( 1 ) BY this petition under Article 227 of the Constitution the petitioner who is the senior most teacher in the school down as Mahadev Shastri Vidyalaya run and managed by the respondent to. 1 trust challenges the order of Gujarat Secondary Education Tribunal dismissing his application in line as in the opinion of the Tribunal it did not disclose any cause of action inasmuch as there was no averment as to the breach of conditions of service which would invest the Tribunal with jurisdiction. the petitioner was required to move the Tribunal since he was not selected for the post of first Head Master of the said school inspite of the fact that he was the senior most teacher amongst eligible and suitable candidates for the said post. The Tribunal could not pursuade itself to entertain the petition since in its opinion the appointment was to be made purely on merits and the opinion of the Selection Committee about the suitability of the petitioners claim was not justiciable. It is this order of the Tribunal which is the subject-matter of this petition.

( 2 ) AT the time of hearing of this petition Mr. Ajmera the learned advocate for the petitioner raised the following two contentions:1 The Tribunal has failed to exercise jurisdiction on inisconstruction of proviso to sec. 35 (5) of the Gujarat Secondary Education Act 1972 hereinafter referred to as the Act inasmuch as it held that the appointment to the post of the Headmaster was to be made purely on merits; and2 In any case the Tribunal could not have rejected the application of the petitioner in limine without notice to the respondent trust on the ground that the question of suitability is not justiciable without any material in that behalf. These contentions were sought to be repelled by Mr. Sanjanwala learned advocate for respondent no. 1 Trust by during that the question involved in this petition is concluded by the judgment of this court (Per N. H. Bhatt J.) in Special Civil Application No. 843/79 (Smt. Shantadevi K Sharma v. Manager Navjeevan Girls High School XXII G. L. R. 1116) pronounced on 4/02/1981 where on the facts which were on all fours with the facts of the present case the learned single Judge has rejected the petition of unsuccessful teacher challenging the order of the Tribunal where the Tribunal has rejected his application in limine on the same ground that the application did not disclose any cause of action in as much as the grievance made in the said application about the suitability was not justicable. 3 I am of the opinion that this petition should be allowed obviously for the following reasons: The Tribunal in its impugned order has recorded its findings in the following terms:"the condition for entertaining the application by this Tribunal is that there should be a dispute relations to the conditions of service between the employee and the employer school management. The jurisdiction vested in this Tribunal under sec. 38 of the Act is a very limited jurisdiction. This Tribunal cannot enlarge the jurisdiction because it would amount to encroachment on the jurisdiction of the ordinary civil court which practice is discouraged by the Honble the Supreme Court. Therefore the applicant should first satisfy this Tribunal that his grievance is based on the breach of any of the condition of his service The applicant say is that his Seniority has not been given due consideration by the Selection committee and therefore it amounts of breach of condition. It is not in dispute that the Selection for the post of Principal is to be made purely on merits. The proviso to sec. 35 (5) of the Act Provides:provided that for the purpose of such selection preference shall be given to a senior teacher serving in the school if he is otherwise eligible and suitable2. ACCORDING to the applicant he is the senior most teacher of the school and he is suitable as well eligible. However it is nowhere provided in the section that the senior most teacher if he is eligibl