(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The appellant has invoked clause 15 of the Letters Patent to call into question a decision dated 16.01.2012 of learned single judge of this Court in Special Civil Application No.111 of 2012, whereby the appellant's petition was dismissed and, thereby the order dated 26.09.2011 of Gujarat Secondary Education Tribunal in Application No.56 of 2006 was upheld. Since the petition was preferred from a judgment of the tribunal whose decision would otherwise be final, the jurisdiction of the High Court could have been invoked only under Article 227 of the Constitution and the appeal would not be maintainable. However, it was argued by learned counsel Mr. Shalin Mehta that all throughout the petitioner had invoked Articles 226 and 227 of the Constitution and the petitioner was justified in doing so. On merits, it was vehemently argued that while the appellant was selected and appointed as a Teacher by the respondent in the year 1993, his service was orally terminated after twelve years, clearly in violation of provisions of Section 36 of the Gujarat Secondary Education Act, 1972 (for short "the Act"). On that basis, he submitted that the termination was in violation of not only the provisions of Section 36 but Articles 14 and 16 of the Constitution. As for the express provisions of Section 35 of the Act, he submitted that even if it were presumed that the original appointment of the appellant was irregular and not approved, the appellant was required to be given an opportunity of being heard in that regard.
2. The reasoning adopted in the impugned judgment is based on the findings of fact that the appellant had failed to establish that the respondent had appointed him as per the procedure prescribed under Section 35 of the Act. Instead, the appellant appeared to have been appointed only on temporary basis without following the prescribed procedure, and, therefore, the appointment was found and held to be ineffective by virtue of provisions of sub-section (7) of Section 35 of the Act. In view of such conclusion based on perusal of the material on record and the conclusion arrived at by the tribunal the provisions of Section 36 of the Act could not operate to protect the appellant for the simple reason that the appointment has to be effective in order to attract the provisions of Section 36 of the Act.
3. In the above facts, even assuming that the appeal is maintainable, we do not find any case on merits, and, therefore, the appeal is summarily dismissed along with Civil Application.
[D.
H. WAGHELA, J.] [N.
V. ANJARIA, J.] Amit Top