SCA/1120220/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11202 of 2008 With SPECIAL CIVIL APPLICATION No. 11203 of 2008 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 ? ===================================================== SANAND BAL KELAVANI MANDAL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ==================================================== Appearance : MR HJ NANAVATI for Petitioner(s) : 1, MR KL PANDYA AGP for Respondents : (SCA 11202 OF 2008) MR UMANG OZA AGP for Respondents : (SCA 11203 OF 2008) ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 17/11/2008 SCA/1120220/2008 2/5 JUDGMENT COMMON ORAL JUDGMENT 1. Rule. Mr. K.L. Pandya, learned Assistant Government Pleader and Mr. Umang Ozq, learned Assistant Government Pleader waive service of the Rule on behalf of the respondent in their respective petitions. 2. In both the petitions, the prayer of the petitioner is to direct the respondent Authority to issue no objection certificate for the vacancies of teachers in the subjects of Sanskrit, Social Studies as well as in the subjects of Maths and Science in the respective schools run by the concerned petitioner. 3. Heard Mr. Nanavati, learned counsel for the petitioner and Mr. K.L Pandya, learned Assistant Government Pleader for the respondent Authority in Special Civil Application No.11202 of 2008 and Mr. Umang Oza, learned Assistant Government Pleader in Special Civil Application No.11203 of 2008. SCA/1120220/2008 3/5 JUDGMENT 4. Upon hearing both the sides, it appears that as per the petitioner, since the school of the petitioner is located in the rural area, the requisite strength of attendance in each class is maintained and therefore, the proposal for no objection certificate ought not to have declined by the respondent Authority on the ground that the requisite strength of students is not available. Whereas on behalf of the State Authority, the contention of the learned Assistant Government Pleaders is that as the requisite numbers of students were not available, the proposal has been declined. 5. Pertaining to the aforesaid aspect, it appears that neither in the affidavit-in-reply nor in the present proceedings, any instruction of the Commissioner of Higher Education requiring the requisite number of students in a particular school for issuance of no objection certificate, are produced. The learned Assistant Government Pleaders submitted that there are oral instructions of the Commissioner of Higher Education. If such instructions are oral, it can hardly be identified as SCA/1120220/2008 4/5 JUDGMENT valid. It would be required for the concerned Authority to be guided by written instructions of the Commissioner of Higher Education or in the alternative the written opinion of the Commissioner of Higher Education may be called for. Further, since the instructions are not on record, it is not possible for this Court to examine and conclude as to whether such is related to the schools located in urban area or to the schools located in rural areas. The decision appears to be without proper application of mind. Hence, it would be just and proper to direct the respondents Authorities to decide the matter afresh. 6. Under these circumstances, following directions are issued : 1. The impugned decision of declining for proposal for no objection certificate is quashed and set aside, with a direction to reconsider the matter afresh. 2. It is also observed that if there is vacancy, issuance of no objection SCA/1120220/2008 5/5 JUDGMENT certificate may not be required in every case. It would be open to post/allocate any surplus teacher for absorption by the petitioner school. If no surplus teacher is available then only no objection certificate may be required to be issued. 3. An appropriate decision shall be taken preferably within a period of eight (8) weeks from the receipt of the order of this Court. 7. Rule is made absolute. No order as to costs. (JAYANT PATEL, J.) ynvyas