JUDGMENT : 1. By way of the present petitions under Article 226 of the Constitution of India, the petitioners have, inter alia, sought the arbitrary, high-handed and capricious action adopted by the respondent No.2-District Education Officer (DEO) under instructions of respondent No.1-State of Gujarat, Education Department by issuing the impugned order dated 05.08.2004 (in Special Civil Application No.4998 of 2007) directing petitioner No.1-Mahendra Kanaiyalal Secondary & Higher Secondary School (“the petitioner-School” for short) to absorb respondent No.3 as Assistant Teacher in the petitioner-School. Petitioners have also sought the impugned order dated 25.04.2006 (in Special Civil Application No.10694 of 2006) imposing 5% cut in grant of the petitioner-School. 2. The brief facts of the case as enumerated in the petition are that the petitioner-School is engaged in imparting education and is run by petitioner No.2-Gujarat Law Society (“the petitioner-Society” for short). The petitioner-School receives grant-in-aid from respondent No.1-State of Gujarat. The petitioner-Society is, inter alia, engaged in imparting education to the students studying in different faculties at the graduate, postgraduate level as well as at the school level from Kindergarten to Higher Second School level. For the said purpose, the petitioner-Society is running several colleges and schools and other educational institutions. The petitioner-Society is employment teaching and non-teaching staff for running their activities of imparting education in the aforesaid schools and colleges. 2.1 The respondent No.3 was appointed as Assistant Teacher for the petitioner-School by the petitioner-Society vide letter of appointment dated 09.06.1989. The respondent No.3 requested to join the new school viz. N.R. Secondary & Higher Secondary School and after approval was granted by respondent No.2-DEO and the Gujarat Secondary Education Board, respondent No.3 reported at the petitioner-School w.e.f. 01.04.1994. 2.2 It is the case of the petitioners that notices were issued to respondent No.3 for committing several misconducts in the past. The respondent No.3 had lastly misbehaved with the Principal of the petitioner-School and hence, a disciplinary inquiry was initiated against him. Due to the intervention of respondent No.2–DEO the disciplinary inquiry initiated against respondent No.3 was dropped and he was declared surplus teacher as per order dated 31.12.1998 passed by respondent No.2-DEO. The respondent No.3 had lastly misbehaved with the Principal of the petitioner-School and hence, a disciplinary inquiry was initiated against him. Due to the intervention of respondent No.2–DEO the disciplinary inquiry initiated against respondent No.3 was dropped and he was declared surplus teacher as per order dated 31.12.1998 passed by respondent No.2-DEO. It is stated by the petitioners that respondent No.3 was declared as surplus teacher from the school run by the petitioner-Society management for committing serious misconducts on the basis of the request made by respondent No.3 and accordingly respondent No.2-DEO had also passed an order dated 31.12.1998 declaring respondent No.3 as surplus teacher. 2.3 Learned Senior Advocate Mr.S.I. Nanavati for the petitioners submitted that the respondent No.2-DEO had issued an order dated 05.08.1999 to absorb respondent No.3 in Cadila High School, Ahmedabad but without assigning any reasons, the said order was cancelled as per the instructions of the Hon'ble Education Minister vide order dated 20.08.1999. It was submitted that even though the vacancy existed in the Cadila High School but, due to the reasons best known to the respondents, the said order of absorbing respondent No.3 in the said school was cancelled within 15 days only. 2.4 Thereafter, respondent No.2-DEO had passed another order dated 29.01.2000 directing Asia English School, Thaltej to absorb respondent No.3, however, the said school did not absorb respondent No.3, even though initially the Secondary Education Tribunal had directed that respondent No.3 should not be restrained from reporting for duties. The respondent No.2-DEO vide letter dated 02.03.2000 cancelled the said order dated 29.01.2000 to absorb respondent No.3 in Asia English School, Thaltej. 2.5 Mr. Nanavati, learned Senior Advocate for the petitioners submitted that the petitioner-School has come to know that several orders were passed by respondent No.2-DEO about absorption of respondent No.3 but, he (respondent No.3) had not joined the duties at any other school and respondent No.2-DEO also had not initiated any proceedings against such institutions/ schools. 2.6 Thereafter, the respondent No.2-DEO had passed an order dated 05.08.2004 to absorb respondent No.3 as surplus teacher, in the petitioner-School without any request made by the petitioner-School. Respondent No.2-DEO vide order dated 29.09.2004 also informed the petitioner-School about the order passed on 05.08.2004. 2.6 Thereafter, the respondent No.2-DEO had passed an order dated 05.08.2004 to absorb respondent No.3 as surplus teacher, in the petitioner-School without any request made by the petitioner-School. Respondent No.2-DEO vide order dated 29.09.2004 also informed the petitioner-School about the order passed on 05.08.2004. 