JUDGMENT : N.N. Mathur, J. Rule. By the impugned order dated 29.10.1996 the District Education Officer, Mehsana, has ordered that till Revabhai Parmar, clerk of the petitioner institution, is taken on duty, there shall be deduction of 25% in grant-in-aid to the said institution. 2. The petitioner is school run by Shri Soja Kelvani Mandal, Mehsana. Senior clerk Mr. R.B. Parmar was served with a show cause notice under Section 36(1)(a) of the Secondary Education Act, 1972 (hereinafter referred to as ‘the Act of 1972). An enquiry was conducted and report submitted on 28.2.1996. The said report was accepted by the management. In view of this a proposal was sent to the D.E.O. respondent No. 1 for the approval of dismissal. While the said proposal was pending with respondent No. 1 an application No. 215 of 1996 before the Gujarat Secondary Education Tribunal, Ahmedabad was being taken up at the instance of Mr. Revabhai making grievances that the management is not paying salary and he has not been allowed to discharge his duties. The matter was heard on 9.4.1996 by the Tribunal. It was again taken up on 11.4.1996 and ultimately the order was passed on 20.6.1996. It was contended by the management before the Tribunal that the said Revabhai Parmar was in habit of not attending the school and was in habit of remaining absent without getting leave sanctioned. The Tribunal however directed Revabhai to report on duty 24.6.1996 at school time. The school management was also directed to allow him to discharge his duties as clerk if he attends his duties regularly. The Tribunal, however, made it clear that if the department completes the inquiry and if any decision is taken by the management and the District Education Officer with regard to any penalty the order of the Tribunal shall not preclude the management from implementing that order. The Tribunal further clarified that the said order is passed without prejudice to the rights and contentions of all the parties and subject to the result of the application. I am informed that the said application is still pending before the Tribunal. The petitioner management passed the order of dismissal of Shri Revabhai Parmar on 6.8.1996. According to the management the District Education Officer deemed to have approved the proposal of dismissal under Section 36(2) of the Act. On 7.8.1996 the District Education Officer sent a letter rejecting approval. I am informed that the said application is still pending before the Tribunal. The petitioner management passed the order of dismissal of Shri Revabhai Parmar on 6.8.1996. According to the management the District Education Officer deemed to have approved the proposal of dismissal under Section 36(2) of the Act. On 7.8.1996 the District Education Officer sent a letter rejecting approval. The management informed the District Education Officer that the order of 7.8.1996 is of no consequence as the proposal for approval is deemed to have been approved as there was no communication within 45 days from the date of the receipt of the proposal. Thus, the District Education Officer by the impugned order dated 29.10.1996 passed an order of withholding 25% of the grant-in-aid till the said Revabhai Parmar is taken on duty. 3. Mr. D.P. Modi, District Education Officer, has filed an affidavit-in-reply. It is stated that the service of Shri Revabhai Parmar has been terminated in disregard of provisions of Section 36(1) and 36(2) of the Act of 1972. It is further stated that by communication dated 7.8.1996 the petitioner management was informed that approval to the proposed action of dismissal of Revabhai Parmar has not been granted. The said decision has not been challenged before Gujarat Education Tribunal in accordance with the provisions of Section 36(5) of the Act, 1972. Thus, the impugned order dated 29.10.1996 was passed reducing 25% of the total grant permissible under grant-in-aid. It is further stated that with the consent of the parties the hearing before him was adjourned till the decision is taken by the member of the Tribunal in application No. 215 of 1996 filed by Revabhai Parmar. The Tribunal passed an effective order in the said application on 20.6.1996. Copy of the said order was served on him on 24.6.1996. A further plea has been taken that the petitioner has not availed of alternative remedy under Section 36(5) of the Act. During the pendency of this petition, an application has been filed by Revabhai Parmar, party-in-person, to be joined as a party to the petition. He was given hearing only as an intervenor without joining him as a party to the petition. Considering the peculiar facts and circumstances of the case and with a view to find out an amicable solution, this court by order dated 16.10.1997 directed that Revabhai Parmar be allowed to join his duty forthwith. He was given hearing only as an intervenor without joining him as a party to the petition. Considering the peculiar facts and circumstances of the case and with a view to find out an amicable solution, this court by order dated 16.10.1997 directed that Revabhai Parmar be allowed to join his duty forthwith. He was directed to be paid salary by the District Education Officer. A further direction was given that the District Education Officer will either himself or by any other responsible officer give surprise inspection of the school to find out as to whether Revabhai Parmar is regularly attending the school and discharging his function. The District Education Officer was also directed to report the behaviour of the Headmaster and the management towards Revabhai Parmar. The question of withholding part of the grant-in-aid was postponed. On 17.12.1997 the court directed that Revabhai Parmar be still kept under observation. A further direction was given to the District Education Officer to release the grant to the school in accordance with law. The salary to Revabhai Parmar was directed to be paid directly. Certain counter-affidavit has been filed and it appears that the indulgence given by this court has not worked. In view of this, I proceed to hear the matter on merit. 