S.A.SHAH,J. - (1.)The petitioner herein is a secondary school registered under the provisions of the Gujarat Secondary Education Act, 1972. It is also registered under the Bombay Public Trust Act, 1950. The petitioner challenges two orders, namely, (1) dated 4-11-1977 signed by the Section Officer, Education Department, Sachivalaya, Gandhinagar, at Annexure-G which is addressed to the Secretary, Gujarat Secondary Education Board conveying that the appointment of respondent No. 3, D. T. Chaddarwala, to the post of Headmaster in the petitioner-school be sanctioned as a special case; and (2) order dated 14-11-1977 passed by the District Education Officer, Bharuch, directing the petitioner-school to continue respondent No. 3 as Headmaster and treat his appointment as valid from June 1976 and to pay him emoluments attached to the said post. The said order is produced at Annexure-F.
(2.)The relevant facts which require consideration are as under : Respondent No. 3 who was appointed as an Assistant Teacher in the petitioner-school with effect from 26-6-1972 was holding degree of B.Sc. After his appointment respondent No. 3 acquired B.Ed., the requisite educational qualification, and became a trained teacher on 2-5-1973 and was granted regular pay-scale from June, 1973. It is an admitted position that respondent No. 3 was junior to one Assistant Teacher, Miss Madhuben Mehta. It appears that Mr. S. B. Shah who was working as Headmaster in the petitioner-school was suspended from service on or about November 1, 1974 pending departmental enquiry and he ultimately resigned from the post of Headmaster with effect from 23-6-1975. Even though Miss Madhuben Mehta was senior to respondent No. 3, respondent No. 3 was given charge of the post of Headmaster from 1-11-1974 to which Miss Madhuben Mehta objected. It is also on record that the District Education Officer, who is in charge of the schools, also objected to such illegal course and wrote a letter to the petitioner-trust on 25-11-74 directing the school to follow the prescribed procedure. The said letter is produced at Annexure-A. In spite of this letter the school management did not take any action till respondent No. 3 was detained under Maintenance of Internal Security Act (MISA) on 13-3-1976. It is on record that Miss Madhuben Mehta was appointed In-charge Headmaster with effect from March 13, 1976.
(3.)Respondent No. 3 was released from detention in January, 1977. He has contended in his affidavit dated 23-1-1978 that an advertisement was issued in the daily newspaper 'Pratap', by the school, inviting applications for the post of Headmaster. All the teachers working in the petitioner-school were informed about the fact that appointment of Headmaster was to be made and that all the eligible teachers of the school should also apply. He has further stated in the affidavit that after holding interview for the said post on 17th April 1977 the management has made his appointment as Headmaster and the order of appointment was also communicated to him on 18th April, 1977. However, this material document has not been produced by respondent No. 3 in his affidavit, but he wants to rely about these facts by producing another communication dated 15-10-77 at Annexure-Q to show that his appointment of 18-4-77 has been cancelled on account of the objection taken by the authorities and he has been continued as Assistant Teacher in the petitioner-school and appointment of Miss Mehta was made by the management, and he was requested to hand over the charge to Miss Mehta.