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Judgment
Jayant Patel, J.—Heard Mr. Shelat with Mrs. V.D. Nanavati learned Counsel for the applicant, Ms. Trusha Patel learned AGP for the State Authority and Ms. Mamta Vyas learned Counsel for the opponent No. 1/org. petitioner.
This Court on 15.02.2008 had recorded the reasons for grant of interim order from paragraph 2 to 6 as under:
Prima facie it appears that once the State government having exercised the appellate power under the Gujarat Secondary Education Act 1972, read with Gujarat Secondary Education Regulation 1974, no power under Grant-In-Aid Code vide Clause No. 126 can be exercised by the State Government.
As such the exercise of power under the so-called provision 126, in a matter where additionally classes are to be open, would be beyond the scope of the applicability of Grant- In-Aid Code, but would be subject covered by the Secondary Educational Act, and the Secondary Educational Regulation. The aforesaid is apparent because in the order of the Commissioner dated 17.10.2005, he has referred to the appellate forum before the State Government as per regulation 1974.
Therefore, it can be said that the impugned order is without any authority, and competence on the part of the State Government.
Apart from the above, once the State Government having exercised the appellate jurisdiction under the regulation, power of the State Government is exhausted, and the State Government may be through its Minister concerned or Secretary, has no power to exercise the revisional jurisdiction, against the very order of the State Government. As per the mechanism provided and the basic structure for adjudication of the dispute would be to conclude issue, once the power is exercised by the concerned competent authority. It appears that in the present case the State Government in exercise of the appellate power under the regulation of 1974, passed the order dated 31st August 2006, whereby the appeal was dismissed and having done so, no power could be exercised either under Clause 126 of the Grant-In-Aid Code, or so-called revisional power under Clause 126 of the Grant-In-Aid Code, which result into upsetting the order passed by the State Government in appellate jurisdiction. If such powers are read, it would frustrate basic mechanism, and structure of adjudication of the dispute through judicial or quasi judicial authority which is State Government, in the present case who had the quasi judicial authority while exercising appellate power.
Hence, impugned order prima facie can be said as wholly without jurisdiction.
The attempt on the part of the learned Counsel appearing for the applicant that in view of Section 48 of the Gujarat Secondary and Higher Secondary Act (hereinafter referred as to the "Act"), is that the State Government has power to review the order, which is passed by it earlier in its appellate jurisdiction, and in support of his contention, Mr. Shelat learned Counsel for the applicant has relied upon the decision of this Court in case of Sarvoday Kelavani Mandal Vs. Gujarat Secondary Education Board and Others, , more particularly the observations made at para 3 of the said decision.
The relevant aspect is that this Court in the aforesaid decision did not consider the question, as to whether the power of the State Government is exhausted, once the power is exercised or not, but the Court read the power u/s 48 of the Act, on the premise that the decision in appellate jurisdiction shall not operate as res judicata. The aforesaid aspect apparent from the observations, relevant of which reads as under:
...The power of the State Government u/s 48 is an overriding power to issue directions and, therefore, if the State Government has decided an appeal, that decision will not operate as res judicata so as to preclude the State Government from reconsidering its decision....
The applicability of principles of res judicata as such cannot be equated with the situation of no power whatsoever with the State Government, once the power is exhausted in its appellate jurisdiction. Therefore, the said decision is prima facie distinguishable.
Further, the power u/s 48 of the Act, if read in absolute over quasi judicial power already exercised by State Government in appellate jurisdiction, it may come in conflict with, not only with the appellant power, but it would frustrate the basic mechanism and structure of adjudication of the dispute through juridical or quasi judicial authority, which is State Government in the present case, who acted as the quasi judicial authority while exercising the power. If the powers u/s 48 of the Act, are read as administrative powers, then also no such administrative power would operate over the quasi judicial power. On the contrary as per the mechanism of deciding the dispute through structure of adjudication of dispute by judicial or quasi judicial authority, the decision by judicial or quasi judicial authority shall operate over any administrative decision. The judicial or quasi judicial authority power if exercised, can be nullified only by legislative action, and not by any administrative power. The law including Section 48 of the Act, if not read in such a manner, it would frustrate the very basic mechanism and structure of the adjudication of the dispute through judicial or quasi judicial authority, which is State Government in the present case, who exercised appellate power as the quasi judicial authority.
The aforesaid are prima facie view and ultimately the question shall be concluded at the time of final hearing.
Mr. Shelat learned Counsel for the applicant lastly submitted that the applicant may be at the liberty to apply for afresh permission to open additional class.
As such the same was not the subject matter but suffice to state that if such application, as per the position prevailing is now permissible, the State Government will be required to consider the matter independently on the basis of the position as prevailing now in accordance with law.
In view of the above, no case is made out for vacating interim relief. Hence, both the applications are dismissed.