IMPORTANT POINT
Compulsory retirement does not require prior approval under Section 36(1) of the Gujarat Secondary Education Act, distinguishing it from termination and emphasizing the need for procedural fairness.

ORDER :

Vaibhavi D. Nanavati, J.

1. Heard Mr. Mishra, learned advocate appearing for the petitioner, Ms. Nidhi Vyas, learned APP appearing for the respondent No.1 and Ms. S.A. Joshi, learned advocate appearing for the respondent No.2.

2. By way of this petition, the petitioner herein has challenged the order dated 26.03.2007 passed by leaned Secondary Education Tribunal in Appeal No.1 of 2005 as well as consequential order dated 04.04.2007 passed by the respondent No.2 in compulsory retiring the petitioner.

3. The petitioner has prayed for following reliefs:-

“(A) Be pleased to admit the present special civil application.

(B) Be pleased to issue a writ of certiorari and/or a writ in the nature of certiorari by quashing and setting aside the order dated 26-3-2007 passed by the Ld. Gujarat Secondary Education Tribunal in Appeal No. 1/2005 as well as the consequential order dated 4-4-2007 passed by the respondent no.2 by further restoring the service of the petitioner in school namely Shri K.N. Shah Modasa High School.

(C) Pending the hearing and final disposal of this petition, be pleased to grant ad interim relief by staying the impugn orders dated 26-3-2007 passed by the Ld. Tribunal in Appeal No. 1 / 2005 as well as consequential order dated 4-4-2007 passed by the respondent no.2 by further restoring the service of the petitioner forthwith.

(D) Be pleased to pass such other and further orders as deem fit in the interest of the justice.”

4. Brief facts of the present case are as under:-

4.1 The petitioner was initially appointed as assistant teacher in Shri N. S. Patel High School, Sayra in the pay scale of Rs.440 – 750 with effect from 24.07.1978. Respondent No.1, by order dated 12.07.1989, appointed the petitioner in Shri K.N. Shah Modasa High School on being declared surplus in the Shri N.S. Pate High School, Sayra due to reduction of classes. From the very beginning, respondent No.2 was not ready to accept the petitioner and did not allow the petitioner to join the service in view thereof petitioner had to approach the learned Tribunal by way of Application No.148/89, which came to be allowed by order dated 05.10.1989. In the year 1993, respondent No.2 has managed in reallotting the petitioner at Shri N.S. Patel High School and in view thereof the petitioner had to approach the learned Tribunal for appropriate relief. In the said application, also learned Tribunal pleased to allow the application of the petitioner by directing the D.E.O. to hold proper inquiry in the matter upon detail inquiry that the petitioner was required to be continued at Shri K N Shah High School.

4.2 It is the case of the petitioner that the petitioner was not cooperating in the misdeed of the school management and raising voice against the said activities of the school management, respondent no.2 was always finding the way to get a rid away of the petitioner and harassing the petitioner.

4.3 It is the case of the petitioner that respondent No.2 alleged against the petitioner that the petitioner has inflicted very strict physical punishment upon one Radhika R. Patel student of standard 8/B and for which show cause notice came to be issued to the petitioner on 24.11.2003. The petitioner had replied to the said show cause notice. Second show cause notice issued on 23.12.2003 and the petitioner was informed with regard to initiation of departmental inquiry. On 20.02.2004, charges were framed by the committee constituted by one Shri Chatursinh M. Chauhan as Head and Member of the Board, Shri Vallabhbhai Patel as representative of the respondent No.2 and Shri Dashrathbhai Upadhyay representative of the petitioner. The petitioner replied to the said charges on 05.03.2004 and objected against the representative of the respondent No.2 being a law graduate, it appears that accordingly the representative of the respondent No.2 came to be changed under the new member Shri Bipinbhai R. Shah came to be appointed without following any procedure. Departmental proceedings are