VINODKUMAR HEMATRAM DAVE Vs. SECONDARY EDUCATION TRIBUNAL
LAWS(GJH)-1979-12-11
HIGH COURT OF GUJARAT
Decided on December 17,1979

VINODKUMAR HEMATRAM DAVE Appellant
VERSUS
SECONDARY EDUCATION TRIBUNAL Respondents

JUDGEMENT

M.P.THAKKAR - (1.) Offer and acceptance notwithstanding a letter of firm appointment notwithstanding a contract of service does rot come into existence if it is cancelled before the appointee takes charge such is the proposition canvassed by the Management of a Secondary School. The teacher contends that a contract of service having come into existence the Management cannot wriggle out from the purview of the Tribunal created for the avowed object of redressing such grievances by committing a breach of the contract before the stipulated date for performance. The Tribunal has agreed with the Management and shut its doors against the teacher at the threshold. The controversy has now been brought before this Court by the teacher concerned.
(2.) The Managing Trustee of a Trust running a High School respondent No. 2 herein appointed the petitioner as Headmaster of a school run by the institution by an order of appointment dated February 21 1979 as per Annexure A. It was mentioned in the order of appointment that the appointment would be effective from April 2 1979 It appears that the petitioner forwarded his letter of acceptance as required by Annexure A within the specified time. The contract of service thus came into existence though the appointment was to become operative after a lapse of about 1 1/2 months with effect from April 2 1979 Some 10 days before the date on which the appointment was to become effective respondent No. 2 addressed a communication as per Annexure C dated March 24 1979 informing the petitioner that his appointment had been cancelled for certain reasons. The petitioner invoked the jurisdiction of the Tribunal constituted under the Gujarat Secondary Education Act 1972 (Act) for the resolution of disputes or differences between the management of a registered private secondary school and any person in service of such school as headmaster teacher etc. The Tribunal came to the conclusion that it had no jurisdiction in the matter and it was not competent to entertain the dispute between the parties inasmuch as in the opinion of the Tribunal the petitioner could not be said to be a person in the service of the institution. The view taken was that since the appointment was cancelled before the petitioner took charge of his office it cannot be said that the petitioner had ever been in the service of the institution. In the opinion of the Tribunal it cannot be said that he had become an employee of the institution pursuant to the order of appointment the appointment having been cancelled before he could assume charge of his office. The Headmaster concerned has approached this Court by way of the present petition under Article 227 of the Constitution of India and has challenged the legality and validity of the impugned order at Annexure F dated July 23 1979 rejecting his application on the ground that it was not maintainable.
(3.) The controversy centres round the question whether the dispute falls within the ambit of sec. 38(1) of the Act which deserves to be quoted for a proper understanding of the point at issue : "38(1) Whether there is any dispute or difference between the manager of a registered private secondary school and any person in service of such school as headmaster a teacher or a member of nonteaching staff which is connected with the conditions of service of such person the manager or as the caKe may be the person may make as application to the Tribunal for the decision of the dispute." It may be realised that the dispute arises in the context of cancellation of the appointment of the petitioner to the post of Headmaster. The cancellation of the appointment according to the petitioners offends sec. 36 of the Act which provides that no person who is appointed as a headmaster a teacher or a member of nonteaching staff of a registered private secondary schools shall be dismissed or removed or reduced in rank or his service terminated otherwise by the manager until clauses (a) & (b) of sec. 36(1) are complied with. A person who has been appointed as a headmaster or a teacher within the meaning of sec. 36 alone can raise a dispute envisaged by sec. 38. It is an admitted position that respondent No. 2 had made an offer to appoint the petitioner as a Headmaster and the petitioner had accepted the said offer. A contract of service had therefore come into existence. That the petitioner was appointed as a Headmaster cannot therefore be disputed. It is however contended that whereas his appointment as a Headmaster was to become operative or come into effect at a future date viz. on April 2 1979 and whereas before the petitioner could assume charge of the office his appointment was cancelled as per Annexure C dated March 24 1979 the petitioner had never become an employee. The view taken by the Tribunal is that since the appointment was cancelled before the petitioner assumed charge of the office it cannot be said that the petitioner was a person who was in the service of the school. This view has been taken in the context of the provision contained in sec. 38(1) which provides that where there is a dispute or difference between the manager of a registered private secondary school and any person in service of the school as headmaster teacher or a member of nonteaching staff which is connected with the conditions of service of such person an application to the Tribunal for the decision of the dispute can be made. Stress leas been laid on the expression any person in service of such school. It is in he context of this expression that the Tribunal has taken the view that. the petitioner was not a person in the service of the school inasmuch as the relationship of master and servant had never come into existence his appointment having been cancelled before it became effective A very interesting question has thus arisen in the backdrop of the aforesaid facts in regard to the interpretation of sec. 38 and the maintainability of the application which has been made by the petitioner on the premise that there is in existence a dispute or difference between him on one hand and the Manager of the School on the other which requires to be resolved by the Tribunal having regard to the fact that he fulfils the description of any person in service of such school.;


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