Sheth Bhikhabhai High School and Another vs State of Gujarat and Others

R.M. Doshit, J.—This Appeal, preferred under Clause 15 of the Letters Patent, arises from the order dated 24th October, 2008 made by the learned Single Judge in above Special Civil Application No. 8614 of 2008. By impugned order, the learned Single Judge has relegated the appellant writ-petitioner to the Gujarat Higher Secondary School Services Tribunal in the proceeding taken out by the respondent No. 4 before the said Tribunal.

The appellant-Sheth Bhikhabhai High School is a non-Government, Grant-in-Aid secondary school. The respondent No. 4 was earlier employed as a Steno Instructor at Ranjan Higher Secondary School, Bapunagar, Ahmedabad. In the year 1999, the respondent No. 4 was rendered ''surplus'' in the said school at Bapunagar, Ahmedabad. Under the prevalent scheme of the State Government, the service of the respondent No. 4 was protected. He was accommodated in the appellant-School as a senior clerk. Since the year 1999, the respondent No. 4 continued to serve as senior clerk in the appellant-school. It appears that in the year 2008 or thereabout, a post of senior clerk in the respondent No. 5-Smt. R.G Patel Girls Secondary & Smt. S.B Patel Girls Higher Secondary School at Gandhinagar fell vacant. The said school at Gandhinagar was ready and willing to appoint respondent No. 4 as senior clerk. On 19th March, 2008, the said school at Gandhinagar gave consent in respect of employment of the respondent No. 4 as senior clerk. On the strength of the said consent on 25th March, 2008 the respondent No. 4 approached the District Education Officer, Gandhinagar to accommodate the respondent No. 4 in the respondent No. 5-school at Gandhinagar. The respondent No. 4 also gave intimation of his willingness to join the respondent No. 5-school to the appellant-school on 26th March, 2008. Pursuant to his application made on 25th March, 2008, by order made on 9th April, 2008, the District Education Officer allotted the respondent No. 4 to the respondent No. 5-school on conditions mentioned in the order. We are informed that pursuant to the said order, the respondent No. 4 has joined the service in respondent No. 5-school.

Feeling aggrieved, the appellant has approached this Court to challenge the above referred order dated 9th March, 2008. According to the appellant, without the consent of the appellant, the respondent No. 4 has been allotted to the respondent No. 5-school, leaving the appellant-school without a senior clerk. It is now more than a year that the appellant has to function without the senior clerk.

In answer to the notice issued by this Court, the District Education Officer has entered appearance. Learned AGP Mr. Sejpal has appeared for the District Education Officer. Reliance is placed on the Order dated 26th October, 2004. By order dated 26th October, 2004, the Joint Director of Education [10+2] issued general instructions to all District Education Officers to the effect that in the event any teacher in a grant-in-aid school is rendered surplus; he has to be allotted to some other school and he has to join the school to which he is allotted. Such teacher, if produces the consent of another school in the same district, he may be allotted to such another school. Mr. Sejpal has submitted that the said order dated 26th October, 2004 provides for consent of the school where the teacher seeks to be allotted. Once such consent is obtained, it is the discretion of the District Education Officer to allot such surplus teacher to the school of which the consent is obtained.

Learned advocate Mr. Upadhyay has appeared for the respondent No. 4. He has vehemently argued that the respondent No. 4 has a right to be accommodated in any school within the district. As the respondent No. 5 was willing to accept and employ the respondent No. 4, it had issued consent letter. The District Education Officer had made the impugned order dated 9th April, 2008 in exercise of the powers conferred upon him. He has submitted that the respondent No. 4 had also given intimation to the appellant-school as soon as he obtained consent from the respondent No. 5 school. The action of the District Education Officer and the conduct of the respondent No. 4 are bona fide and are in accordance with law.

We are afraid, we are unable to agree with Mr. Sejpal and Mr. Upadhyay. As recorded hereinabove, by order dated 26th October, 2004, all District Education Officers are empowered to make order of allotment after considering the merit. It is apparent that the said order confers discretion upon District Education Officers. It is well settled that any authority which is vested with the discretionary power has to exercise such discretionary power rationally and legally. We do not find any rationale in the action of the District Education Officer in as much as neither the District Education Officer gave opportunity of hearing to the appellant nor did he consider the consequences in case the respondent No. 4 were permitted to join the respondent No. 5 school without any notice to the appellant-school. Besides, the conditions mentioned in the impugned order dated 9th April, 2008 are not germane to the order of allotment of the respondent No. 4 and disclose non application of mind on the part of the District Education Officer.

As to the alternative remedy before the Tribunal, it may be noted that the proceeding pending before the Tribunal is taken out by the respondent No. 4. The appellant cannot seek relief in the proceeding taken out by the respondent No. 4. In our opinion, the learned Single Judge has erred in relegating the appellant to the Tribunal in the proceeding pending before it. Further, the appellant has sought relief essentially against the order made by the respondent No. 3-District Education Officer. The Tribunal would have no jurisdiction to entertain the dispute between the school management and the District Education Officer.

In above view of the matter, we allow this Appeal. The impugned order dated 24th October, 2008 made by the learned Single Judge in above Special Civil Application No. 8614 of 2008 is quashed and set-aside. The Special Civil Application No. 8614 of 2008 is allowed. The order dated 9th April, 2008 made by the District Education Officer [Annexure ''A'' to the petition] is quashed and set-aside. The respondent No. 4 will report for duty at the appellant-Sheth Bhikhabhai High School, Isanpur Mota, Gandhinagar on 27th April, 2009. If at all the respondent No. 4 wishes to join any other school in the same district, the District Education Officer, before he makes any order under the powers conferred upon him by order dated 26th October, 2004, will give opportunity of hearing to the appellant-school. Any order of re-allotment, if made, will not be effective till the appellant school makes alternate arrangement.

In view of the above order, Civil Application stands disposed of.

This Order will not preclude the respondent No. 4 from receiving salary for the period he has served in the respondent No. 5-School.