2.7 The petitioner-Society vide order dated 11.08.2004 informed respondent No.2-DEO that they have not asked for any No Objection Certificate for any teachers in the subjects of Mathematics and Science as well as per the order passed by this court it was not possible for them to accept any surplus teachers unless the NOC is given to the extent of the surplus teachers who have already been absorbed and, therefore, it was not possible for them to accept respondent No.3, as a surplus teacher. 2.8 Learned Senior Advocate Mr.S.I. Nanavati for the petitioners submitted that respondent No.2-DEO had directed that all the employees of the schools should open account with the UTI Bank for getting salary under the direct payment scheme. The respondent No.3 had gone out of India and, therefore, he did not open his account with the UTI Bank. Learned Senior Advocate stated that it has also come to the knowledge of the petitioners that since October 2003 the salary was not credited to the UTI Bank account but in the pay bill the salary for every month was provided by respondent No.2-DEO. The office of respondent No.2-DEO had lastly, vide letter dated 12.01.2006 informed to the Principal/ Management, N.R. High School to stop the salary with immediate effect. 2.9 It is the case of the petitioners that respondent No.3, in the meantime, had filed Special Civil Application No.24594 of 2005 before this court for getting salary for the period from 01.10.2003 onwards and for absorption in the petitioner-School. During the course of hearing of the said writ petition, the learned advocate for respondent No.3 submitted that since the petitioners have not challenged the impugned order dated 05.08.2004, their writ petition should be allowed, however, the said writ petition came to be disposed of by the Coordinate Bench vide order dated 23.01.2007. 2.10 Learned Senior Advocate Mr.S.I. Nanavati appearing on behalf of the petitioners submitted that thereafter, the respondent No.2-DEO vide letter dated 05.04.2006 informed the petitioners that even though the orders were passed to absorb respondent No.3 as surplus teacher, the petitioners have not absorbed him. 2.10 Learned Senior Advocate Mr.S.I. Nanavati appearing on behalf of the petitioners submitted that thereafter, the respondent No.2-DEO vide letter dated 05.04.2006 informed the petitioners that even though the orders were passed to absorb respondent No.3 as surplus teacher, the petitioners have not absorbed him. the petitioners were also directed to submit explanation within ten days. The said letter was received on 13.04.2006. The respondent No.2-DEO vide letter dated 18.04.2006 informed the petitioners about sanctioning leave of respondent No.3 as he had gone abroad. The petitioner-School vide letter dated 24.04.2006 informed respondent No.2-DEO that they have not received any letter dated 30.01.2006 and the application for leave is addressed by respondent No.3 to respondent No.2-DEO and, therefore, both the original letters were returned. 2.11 It was contended by learned Senior Advocate Mr.S.I.Nanavati for the petitioners that the respondent No.2-DEO vide order dated 25.04.2006 informed the petitioners that 5% of the total grant of the petitioner-School has been deducted and further directed that after 5% of the total grant of the school is deposited the salary of the school will be made. The said order was received on 06.05.2006. The respondent No.2-DEO without following the principles of natural justice and also without any authority of law has passed the said order, whereby the salary of all the employees of the school was not released. The petitioners challenged the said order dated 25.04.2006 before this court by filing Special Civil Application No.10694 of 2006, which came to be admitted vide order dated 18.09.2016 and adinterim relief has been granted in terms of Paragraph No.9B thereof. 2.12 The respondent No.3 was declared surplus from N.R. Secondary and Higher Secondary School vide order dated 31.12.1998 and thereafter, he had never worked with the said school which is run by the petitioner-Society. However, his name was continued in the salary sheet every month and he was paid the salary under the direct scheme by respondent No.2-DEO. 2.13 Learned Senior Advocate Mr.S.I.Nanavati for the petitioners submitted that the respondent No.2-DEO cannot direct the petitioner-School to absorb respondent No.3 as he was declared surplus on the ground of indiscipline from N.R. Secondary & Higher Secondary School, which is also run by the petitioner-Society. 2.13 Learned Senior Advocate Mr.S.I.Nanavati for the petitioners submitted that the respondent No.2-DEO cannot direct the petitioner-School to absorb respondent No.3 as he was declared surplus on the ground of indiscipline from N.R. Secondary & Higher Secondary School, which is also run by the petitioner-Society. Learned Senior Advocate for the petitioners submitted that when respondent No.3 had committed serious misconducts and he was declared surplus from the Institute/School belonging to the petitioner-Society, the action of respondent No.2-DEO to direct the petitioner-School to absorb respondent No.3 is unjust, illegal, improper and deserves to be quashed and set aside. 