B. K. MEHTA, J. ( 1 ) BY this petition under Article 227 of the Constitution the petitioner who is the senior most teacher in the school down as Mahadev Shastri Vidyalaya run and managed by the respondent to. 1 trust challenges the order of Gujarat Secondary Education Tribunal dismissing his application in line as in the opinion of the Tribunal it did not disclose any cause of action inasmuch as there was no averment as to the breach of conditions of service which would invest the Tribunal with jurisdiction. the petitioner was required to move the Tribunal since he was not selected for the post of first Head Master of the said school inspite of the fact that he was the senior most teacher amongst eligible and suitable candidates for the said post. The Tribunal could not pursuade itself to entertain the petition since in its opinion the appointment was to be made purely on merits and the opinion of the Selection Committee about the suitability of the petitioners claim was not justiciable. It is this order of the Tribunal which is the subject-matter of this petition. ( 2 ) AT the time of hearing of this petition Mr. Ajmera the learned advocate for the petitioner raised the following two contentions:1 The Tribunal has failed to exercise jurisdiction on inisconstruction of proviso to sec. 35 (5) of the Gujarat Secondary Education Act 1972 hereinafter referred to as the Act inasmuch as it held that the appointment to the post of the Headmaster was to be made purely on merits; and2 In any case the Tribunal could not have rejected the application of the petitioner in limine without notice to the respondent trust on the ground that the question of suitability is not justiciable without any material in that behalf. These contentions were sought to be repelled by Mr. Sanjanwala learned advocate for respondent no. These contentions were sought to be repelled by Mr. Sanjanwala learned advocate for respondent no. 1 Trust by during that the question involved in this petition is concluded by the judgment of this court (Per N. H. Bhatt J.) in Special Civil Application No. 843/79 (Smt. Shantadevi K Sharma v. Manager Navjeevan Girls High School XXII G. L. R. 1116) pronounced on 4/02/1981 where on the facts which were on all fours with the facts of the present case the learned single Judge has rejected the petition of unsuccessful teacher challenging the order of the Tribunal where the Tribunal has rejected his application in limine on the same ground that the application did not disclose any cause of action in as much as the grievance made in the said application about the suitability was not justicable. 3 I am of the opinion that this petition should be allowed obviously for the following reasons: The Tribunal in its impugned order has recorded its findings in the following terms:"the condition for entertaining the application by this Tribunal is that there should be a dispute relations to the conditions of service between the employee and the employer school management. The jurisdiction vested in this Tribunal under sec. 38 of the Act is a very limited jurisdiction. This Tribunal cannot enlarge the jurisdiction because it would amount to encroachment on the jurisdiction of the ordinary civil court which practice is discouraged by the Honble the Supreme Court. Therefore the applicant should first satisfy this Tribunal that his grievance is based on the breach of any of the condition of his service The applicant say is that his Seniority has not been given due consideration by the Selection committee and therefore it amounts of breach of condition. It is not in dispute that the Selection for the post of Principal is to be made purely on merits. The proviso to sec. 35 (5) of the Act Provides:provided that for the purpose of such selection preference shall be given to a senior teacher serving in the school if he is otherwise eligible and suitable2. ACCORDING to the applicant he is the senior most teacher of the school and he is suitable as well eligible. The proviso to sec. 35 (5) of the Act Provides:provided that for the purpose of such selection preference shall be given to a senior teacher serving in the school if he is otherwise eligible and suitable2. ACCORDING to the applicant he is the senior most teacher of the school and he is suitable as well eligible. However it is nowhere provided in the section that the senior most teacher if he is eligible for appointment as a headmaster has to be selected even if the selection committee does not find him suitable for the post. His say is that he is suitable for the post of the headmaster and it is only because of the prejudice in the mind of the management that he has not been found suitable by the selection committee. It is difficult for me to agree that on this count he can be said to be basing his case on breach of the condition of his service. The suitability of a candidate for the post for which he has applied has to be decided by the selection committee constituted under the provisions of the Act and the Regulations under the directions issued by the Gujarat Secondary Education Board from time to time suitability referred to in proviso to sec. 35 (5) of the Act is to be decided by the selection committee and not by the court or by this Tribunal". With respect to the Tribunali am of