- (1.) This appeal has been preferred against the impugned judgment and order dated 26.7.2012 passed by the High Court of Gujarat, Ahmedabad in Letters Patent Appeal No.1367 of 2008 in Special Civil Application No.6346 of 2006.
(2.) Facts and circumstances giving rise to this appeal are that: A. The appellant Trust runs a Primary School wherein a large number of students are getting education and a large number of teachers are imparting education. Respondent No.1 was appointed as an Assistant Teacher on 1.7.1993 alongwith a large number of persons in pursuance of the advertisement inviting application for the posts. B. The appellant Trust issued a show cause notice dated 26.3.1998 to the respondent No.1 as why his services should not be terminated and alongwith the said notice he was also given the cheque towards salary for the month of March 1998. He was asked to submit reply to the said notice within 15 days. The notice was issued on the ground that he did not possess the eligibility for the said post and proper procedure had not been followed for making the appointment. C. The respondent No.1 did not submit any reply to the aforesaid notice. Thus, the appellant Trust passed the order dated 30.4.1998 terminating his services on the ground that his appointment was in contravention of the statutory provisions of Bombay Primary Education (Gujarat Amendment) Act, 1986 (hereinafter referred to as the 'Act') and particularly, in violation of the Schedule attached thereto. Alongwith the order of termination, he was also served a cheque for a sum of Rs.1710/- towards the salary for the month of April 1998 and was directed to hand over the charge to the Principal. D. Aggrieved, the respondent No.1 challenged the aforesaid order by filing Application No.69/98 before the Gujarat Primary Education Tribunal on 11.5.1998 and asked for quashing of the said order and for reinstatement with all back wages. The appellant contested the said application and submitted the written statement etc. Parties were given the liberty by the Tribunal to examine and cross-examine the witnesses examined by the parties. The Tribunal vide judgment and order dated 21.1.2006 allowed the application of the respondent No.1 directing the appellant to reinstate him and also to pay him the back wages. E. Aggrieved, the appellant filed Special Civil Application No.6346 of 2006 before the High Court of Gujarat challenging the said order of the Tribunal dated 21.1.2006. F. The learned Single Judge vide order dated 13.11.2008 dismissed the said application filed by the appellant Trust on various grounds, inter-alia, that the termination was in utter disregard of the statutory provisions of Section 40B of the Act which requires to serve a show cause notice to the employee and seeking approval of the statutory authorities before giving effect to the order of termination. G. Aggrieved, the appellant challenged the said judgment and order by filing Letters Patent Appeal No.1367 of 2008 which has been dismissed by order dated 1.12.2008. Hence, this appeal.
(3.) Shri Percy Kavina, learned Senior Advocate appearing on behalf of the appellant, has submitted that the respondent No.1 possesses the qualification of B.Sc.; B.Ed., but the required qualification for a Primary School Teacher is Primary Teachers Certificate (PTC) as provided in Clause (6) of Schedule F to the Act as applicable to all Primary Schools in the State of Gujarat. Thus, the respondent did not possess the qualification making him eligible for the post. Once the order is bad in its inception, it cannot be sanctified by lapse of time. The order of termination ought not to have been interfered with as the order setting aside the same had revived the wrong order of appointment, which is not permissible in law. The courts below must have ensured strict compliance of the statutory provisions of the Act and have swayed with unwarranted sympathy with the respondent No.1. Thus, the appeal deserves to be allowed.;