Solanki Gitaben Valjibhai vs State of Gujarat and Another

V.M. Sahai, J.—We have heard Mr. N.V. Gandhi, learned Counsel for the Appellant and Mr. N.J. Shah, learned Asst. Government Pleader for Respondent Nos. 1 and 2.

Appeal is admitted. Leaned counsel for the Appellant is permitted to add Respondent No. 4 as party to this Appeal, as by mistake, though Respondent No. 4 was party in Special Civil Application, his name has not been incorporated in the appeal. The learned Counsel may carry out the amendment in the memo of appeal, during the course of the day.

It is urged that Respondent Nos. 3 and 4 are supporting the case of the Appellant. Therefore, this appeal can be disposed of at the admission stage itself, with the consent of the learned Counsel for the parties.

In pursuance of the advertisement dated 22.8.2009, the Appellant-Petitioner applied for the post of Assistant Teacher/Shikshan Sahayak. The Appellant was called for interview on 8.10.2009 by duly constituted Selection Committee as per Section 35 of Gujarat Secondary Education Act, 1972 (''the Act'' for short) and as per the Government Resolution dated 6.10.1998, the DEO was required to grant approval for the appointment. The School Management did not issue appointment letter to the Appellant as the matter for approval was pending before the DEO. It appears that the DEO made a query from the Gujarat Secondary Education Board (''the Board'' for short) as to whether the Appellant-Petitioner can be appointed or not as per her qualification. The Board informed the DEO that it has to take a decision himself. Therefore, the Appellant filed a writ petition being Special Civil Application No. 7760 of 2010 which has been dismissed by the learned Single Judge on 7.10.2010 on the ground that the Appellant does not possess the requisite qualifications and, therefore, she was not selected.

Having heard learned Counsel for the parties, we are of the considered opinion that the Appellant-Petitioner was selected by the Selection Committee and the matter for appointment was pending. The Appellant possesses the qualifications of B.A., B. Ed. History and Social Sciences and B. Ed. Gujarati. The facts reveal, as per the educational qualifications prescribed for the post of Assistant Teacher, B.A. History and B.A., B. Ed., Social Studies are the required qualifications. The learned Single Judge was required to consider the question as to whether the Appellant-Petitioner possesses the requisite qualifications or not and further whether the Appellant who has passed B. Ed. Social Studies and Gujarati was a valid degree for appointment as an Assistant Teacher as the Appellant is possessing B. Ed. in two subjects. Further after the selection was over, Section 35 of the Act has been deleted and that established fact is required to be considered by the learned Single Judge, but this arguments raised by the learned Counsel for the Appellant-Petitioner have not been considered by the learned Single Judge. Therefore, the order of learned Single Judge dated 7.10.2010 cannot be maintained. Interest of justice would be served, if the matter is remanded to the learned Single Judge to take fresh decision in the matter after affording opportunity of hearing to the learned Counsel for the parties.

In the result, this Letters Patent Appeal succeeds and is allowed. The judgment and order passed by the learned Single Judge dated 7.10.2010 is set aside and the matter is remanded back to the learned Single Judge with a request to take fresh decision in the matter without being influenced by any of the observations recorded by this Court in this judgment. It is expected that the learned Single Judge will decide the matter afresh preferably within a period of two months from today, subject to His Lordship''s convenience.

In view of the order passed in the main matter, no orders are required to be passed on the Civil Application for stay and it stands disposed of.