IMPORTANT POINT
The court held that a petitioner selected prior to a government resolution is entitled to regular pay-scale instead of a fixed salary, quashing the tribunal's contrary decision.

JUDGMENT :

1. Heard Ms.Mamta Vyas, learned advocate appearing for the petitioner, Mr.Jayraj Chauhan, learned advocate appearing for the respondent no.1 and Ms.Suman Motla, learned A.G.P. appearing for the respondent nos.2 and 3.

2. By way of the present petition, the petitioner herein has challenged the order dated 24.01.2002 passed by the District Education Officer, granting approval of appointment of the petitioner as Shikshan Sahayak qua the fixed salary of Rs.4,000/- as also, the oral judgment dated 07.09.2010/08.09.2010 passed by the learned Gujarat Secondary Education Tribunal in Application No.115 of 2009, which is duly produced at page 11 and has prayed for the following reliefs:-

“(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dtd. 24.1.2002 passed by the District Education Officer granting the approval to the appointment of the petitioner as “Shikshan Sahayak” qua the fixed salary of Rs.4,000/- as also the oral judgment dated 7.9.2010/8.9.2010 passed by the Secondary Education Tribunal in Application No.115 of 2009 and further be pleased to direct the respondents to pay the arrears of pay of salary in the regular pay scale with effect from the date of his appointment.

(B) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to call for the record and proceedings in the Application No.115/2009 from the Tribunal;

(C) Be pleased to pass such other and further relief as may be deemed fit by Your Lordships in the facts and circumstances of the case and in the interest of justice.”

3. It is the case of the petitioner that the respondent no.1 is a grant-in-aid registered private secondary school. The respondent no.2 herein granted no objection certificate to the respondent no.1 for initiating the process of selection/recruitment for appointment of the teacher with qualification of B.A. on the reserved post of Scheduled Tribes category. Despite of three attempts made by the respondent no.1, the respondent no.1 did not receive any application from S.T. candidate. As per the norms, the respondent no.2 issued another no objection certificate on 08.04.1999 converting the post from reservation for S.T. category to Baxi Panch category. The respondent no.1 issued advertisement on 21.04.1999 in ‘Jan Satta’ newspaper. The petitioner herein, possessing requisite qualifications and belonging to the reserved category, registered the candidature on 26.04.1999. Interviews were held on 17.05.1999 wherein, the petitioner came to be selected. The management appears to have sent proposal to the D.E.O., seeking approval for the purpose of grant. On 03.07.1999, the D.E.O. declined to grant approval on the ground that the post was not available in the school in view of the 20% ban on recruitment by the respondent – State. Thereafter, there were some correspondences between the respondent no.1 and the respondent no.2 and by order dated 24.01.2002, the D.E.O. i.e. the respondent no.2, accorded the approval to appoint the petitioner herein as Shikshan Sahayak on fixed pay of Rs.4000/- per month in view of the new grant-policy of the government contained in the government resolution dated 02.07.1999.

3.1. The petitioner herein approached the learned tribunal by preferring Application No.332 of 2002, raising a grievance that the process of appointment was initiated and completed prior to the issuance of the government resolution dated 02.07.1999 and that, the respondent no.2 ought to have approved the appointment as Assistant Teacher in the regular pay-scale instead of giving approval as Shikshan Sahayak from subsequent date of 01.02.2002. The said application came to be rejected by the learned tribunal vide order dated 01.09.2004 on the ground that no order was passed by the management. The petitioner thereafter, made representation to the respondents on 05.05.2008 and in absence of any response from the respon