S.A. Shah, J.
1. The petitioner herein is a secondary school registered under the provisions of the Gujarat Secondary Education Act, 1972. It is also registered under the Bombay Public Trust Act, 1950. The petitioner challenges two orders, namely, (1) dated 4-11-1977 signed by the Section Officer, Education Department, Sachivalaya, Gandhinagar, at Annexure-G which is addressed to the Secretary, Gujarat Secondary Education Board conveying that the appointment of respondent No. 3, D.T. Chaddarwala, to the post of Headmaster in the petitioner-school be sanctioned as a special case; and (2) order dated 14-11-1977 passed by the District Education Officer, Bharuch, directing the petitioner-school to continue respondent No. 3 as Headmaster and treat his appointment as valid from June 1976 and to pay him emoluments attached to the said post. The said order is produced at Annexure-F.
2. The relevant facts which require consideration are as under: Respondent No. 3 who was appointed as an Assistant Teacher in the petitioner-school with effect from 26-6-1972 was holding degree of B.Sc. After his appointment respondent No. 3 acquired B.Ed., the requisite educational qualification, and became a trained teacher on 2-5-1973 and was granted regular pay-scale from June, 1973. It is an admitted position that respondent No. 3 was junior to one Assistant Teacher, Miss Madhuben Mehta. It appears that Mr. S.B. Shah who was working as Headmaster in the petitioner-school was suspended from service on or about November 1, 1974 pending departmental enquiry and he ultimately resigned from the post of Headmaster with effect from 23-6-1975. Even though Miss Madhuben Mehta was senior to respondent No. 3, respondent No. 3 was given charge of the post of Headmaster from 1-11-1974 to which Miss Madhuben Mehta objected. It is also on record that the District Education Officer, who is in charge of the schools, also objected to such illegal course and wrote a letter to the petitioner-trust on 25-11-74 directing the school to follow the prescribed procedure. The said letter is produced at Annexure-A. In spite of this letter the school management did not take any action till respondent No. 3 was detained under Maintenance of Internal Security Act (MISA) on 13-3-1976. It is on record that Miss Madhuben Mehta was appointed In-charge Headmaster with effect from March 13, 1976.
3. Respondent No. 3 was released from detention in January, 1977. He has contended in his affidavit dated 23-1-1978 that an advertisement was issued in the daily newspaper 'Pratap', by the school, inviting applications for the post of Headmaster. All the teachers working in the petitioner-school were informed about the fact that appointment of Headmaster was to be made and that all the eligible teachers of the school should also apply. He has further stated in the affidavit that after holding interview for the said post on 17th April 1977 the management has made his appointment as Headmaster and the order of appointment was also communicated to him on 18th April, 1977. However, this material document has not been produced by respondent No. 3 in his affidavit, but he wants to rely about these facts by producing another communication dated 15-10-77 at Annexure-Q to show that his appointment of 18-4-77 has been cancelled on account of the objection taken by the authorities and he has been continued as Assistant Teacher in the petitioner-school and appointment of Miss Mehta was made by the management, and he was requested to hand over the charge to Miss Mehta.
4. There is no dispute to the fact that the committee of management of the petitioner-trust, after considering the letter of the Secondary School Board and other documents and relevant facts, appointed Miss Madhuben Mehta as Headmaster by a resolution dated 14-10-1977. The management also relied upon the direction of the District Education Officer dated 19-10-77, produced at Annexure-D, informing the petitioner-school that the appointment of respondent No. 3 was not accepted by the Government and that the appointment of Miss Madhuben Mehta as In-charge Headmaster cannot be continued for a long time and therefore, according to the circulars issued from time to time by the Government, her regular appointment may be made. In fact the regular appointment was made by the Board of management prior to this letter i.e. on 14-10-1977.
5. It appears that the District Education Officer, by his communication dated 14-11-1977, directed the management to implement the orders passed by the Government dated 4-11-1977 and to appoint respondent No. 3 as Headmaster with retrospective effect which compelled the management to file this petition challenging the aforesaid orders.
