SCA/11895/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11895 of 2006 With SPECIAL CIVIL APPLICATION No. 11897 of 2006 With SPECIAL CIVIL APPLICATION No. 12111 of 2006 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 ? ========================================================= BHAGWANBHAI BABABHAI SMARAK EDUCATION TRUST & 1 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR PS CHAMPANERI for Petitioner(s) : 1 - 2. MR SHIVANG SHUKLA, AGP FOR RESPONDENT NO.1 IN SCA 11895 AND 12111 OF 2006 AND MR. HUKUM SINGH, AGP FOR RESPONDENT NO.1 IN SCA NO.11897 OF 2006 for Respondent(s) : 1, RULE NOT RECD BACK for Respondent(s) : 2 - 4. MR AD OZA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/01/2008 SCA/11895/2006 2/7 JUDGMENT ORAL JUDGMENT 1. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today, when the application for fixation of date for hearing has come up for hearing today. 2. The petitioners in these petitions have challenged the decision of Respondent No.3 i.e. District Education Officer, whereby the NOC granted earlier for filling up of the posts of teacher has been suspended on account of the letter written by the MLA, Shri Dinubhai Solanki. 3. It is also prayed by the petitioner to issue appropriate directions to respondent No.3 to fix the date, time and place of interview for the process of recruitment pursuant to the NOC granted earlier within some reasonable time. 4. Heard Mr.Champaneri, learned Counsel for the petitioners and Mr.Shukla, learned AGP for the respondent State. 5. Upon hearing the learned Counsel appearing for both the sides, it appears that initially the SCA/11895/2006 3/7 JUDGMENT NOC was granted by the authority, however, thereafter as there was some inter se dispute amongst the Trustees of the Trust and it was brought to the notice of the authorities by the MLA, the authorities have suspended the order granting NOC for filling up of the post of teachers and it is under these circumstances, the petitioners have preferred the petitions. 6. In my view, so far as the inter se dispute of the Trustees in the management of the Trust is concerned, the authorities would be required to be guided by the record of the Trust or the order of the competent authority under the Bombay Public Trust Act for allowing the Trustees to function or otherwise. Merely because a dispute is raised by any of the Trustees, itself shall not be a sufficient ground to take a different view unless the persons who have moved the proposal for NOC are prohibited to function as the Trustees by the competent authority under the Bombay Public Trust Act. If the Trust has any dispute against any other Trustees or remaining Trustees of the SCA/11895/2006 4/7 JUDGMENT Trust, it would be required for such Trust to resort to appropriate proceedings for getting appropriate prohibitory orders from the authorities under the Bombay Public Trust Act or forum known to law, but due to such disputes the administration of the Trust, including that of the process of filling up of the posts, may be by adjustment of the surplus staff or recruitment of new staff cannot be put to grinding halt. 7. In the matter of filling up of posts of teachers, may be by posting of surplus teachers or by recruiting new teachers, is concerned, it is essentially to be decided by the Education Officer of every District. It is an admitted position that the Schools, which is under the control of the petitioner Trusts are 100% grant- in-aid schools. The requirement of the teachers in a particular school is to be considered every year, keeping in view the actual requirement based on the strength of the students and also by accommodating the surplus teachers, if any, of the other grant-in-aid school(s). If there SCA/11895/2006 5/7 JUDGMENT is no surplus teachers, the permission may be considered for filling up of the posts by regular recruitment. 8. Therefore, the position as was prevailing at the time when the NOC was granted may not be the same, more particularly if the question is considered, keeping in view the number of surplus teachers in other school, if any which are fully aided by the State Government. Hence, such aspects may be required to be examined afresh at the end of the academic year, or at least within some reasonable time prior to the expiry of the academic year. 9. It appears that the NOC was issued earlier based on the requirement of the teachers in the school under the control of the petitioner. As per the position prevailing then when the NOC was issued, the same was during the period of the academic year 2004-2005, based on the proposal of the year 2002-2003. The same situation may not be prevailing as prevailed then, when the matter is now considered for NOC. 10.Hence, it will be required for the petitioner to move afresh proposal even if there is SCA/11895/2006 6/7 JUDGMENT requirement of the teacher on the same subject in the same manner. If such proposal is moved, it will be required for the DEO to under afresh exercise, keeping in view the available number of teachers surplus if any in the other school for which grant is provided and if not, afresh appointment by regular recruitment. 11.At this stage Mr. Champaneri learned Counsel appearing for the petitioner states that the petitioner is ready to submit afresh proposal, but within time bound programme the DEO may be directed to decide the same. Mr. Shukla learned AGP for the State Authority agrees to abide by the direction if issued by this Court. 12.In view of the above, I find that the following direction shall be met with the ends of justice:- 1. The petitioner shall be at liberty to move afresh proposal for the requirement of the teacher within two weeks from today. 2. If the proposal is submitted by the petitioner, the DEO shall decide the same, keeping in view the observation made by this SCA/11895/2006 7/7 JUDGMENT Court in the present judgement, and shall take appropriate decision within a period of two months from the receipt of such proposal. 13.The petition is allowed in terms of the Government Representation. Rule is made absolute accordingly. No order as to costs. Direct service is permitted for No. 3. 25.1.2008 (Jayant Patel, J.) vinod/suresh