the procedure to fill up the said post, after obtaining necessary permission from the concerned District Education Officer. That the respondent No.2 submitted an application to recall himself in the parent school and an order came to be passed by the District Education Officer, Bhavnagar dated 27.10.1998 recalling the respondent No. 2 to his parent school, the respondent No.1 instituted Regular Civil Suit No.321 of 1999 before the learned Civil Judge (S.D.) Bhavnagar and in the said suit the respondent No.1 plaintiff submitted an application Exh. 5 for interim injunction of staying the implementation, operation of the order dated 27.10.1998 of District Education Officer, Bhavnagar. The learned Civil Judge (S.D.), Bhavnagar allowed the said application below Exh. 5 vide his order dated 31.12.1999. Being aggrieved and dissatisfied with the SCA/5671/2008 4/11 JUDGMENT order passed by the learned trial Court passed below Exh. 5 dated 31.12.1999,the respondent No.1 preferred Miscellaneous Civil Appeal No. 29 of 2000 before the learned Principal District Judge, Bhavnagar who by his judgment and order dated 4.8.2007 dismissed the said appeal. Being aggrieved and dissatisfied with the orders passed by both the Courts below, the petitioners- State of Gujarat and another have preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Shri Vipul Mistry, learned AGP appearing on behalf of the petitioners has submitted that orders passed by both the Courts below are without jurisdiction, as for the dispute in the suit, the remedy lies with the Gujarat Secondary Education Tribunal which is specially constituted under the provisions of Gujarat Secondary Education Act, 1972. It is submitted that under Section 40 of the Act, the jurisdiction of the Civil Court is barred and only the Gujarat Secondary Education Tribunal have jurisdiction to entertain and resolve the dispute which is raised in the suit. It is also further SCA/5671/2008 5/11 JUDGMENT submitted that even on merits also both the Courts below have materially erred in granting injunction as prayed for. It is submitted that both the Courts below ought to have appreciated that the respondent No. 2 was initially serving in the plaintiff school, however considering the strength of the students, he was declared surplus and was absorbed in another school. However, subsequently due to superannuation of one Science Teacher, there was a vacancy of Science Teacher in the plaintiff school and, therefore, the respondent No.2 requested to send him to his parent school and the said order came to be passed by the District Education Officer, Bhavnagar and therefore, it cannot be said that the order passed by the District Education Officer, Bhavnagar was in any way illegal and / or arbitrary or de-hores the policy of the Government. It is submitted that the said order was in consonance with the Government Resolution dated 26.5.1986, therefore, it is requested to allow the present Special Civil Application. 5. Petition is opposed by Ms. Mamta Vyas, learned SCA/5671/2008 6/11 JUDGMENT advocate appearing for the respondent No.1 School- original plaintiff. It is submitted that this petition under Article 227 of the Constitution of India and there are concurrent findings given by both the Courts below staying the further implementation, operation and the order passed by the District Education Officer, Bhavnagar recalling the earlier order and sending the respondent No. 2 to his parent school. It is submitted that every school has right to select and appoint their own staff and once the respondent No. 2 was already transferred to another school and subsequently when the post of Science Teacher had fallen vacant and when the procedure was initiated by the plaintiff to fill up the said post of Science Teacher, the District Education Officer, Bhavnagar ought not to have sent the respondent No.2 to the plaintiff school and ought to have permitted the plaintiff school to fill up the post of Science Teacher as per their own choice and requirement. Therefore, considering the above when both the Courts below have injuncted the defendants from implementing the order passed by the District Education Officer, Bhavnagar, the same do not require any interference SCA/5671/2008 7/11 JUDGMENT of this Court in exercise the powers under Article 227 of the Constitution of India. Hence, it is requested to dismiss the present Special Civil Application. 6. Heard the learned advocates appearing for the respective parties. At the outset, it is required to be noted that parties are governed by the provisions of Gujarat Secondary Education Act. Any dispute between the school management and teacher and the Government with respect to teacher is to be resolved by the Gujarat Secondary Education Tribunal, which is constituted under the provisions of the aforesaid Act. As per Section 40 of the Act, the jurisdiction for the determination of the dispute which is to be resolved by the Civil Court is barred. Section 40 of the Act, which read as under: Section 40. "(1). No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tribunal. (2). All suits and proceedings between the manager of the registered private secondary school and any person om SCA/5671/2008 8/11 JUDGMENT service of such school as a head master, a teacher or a member of non-teaching staff relating to disputes connected with the conditions of service of such person, which are pending in any civil court on the appointed day shall be transferred to and continued before the Tribunal: Provided that nothing in this sub-section shall apply to execution proceedings and appeals arising out of decrees or orders passed by any such court before the appointed day and such execution proceeding and appeal shall be decided and disposed of as if this Act and had not been passed." In the present case, the respondent No.2 was as such serving as Science Teacher in the plaintiff school, however considering the strength of the students, the respondent No.2 was declared as a surplus teacher, as per the policy of the State Government and was directed to be absorbed in another school. Thereafter, the post of Science Teacher had fallen vacant in the plaintiff school due to superannuation of one another teacher and, therefore, plaintiff school initiated the procedure to fill up said post. Respondent No.2 came to know about the SCA/5671/2008 9/11 JUDGMENT same and submitted an application to the District Education Officer, Bhavnagar to recall the earlier order and sent him to his parent school. The same was permissible as per the resolution dated 26.5.1986. Therefore, District Education Officer, Bhavnagar considering the said application passed an order recalling the earlier order and sending the respondent No.2 to his parent school i.e. plaintiff school. Considering the above and when the said decision was taken as per the policy of the State Government and the Government Resolution dated 26.5.1986, it cannot be said that the said decision was arbitrary and / or without jurisdiction and/or contrary to the policy and scheme of the Government. Under the circumstances, on merits both the Courts below have committed a grave error in granting the injunction staying order passed by the District Education Officer, Bhavnagar. Both the Courts below ought to have appreciated that the original plaintiff had no right to insist that they may be permitted to fill up the post as per their own choice, more particularly, the respondent No.2 was as such working with the plaintiff school as a Science Teacher and SCA/5671/2008 10/11 JUDGMENT was declared surplus. Under the circumstances, on merits orders passed by both the Courts below deserves to be quashed and set aside. 7. Even otherwise, the dispute is between the School Management, Teacher and District Education Officer. Therefore, considering the Section 40 of the Gujarat Secondary Education Act, 1972, the suit instituted before the learned trial Court itself is barred. The said aspect has not been considered and dealt with by both the Courts below properly. Considering the provisions of the Gujarat Secondary Education Act and dispute raised in the suit, as per the opinion of this Court, the suit itself is barred. Under the circumstances, when suit itself is barred, any interim order passed in the said suit cannot be sustained. 8. For the reasons stated above, petition succeeds. The impugned orders passed by the learned Civil Judge (S.D.), Bhavnagar passed below Exh. 5 in Regular Civil Suit No. 321 of 1999 as well as the judgment and order passed by the learned Principal District Judge, Bhavnagar dated 4.8.2007 passed in SCA/5671/2008 11/11 JUDGMENT Miscellaneous Civil Appeal No. 29 of 2000 is hereby quashed and set aside. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to costs. (M.R. SHAH, J.) kaushik