6. Mr. Vyas, learned Counsel appearing on behalf of the petitioner raised the following submissions for my consideration:
(i) Under the provisions of Section 35(b) of the Gujarat Secondary Education Act (hereinafter referred to as 'the Act') power to appoint a Headmaster vests with the School Committee. In the instant case the appointment has been made by the whole body of management and, therefore, the authorities had no power to issue any contrary directions.
(ii) Permanent appointment was made on 14-10-1977 and under the provisions of Regulation 20 respondent No. 3 was not qualified for appointment to the post of Headmaster.
(iii) Miss Mehta was senior to respondent No. 3 and her appointment as Headmaster, both on account of her seniority and on account of the decision of the management was in consonance with the legal provisions and regulations.
(iv) In any view of the matter, such drastic order passed by the Government is in violation of the rules of natural justice inasmuch as neither the management nor Miss Mehta was heard before cancelling the order of her appointment and making appointment of respondent No. 3 which is ultra vires the powers of the authorities.
Mr. Tripathi, learned advocate appearing on behalf of respondent No. 3 has drawn my attention to the affidavit filed by his client and stated that his client was eligible to be appointed as Headmaster and that he was unlawfully detained under MISA and, therefore, the Government has made appointment of his client as a special case under the policy adopted by the Government to give relief to the persons who were wrongly detained under MISA. I am afraid, the latter part of his submission is contrary to the provisions of law inasmuch as Section 35(7) in terms states that any appointment of a Headmaster or a teacher made in contravention of the provisions of this section shall be ineffective. 1 asked Mr. Tripathi to show any provision of the Act or the regulations wherein the Government or the District Education Officer has been given any power to make appointment of a Headmaster or issue such mandatory directions. Mr. Tripathi fairly conceded that though there is no express powers the order has been passed by the respective authorities on a consideration of the policy to give redress to the persons who were illegally detained under MISA. It is, therefore, very clear that there is no statutory provisions under which the State Government is invested with powers to direct the appointment of a Headmaster or a teacher. On the contrary, Sub-section (7) of Section 35 prohibits contravention of the statutory provisions made in Section 35.
7. Now let us consider the argument of Mr. Vyas in the order in which the same has been advanced.
It is necessary to reproduce the relevent provisions of Section 35 to appreciate the first contention of Mr. Vyas which reads as under:
35. (1) For every registered private secondary school there shall be following two committees, namely:
(a) a school staff selection committee for the purpose of recruiting the teaching staff of the school other than the headmaster,
(b) a special school committee for the purpose of recruiting the headmaster, and for the purpose of the initial recruitment of the headmaster and the teaching staff of a school started after the appointed day.
xxx xxx xxx(7) Any appointment of a headmaster or a teacher made in contravention of the provisions of this section shall be ineffective.
8. It is not disputed that the appointment has been made by the whole body of management on 14-10-77, i.e. prior to the orders of the Government. A bare look at the communication dated 19-10-1977 at Annexure-D clearly directs that the respondent No. 3 was not acceptable to the Government as Headmaster and that Miss Mehta may be appointed on regular basis. There are some other documents on record which also require consideration. It appears that the management had some soft-corner for respondent No. 3 and the management has m fact tried to appoint him as Headmaster. But the Gujarat Secondary Education Board, Gandhinagar. by as letter dated 14-6-1977 in terms did not accept the appointment of respondent No. 3 as he was not eligible under Regulation 20(1). I will deal with the point of eligibility separately. Suffice it to say that neither the Gujarat Secondary Education Board nor the Government till letter dt. 19-10-77 when Annexure-D was written were in favour of the appointment of respondent No. 3, as Headmaster and they had suggested as early as in 1974 to redress the grievances of Miss Mehta who was senior to respondent No. 3. In the aforesaid view of the matter the first contention of Mr. Vyas requires to be accepted. The appointment made by the management cannot be questioned on the ground shown in the impugned letters. The impugned communications at Annexures F and G are clearly in contravention of Sub-section (7) of Section 35, or in any case Mr. Tripathi is not able to show any such power vested with the State Government to issue directions for the appointment of a Headmaster.
