SCA/13972/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13972 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 ? ========================================================= AADARSH KELAVANI MANDAL - Petitioner(s) Versus STATE OF GUJARAT & 8 - Respondent(s) ========================================================= Appearance : MR KB PUJARA for Petitioner(s) : 1, MR VINAY PANDYA, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 4, 9, MR YF MEHTA for Respondent(s) : 3 - 4. UNSERVED-REFUSED (N) for Respondent(s) : 5 - 8. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 08/12/2008 ORAL JUDGMENT 1. Rule. The learned Counsel for the respective SCA/13972/2008 2/8 JUDGMENT respondents waive service of notice of Rule. 2. The petitioner, by this petition, has prayed for the relief, inter alia, to direct respondents No.1 and 2 to complete the process of selection and appointment for the post of Head Master in Aadarsh Madhyamik Shala and it is also prayed by the petitioner to quash and set aside the decision of respondent No.3, Charity Commissioner, whereby the instructions are issued prohibiting the further process of the recruitment. 3. Heard Mr.Pujara, learned Counsel for the petitioner, Mr.Vinay Pandya, learned AGP for the State Authorities, Mr.Mehta, learned Counsel for the Charity Commissioner and Assistant Charity Commissioner and Mr.Japee, learned Counsel for respondents No.5 to 8. Respondent No.9 is served as 'refused' and nobody has appeared. 4. Upon hearing the learned Counsel appearing for both the sides, it appears that there is inter se dispute amongst the Trustees of the Trust and the same has resulted the Charity Commissioner to pass the impugned order dated 4.10.2008 – SCA/13972/2008 3/8 JUDGMENT Annexure “H”. When this Court considered the matter for the first time, it was declared by the learned Counsel for the petitioner that the present petition was restricted to direction No.1, prohibiting the recruitment of any staff by the Charity Commissioner as per the impugned order and the petitioner has no objection for other directions as contained in the impugned order. Therefore, notice was issued on that aspects and the learned Counsel are further heard. 5. Considering the facts and circumstances, it appears that if there are inter se two groups of trustees, may be in minority or majority, it would be in the interest of the Trust to see that the recruitment of the staff is undertaken with a view to see that the education activities of the Trust may not suffer. 6. After some arguments, the learned Counsel appearing for the petitioner as well as for the private respondents are on agreement on the following aspects :- (i) The private Respondents No.5 to 8 shall SCA/13972/2008 4/8 JUDGMENT deposit the amount of Rs.10,000/- within one week towards probable cost of the advertisement in Sandesh daily newspaper having circulation in Sabarkantha District. (ii) The advertisement may be issued by the Incharge Principal on behalf of the School Authorities within a period of one week from the date of deposit of the amount and 15 days shall be given to the interested candidates to apply. (iii) The aforesaid advertisement shall be in addition to the advertisement already issued and the candidates, who have already applied shall also be considered simultaneously with the candidates, who may apply in response to the advertisement, which may be issued in the Sandesh daily newspaper. (iv) The applications of all the candidates already received and which may be received shall be processed by the Incharge Principal and the processing of such applications shall be under the supervision of the officer, who may be nominated by the District Education Officer for such purpose. SCA/13972/2008 5/8 JUDGMENT (v) The interview shall be conducted, in accordance with law, by the committee comprising of; (A) two representatives of the Trust namely; (1) Shri Maganbhai Ganeshbhai Patel and (2) Govindbhai Jethabhai Patel (Respondent No.5) being representative of respondents No.5 to 8, (B) one representative of the District Education Officer, and (C) further representative of concerned board in accordance with law, if any. (vi) The interview committee of the aforesaid persons shall be at liberty to finalize the selection process, subject to the approval of the District Education Officer in accordance with law. (vii) The aforesaid process shall be completed within a period of two months from the date of advertisement or, in any case, six weeks from the outer date of making applications pursuant to the aforesaid advertisement in Sandesh daily newspaper. 7. As such, if the aforesaid arrangement is made, it will be in the larger interest of the education of the students and the institution SCA/13972/2008 6/8 JUDGMENT itself. As the respective parties are on agreement, no further discussion may be required. Therefore, keeping in view the larger interest of the Trust as well as the education of the children, the order of the Charity Commissioner can be modified to that extent. 8. Hence, it is directed that the order of the Charity Commissioner dated 4.10.2008 qua direction No.1 shall stand modified to the effect as under:- (i) The private Respondents No.5 to 8 shall deposit the amount of Rs.10,000/- within one week towards probable cost of the advertisement in Sandesh daily newspaper having circulation in Sabarkantha District. (ii) The advertisement may be issued by the Incharge Principal on behalf of the School Authorities within a period of one week from the date of deposit of the amount and 15 days shall be given to the interested candidates to apply. (iii) The aforesaid advertisement shall be in addition to the advertisement already issued and the candidates, who have already applied shall SCA/13972/2008 7/8 JUDGMENT also be considered simultaneously with the candidates, who may apply in response to the advertisement, which may be issued in the Sandesh daily newspaper. (iv) The applications of all the candidates already received and which may be received shall be processed by the Incharge Principal and the processing of such applications shall be under the supervision of the officer, who may be nominated by the District Education Officer for such purpose. (v) The interview shall be conducted, in accordance with law, by the committee comprising of; (A) two representatives of the Trust namely; (1) Shri Maganbhai Ganeshbhai Patel and (2) Govindbhai Jethabhai Patel (Respondent No.5) being representative of respondents No.5 to 8, (B) one representative of the District Education Officer, and (C) further representative of concerned board in accordance with law, if any. (vi) The interview committee of the aforesaid persons shall be at liberty to finalize the selection process, subject to the SCA/13972/2008 8/8 JUDGMENT approval of the District Education Officer in accordance with law. (vii) The aforesaid process shall be completed within a period of two months from the date of advertisement or, in any case, six weeks from the outer date of making applications pursuant to the aforesaid advertisement in Sandesh daily newspaper. 9. The aforesaid shall be without prejudice to the rights of the inter se Trustees in the respective proceedings before the Assistant Charity Commissioner about the change report. However, any decision of the Assistant Charity Commissioner would not be considered to invalidate the appointment(s), if any, made of the person(s) pursuant to the above process. 10.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Direct service for respondents No.1 to 4. 10.12.2008 (Jayant Patel, J.) vinod