4. It is contended by Mr. Pujara that the impugned order dated 29.10.1996 is ex-facie illegal and void for the reason that the District Education Officer could not insist to take Revabhai Parmar on duty as dismissal had become effective on deemed approval under the provisions of Section 36(2) of the Act, 1972. It is submitted that the proposal for dismissal of Revabhai Parmar was sent on 15.3.1996 which was received on the same day in the office of the District Education Officer. Therefore, if 45 days are to be computed from 15.3.1996 deemed approval will be by 30.4.1996. However, even if the contention of the respondent is taken that the hearing was postponed because of the application of Revabhai Parmar pending before the Tribunal and if the period during which hearing was postponed i.e. 9.4.1996 to 20.6.1996 is excluded still there was a deemed approval in the last week of July, 1997. Mr. However, even if the contention of the respondent is taken that the hearing was postponed because of the application of Revabhai Parmar pending before the Tribunal and if the period during which hearing was postponed i.e. 9.4.1996 to 20.6.1996 is excluded still there was a deemed approval in the last week of July, 1997. Mr. Pujara further submits that giving all concession even if the period of 45 days is computed from the date of decision of the Tribunal dated 20.6.1996 then also on 6.8.1996 45 days have expired and therefore there was a deemed approval in accordance with the provisions of Section 36(2) of the Act. In view of this, the order dated 7.8.1996 refusing the approval is of no consequence and as such it is not required to be challenged in appeal. 5. For the convenience Section 36 of the Act of 1972 is extracted as follows:- "36(1) No person who is appointed as a head-master, a teacher or a member of non-teaching staff of a registered private secondary school shall be dismissed or removed or reduced in rank nor shall his service be otherwise terminated by the manager until - (a) he has been given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him and (b) the action proposed to be taken in regard to him, has been approved in writing by an officer authorised in this behalf by the Board, provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only. (2) The officer referred to in clause (b) of sub-section (1) shall communicate his decision within a period of forty-five days, from the date of receipt by him of the proposal under the said (b) and if such decision is not communicated to the manager by the said officer within such period the action proposed to be taken under the said clause (b) shall be deemed to have been approved by the said officer. (3) Where a head master, a teacher or a member of non-teaching staff of a registered private secondary school is suspended by the manager of the school pending any inquiry proposed to be held against him, the fact of such suspension together with the grounds therefor, shall be immediately communicated by the manager to an officer authorised in this behalf by the Board, and such suspension shall be subject to ratification by the said officer within a period of forty-five days from the date of the receipt of the communication in this behalf by such officer and if such ratification is not communicated to the manager by the said officer within such period, the suspension under reference shall cease to have effect on the expiry of such period. (4) Where a head master, a teacher or a member of the non-teaching staff of a registered private secondary school desires to submit his resignation, the resignation shall be tendered by him in person to the District Education Officer concerned and shall not be accepted by the manager unless it is so tendered and forwarded to him by such officer duly endorsed. The acceptance of any such resignation tendered in contravention of this sub-section shall be ineffective. (5) Any person aggrieved by an order of the authorised officer under clause (b) of sub-section (1) may make an appeal to the Tribunal within a period of thirty days from the date of the decision of the authorised officer." 6. A reading of provisions of Section 36 shows that there is an embargo on dismissal of the service of non-teaching staff of a registered private society firstly unless such person has been given a reasonable opportunity of showing cause against the proposed action and secondly that such a proposed action has been approved in writing by an officer authorised in this behalf by the Board. Sub-Section (2) of Section 36 provides that if a decision is not taken by the competent authority under the provisions of clause (b) of sub-Section (1) of Section 36 within a period of forty-five days from the date of receipt of the proposal, such proposal shall deem to have been approved by the said officer. Obviously the object of this provision is to check inaction on the part of the executive. Obviously the object of this provision is to check inaction on the part of the executive. In the instant case the proposal was sent on 15.3.1996 and the same was received on the same day in the office of the District Education Officer. Therefore, the limitation of 45 days starts running from the same day. There is no provision of exclusion of time for whatever good reason. Even if it is assumed that by agreement the time taken before Tribunal for decision on interim application, can be excluded then also Department can be entitled to exclusion for the period 9.4.1996 to 20.6.1996 i.e. 71 days and not beyond that. Thereafter, if the calculation is made from that angle, 45 days expired on 28.7.1996. Once having held that there is a deemed approval in accordance with the provisions of Section 36(2) of the Act, the order of 7.8.1996 is no order in the eye of law. It may be stated that the District Education Officer has not taken any stand as to how period for deemed approval has to be computed. Therefore, having known that deemed approval has taken place, non-effective order was passed on 7.8.1996. Such an order is not only illegal but a non-est order. It is not obligatory on the part of the petitioner to challenge such non-est order. Since the impugned order dated 29.10.1996 is passed on the basis of such non-est order dated 7.8.1996, its validity cannot be upheld. Once there is a deemed approval it was erroneous on the part of the District Education Officer to insist upon to take Revabhai Parmar on duty. 7. In view of the aforesaid the Special Civil Application is allowed and the order of the District Education Officer dated 29.10.1996 is quashed and set aside. It is made clear that the order dated 16.10.1997 of this court to take Revabhai Parmar on duty is vacated. However, the salary paid to him under the orders of this court shall be regularised. This order will not have any reflection on the merits of the application of Revabhai Parmar pending before the Tribunal. Rule is made absolute to the aforesaid extent.