9. The next contention of Mr. Vyas is that on the date of appointment, i.e. 14-10-1977 respondent was not even qualified, in other words was not eligible, to be appointed as Headmaster and, therefore, in view of the mandatory provisions of Regulation the order of the Government is in clear contravention of the provisions of Regulation 20(1). To this Mr. Tripathi's answer was that his client had completed three years in 1976 and his client's case should be governed under the unamended Regulation 20(1) and he having completed three years of service was eligible to be appointed as Headmaster. In my opinion the argument of Mr. Tripathi is totally misconcieved. The post of Headmaster fell vacant on the resignation of Mr. Section B. Shah, the then Headmaster, with effect from 23-6-1975. Provisions of old Regulation 20 requires three years' teaching experience after acquiring the qualification for the post of Headmaster. It is an admitted position that respondent No. 3 had not completed three years' teaching experience as on 23-6-1975. Even on that limited argument, respondent No. 3 was not qualified. In my opinion the relevant date for considering the eligibility of a candidate is not when the vacancy was created but when the appointment was made, because one has to consider the eligibility when one person is appointed on the vacant post. Now on 14-10-1977 when the appointment of Miss Mehta was made the regulation was amended (amended on 21-6-76) and the new regulation will be applicable which reads as under:
20(1) No person shall be appointed as Headmaster or a second Head unless he is trained graduate (B.T, or B.Ed.) or its equivalent as declared by the State Government (with post-training/teaching inspecting experience of not less than five years of which at least three years' teaching experience must be in a secondary school:
Provided that in a school having exclusively girl students, no person other than a woman having the aforesaid qualifications shall be appointed as Head/Second Head.
10. Respondent No. 3 was appointed as an Assistant Teacher on 26-6-1972. He acquired training qualification of B.Ed, on 2-5-1973. On the date of the appointment i.e. on 14-10-1977 admittedly he had not acquired the requisite experience of five years or more and, therefore, he was not qualified to be appointed as Headmaster. Even on 23rd June 1975 when vacancy occurred considering the old regulation he had not completed three years of service as a qualified teacher and, therefore, also was not qualified to be appointed as a Headmaster. In this view of the matter respondent No. 3 cannot be appointed as Headmaster of the petitioner-school, being not eligible.
11. The order of the Government, therefore, is contrary to the new Regulation 20(1) as well as old Regulation 20(1) on the face of it and cannot be sustained. This 1 have reproduced only to show that even according to the submission of Mr. Tripathi the orders of the Government cannot be sustained. According to my opinion the new Regulation 20 is applicable when the vacancy was to be filled on 14-10-1977 and no order giving retrospective appointment can be passed after the new regulation came into force.
12. The next contention of Mr. Vyas that Miss Mehta was senior to respondent No. 3 is also not disputed by the other side. Therefore, appointment of Miss Mehta as Headmaster both on facts as well as in law is legal and valid and her right must be sustained.
12.1. The next contention of Mr. Vyas that the orders have been passed Without hearing either the management or the concerned party, namely, Miss Mehta, shall have to be accepted, because the State Government, by the aforesaid impugned orders, has effected the rights of the management as well as Miss Mehta. Such orders being passed without hearing the management or the party concerned is directly in violation of the principles of natural justice. It has now been made clear by the Supreme Court that even administrative orders which affect the rights of the parties must be made after observing the principles of fair-play and justice. The orders are, therefore, passed in violation of the principles of natural justice and cannot be sustained.
13. In the result the petition succeeds. The impugned orders at Annexure-F dated 14-11-77 and Annexure-G dated 4-11-77 along with consequential orders of respondent No. 2 dated November 23, 1977 at Annexure-L and December 1, 1977 at Annexures-O and M are hereby quashed and set aside. Rule made absolute with costs. Appropriate writ be issued.