opinion that the Tribunal has erred as rightly contended by the learned advocate of the petitioner and misconstrued the proviso when it held that it was not disputed that the selection for the post of Principal is to be made purely on merits. In my respectful opinion the Tribunal has failed to appreciate that the proviso in Elect and substance prescribes the criteria of selection for the post of Principal on the basis of merit-cum-seniority. In other words if everything is equal on the ground of eligibility and suitability the preference is to be given to the senior most teacher serving in the school or schools under the same management. The grievance of the petitioner before the Tribunal was that his seniority has not been given due consideration by the Selection Committee and therefore it amounted to breach of condition. The grievance of the petitioner before the Tribunal was that his seniority has not been given due consideration by the Selection Committee and therefore it amounted to breach of condition. The Tribunal has recorded this grievance in its order but was not impressed with that grievance since the selection in the opinion of the Tribunal was to be made purely on merits. It should be profitable to set out sub-secs. (4) and (5) of sec. 35 in order to appreciate as to what is the criteria prescribed by the Legislature for appointment to the post of Principal. " (4) Subject to the provisions of sub-sec. (1) of sec. 34 the school staff selection committee or as the case may be the special school committee shall select persons for appointment as teachers of the school from amongst the persons who are qualified to be appointed as such in accordance with the regulations made in this behalf:provided that for the purpose of such selection preference shall be given to a protected teacher if he is otherwise eligible. (4) The special school committee shall select persons for appointment to the Post of headmaster of the school from organist persons referred to in sub-sec. (4) or from amongst the teachers in the school:provided that for the purpose of such selection preference shall be give to a senior teacher such in the school or schools under the same management if he is otherwise eligible and suitable. The scheme for selection for the appointment to the post of teachers and Principal appears to be that appointment as a teacher is to be made from amongst persons who are qualified to be appointed as teachers in accordance with the Regulations made in that behalf; while the selection of persons for appointment to the post of Headmaster of the school is to be made from amongst persons so Quailed or from amongst the teachers in the school for which the appointment of Principal is to be made. The proviso however enjoins that for purposes of such selection a senior teacher serving in the school or schools under the same management is to be preferred if he is otherwise eligible and suitable. The proviso however enjoins that for purposes of such selection a senior teacher serving in the school or schools under the same management is to be preferred if he is otherwise eligible and suitable. The legislative intent behind this appears to be clearly manifest in this proviso that when the computation is between the teachers employed in the same school and the outsiders preference is to be given to the senior teacher serving in the school provided he is otherwise eligible and suitable. The rationale underlying this proviso appears to be that a senior teacher who has put in services in a school for which the appointment of Principal is to be made is to be preferred not only quo his junior teachers but quo outsiders provided everything is equal on merits. If this is the intent and rationale underlying the proviso I think with respect to the Tribunal that it clearly misconstrued the proviso and proceeded to reject the application in limine as if the only criteria for appointment is the suitability. It should be emphasized that it is not merely the suitability which is to be borne in mind while making appointment to the post of a headmaster. The Selection Committee has to bear in mind the eligibility as well as suitability of the candidates applying for the post of Headmaster and if amongst such candidates if there is already a senior teacher serving in the school or schools under the same management he is to be preferred. I am therefore of the opinion that the Tribunal has failed to exercise the jurisdiction on misconstruction of the proviso. The Tribunal could not have even rejected the application on the ground that the grievance about the suitability of the petitioner was not justifiable without any material prima facie indicating otherwise. It could have done so only after notice to the respondent-Trust. ( 3 ) THE contention of Mr. Sanjanwala based in decision of this court in Spl. C. A. 843/79 would not assist the cause which he is representing before me. Two questions arose before Bhatt J. in the said Special Civil Application. The first question was whether the Tribunal was competent to reject the application in limine and secondly whether the Tribunal was right in its conclusion that the petition disclosed no cause of action in terms of sec. 38 of the Act. Two questions arose before Bhatt J. in the said Special Civil