Point of Law - In view of the above provisions of the Act, 1972 it emerges that due to fault of the management of the School the petitioner cannot be penalized by not granting the protection under Section 36 of the Act, 1972.

JUDGMENT :

Heard learned advocate Ms.Venu Nanavaty for the petitioner and Mr.Baiju Joshi for the respondents through video conference.

1. Rule, returnable forthwith. Learned advocate Mr.Baiju Joshi waives service of notice of Rule on behalf of the respondents.

2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs :

“(A) To admit this petitions;

(B) To quash and set aside the impugned judgment and order annexure A so far as it relates to the challenge of the petitioner to his termination of service and to declare that the termination of petitioner's services in June, 1999 is illegal and that the petitioner is entitled to reinstatement with full backwages and continuity of service;

(C) To modify the impugned judgment and order annexure A by an appropriate writ, order of direction that the petitioner is entitled to full salaries for the period from 15.12.1986 till May, 1999;

(CC) Pending hearing and final disposal of this petition to direct the respondents to reinstate the petitioner on his original post in sanctioned pay scale;

(D) Pending hearing and final disposal of this petition to direct the first respondent to calculate the amount of arrears that would be admissible to the petitioner in case he succeeds in this petition and to produce it before this Hon’ble Court;

(E) To grant any other and further relief Your Lordship may deem fit and proper in the facts and circumstances of this case.”

3. Brief facts of the case are as under :

3.1. It is the case of the petitioner that the petitioner was appointed as an Assistant Teacher initially on 15.12.1986. According to the petitioner, he was a full time Teacher and was required to take 36 classes/periods in a week in the respondent No.2- School run by the respondent No.1-Trust.

3.2. The petitioner was initially paid Rs.10 per day for a period of three years which was raised to Rs.25 per day from forth year and thereafter, Rs.35 per day. The respondents terminated the services of the petitioner orally with effect from 1st June, 1999.

3.3. The petitioner therefore preferred an application being Application No.273 of 1999 before the Secondary Education Tribunal against his termination from service and against the action of the respondents for not paying the remuneration as per the prescribed scale of remuneration.

3.4. The respondent filed their objections to the maintainability of the application contending that the applicant is neither an employee of the respondent No.2-School nor an employee of the respondent No.1-Trust and as he is not an employee, the application under Section 38 of the Gujarat Secondary Education Act, 1972 (for short ‘the Act, 1972’) is not maintainable.

3.5. The District Education Officer also filed reply indicating that the petitioner was not appointed in accordance with the rules and his name was not on the muster-roll of the School and therefore he was not entitled to any relief.

3.6. The petitioner submitted the documentary evidence before the Tribunal to show that he had worked in the respondent-School by leading oral and documentary evidence by submitting two Certificates dated 07.08.1988 and 21.07.1990 at Ex.A and B issued by one Shri Jayantibhai Gordiya who was the Director in the School at the relevant time. The petitioner also produced Ex.C-a news-cutting which appeared in the news paper. It was also contended by the petitioner that as the petitioner demanded full salary as per the rules, the services of the petitioner was terminated from June, 1999 by the respondents. It is also the case of the petitioner that from August, 2002 for about three months, the petitioner was taken on job in J.P.Parekh School and documents in support thereof were placed at Ex.D before the Tribunal.

3.7. The Tribunal after considering the submissions made on behalf of the parties and after going through the evidence came to the conclusion that the appointment of the applicant in the respondent-School was not made in accordan