2016 (8) TMI 1306

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.... Bench relied upon a judgment rendered by a five-Judge Bench of the High Court in Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and Anr [2014 GLH 1]., in which it was held that a Special Civil Application under Articles 226 and 227 of the Constitution is not maintainable where the court or tribunal whose order is sought to be quashed is not impleaded as a party to the proceedings. The Appellant assails the judgment of the Division Bench. 2 The Appellant was employed as an Assistant Teacher on 30 June 1978 in a school conducted by the first Respondent, which is a minority institution. On 25 June 2002 a chargesheet was issued to the Appellant alleging that between 29 November 2001 and 15 December 2001, he had proceeded on a pi....

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.... held that the appeal was not maintainable. From the record, it appears that though the Tribunal was not impleaded as a party to the Special Civil Application, it was impleaded to the LPA. Be that as it may, the High Court relied upon a judgment of a Bench of five-Judges of that court in Gujarat State Road Transport Corporation (supra). The judgment, inter alia, holds that where a Special Civil Application is described as one under Articles 226 and 227 of the Constitution and the court or tribunal whose order is impugned is not made a party, the application would not be maintainable. In such an event, the objection to maintainability would - it was held - not be cured merely by impleading the tribunal or court to the LPA against a judgment ....

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....ority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable." 7 The Gujarat Secondary Education Act 1972 was enacted by the State legislature for the regulation of secondary education in the State. Section 2(o) defines the expression private secondary school to mean a secondary school which is not owned, managed or sponsored by the Central or the State Governments. In order to be a registered school under Section 2 (s), the school has to be registered by the Gujarat Secondary and Higher Secondary Education Board under Section 31. Section 39 provides for the constitution of a tribunal. Section 38 confers upon the tribunal the jurisdiction to de....

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....al, removal or reduction in rank of a headmaster, a teacher or a member of the non-teaching staff of a registered private secondary school is decided by the Tribunal to be wrong, unlawful or otherwise unjustified, the Tribunal may pass an order directing that the head master, the teacher or, as the case may be, the member of the non-teaching staff concerned shall be reinstated in service, or as the case may be, restored to the rank which he held immediately before his reduction in rank, by the manager, and the manager shall forthwith comply with such direction." The tribunal, in other words is constituted both as an original and an appellate adjudicating forum: an original forum to decide disputes under Section 38 (1) and an appellate for....