Application. The first question was whether the Tribunal was competent to reject the application in limine and secondly whether the Tribunal was right in its conclusion that the petition disclosed no cause of action in terms of sec. 38 of the Act. The learned Judge answered the first question against the petitioner of that Special Civil Application holding that the Tribunal was competent to reject applications before it in limine. The learned Judge however qualified his answer by adding the following qualification:"if the petition discloses that dispute has been brought to the Tribunal by a teacher a Headmaster or a member of non-teaching staff in connection with the condition of service of such person the application is competent. More often than not such applications would be referring to some condition of service giving rise to a dispute and when such an averment is there in the petition itself it will be he duty of the-Tribunal to afford an opportunity to the applicant to make good that assertion of the condition of service and the consequential right resting on it. In such cases it will not be open to the Tribunal to summarily the application without affording an opportunity to the concerned application to adduce requisite evidence". Now this qualification added by the learned Judge goes against the client of Mr. Sanjanwala. In the present case before me the grievance has been made by the petitioner that the Selection Committee did not give promotion to him though he was senior most teacher. Mr. Sanjanwala however urged that he relies more on the second question where the learned single Judge held that the Tribunal was right in concluding that application before the Tribunal in that case did not disclose any cause of action. I am afraid how can this view of the learned single Judge in the facts and circumstances of the case before him can be any matter of precedent. The learned single Judge has in para 6 noted as under:"nowhere in this application I find that the petitioner had referred to her preferentail claim to be considered for appointment as a Principal on the basis of the condition of service". If there were no proper averments in that application before the Tribunal the Tribunal would have certainly rejected the application as one without any cause of action. Mr. If there were no proper averments in that application before the Tribunal the Tribunal would have certainly rejected the application as one without any cause of action. Mr. Sanjanwala however relied on the following paragraph which is the ratio of the decision:" I would reiterate that under sec. 38 (1) of the Act the jurisdictional fact is that there must be a dispute connected with the conditions of service and if in the application there is nothing to express or suggest by implication that the condition of service was the original cause of application the Tribunal would be fully justified in rejecting the application summarily on the ground that it discloses no cause of action". I do not think that there could be any disagreement with this principle. The grievance of the petitioner in the present case before me is that the Selection Committee has not given preference to his seniority and Mr. Sanjanwala fairly conceded that seniority is a condition of service. He however invited my attention to the following observations of the learned single Judge on which he relied heavily:"the Tribunal in this connection states that she asserted that she was better qualified than the respondent no. 2 for becoming the Principal of the school. Ex-parte assessment of Ones own capacities and capabilities by a litigant cannot furnish any cause of action. It is the subjective satisfaction of the Selection Committee based on objective facts that is at the root of the Selection and the allegation otherwise made by the petitioner in that application can hardly constitute the cause of action It is to be noted that what I have observed above is confined to the peculiar facts and circumstances of this case". I have not been able to appreciate how this observation which the learned single Judge has made in the peculiar facts and circumstances of the case can assist or advance the case of the client of Mr. Sanjanwala. Even subjective satisfaction of a statutory authority on objective facts can always be subject to judicial scrutiny by inquiring as to whether the formation of the said satisfaction had any factual basis or whether the executive had acted in good faith or whether the existence of relevant materials upon which the authority for exercise of executive power is protected are present (vide Ishwarlal Girdharlal Joshi v. State of Gujarat Anr. (1976) 8 G. L. R. 728 Mrinal Kanti Das Burman and Others. v. State of West Bengal and Others. (Full Bench) 1977 Lab. I. C. 628 ). ( 4 ) THE question of exercise of that judicial power is not arising for my determination since the Tribunal has rejected the application of the petitioner summarily. In that view of matter therefore this petition should be allowed and the order of the Tribunal should be quashed and set aside and the matter should be remanded to the Tribunal for deciding the application before the Tribunal afresh according to correct legal principles. Rule is made absolute with no order as to costs. Petition allowed. .