3. Learned Senior Advocate Mr.S.I. Nanavati for the petitioners submitted that respondent No.3 after committing serious misconducts at N.R. Secondary & Higher Secondary School, was for some time provided teaching work at the petitioner-School. It was submitted that respondent No.3 tried to assault the Principal of the petitioner-School and misbehaved with him by shouting loudly bad words in the school premises. It was further submitted that the Principal of the petitioner-School had filed an N.C. complaint against respondent No.3 on 04.03.1998. Thereafter, respondent No.3 was issued suspension order on 05.03.1998 and respondent No.2-DEO vide order dated 11.03.1998 had also given approval to the action of issuing suspension order to respondent No.3. It was submitted that respondent No.3 had also misbehaved with the Principal of the petitioner-School and also committed serious misconduct and tried to assault him. Learned Senior Advocate for the petitioners therefore, submitted that it would not be proper for respondent No.2-DEO to direct the petitioner-School to absorb respondent No.3. 3.1 It was submitted on behalf of the petitioners that respondent No.2-DEO has tried to favour respondent No.3 from the very beginning and he has been paid lacs of rupees as idle wages even though he is engaged in his personal business/ commercial activities and he is also often visiting foreign countries. It was submitted that respondent No.2-DEO has not taken any action against any other school/institute for not absorbing respondent No.3 but only the petitioners are compelled to absorb him and they have been penalized for no fault of their own. It was further submitted that the action of respondent No.2-DEO is violative of Article 14 of the Constitution of India and being discriminatory, the order dated 05.08.2004 to absorb respondent No.3 in the petitioner-School deserves to be quashed and set aside. It was further submitted that the action of respondent No.2-DEO is violative of Article 14 of the Constitution of India and being discriminatory, the order dated 05.08.2004 to absorb respondent No.3 in the petitioner-School deserves to be quashed and set aside. 3.2 Learned Senior Advocate for the petitioners submitted that respondent No.2-DEO knowing fully well that respondent No.3 is engaged in some other profession and for that purpose he had gone abroad several times as well as applied for leave for that purpose and only because of that reason he is not reporting for duties at any other school, no action has yet been initiated against respondent No.3 by respondent No.2-DEO. 3.3 Learned Senior Advocate Mr.Nanavati for the petitioners submitted that the issue about the absorption of respondent No.3 was pending in this Court being Special Civil Application No.24594 of 2005 filed by respondent No.3. It was submitted that when the said petition came up for final hearing on 23.01.2007, this court disposed of the petition without expressing any opinion on merits and observed that it is open for the petitioner (i.e. respondent No.3 herein) to approach the Tribunal. This Court has also directed that if the petitioner approaches the Tribunal, it will decide the application in accordance with law, at the earliest possible and affording reasonable opportunity of hearing to the respective parties. During the hearing of the said petition, it was orally submitted on behalf of the present respondent No.3 that since the respondent-School authority has not filed any petition challenging the order passed by the authority for absorption of the present respondent No.3-Shri Bharat G. Barot, the inference be drawn that the School management is not having any objection against the absorption of Shri Bharat G. Barot. 3.4 Learned Senior Advocate for the petitioners has submitted that all the forums and at every stage, the school management has opposed the absorption of respondent No.3. It was submitted that the correspondence between the Government authorities and the school management clearly shows that the school management has informed the authority concerned that the order of absorption is totally wrong, not legal, as well as contrary to the order of respondent No.2-DEO dated 31.12.1998, which was in the nature of settlement of disputes when respondent No.3 was otherwise to be removed from the services of N.R. Secondary & Higher Secondary School. It was submitted that several letters written by the management to show that the management of the petitioner-Society has opposed the absorption of respondent No.3. 3.5 Learned Senior Advocate for the petitioners submitted that consequential action taken by the Government authority for not absorbing respondent No.3 as per their order dated 05.08.2004 has deducted the grant of the petitioner-School to the extent of 5% and the said order also is also challenged by way of a separate petition being Special Civil Application No.10694 of 2006 and in that petition, this Court had passed an order on 18.09.2006, which shows that the school management is aggrieved by the order of absorption, otherwise the occasion for filing of the aforesaid petition would not have arisen. 3.6 Finally, it was submitted by learned Senior Advocate Mr.Nanavati, that the petitioners cannot be directed to appoint the respondent mandatorily in absence of any NOC from the Institute. Reliance was placed on the judgment in the case of Atladara Kelvani Mandal & Ors vs State of Gujarat, 2004 (1) G.L.R. 244 . Further, he has invited the attention of this Court that upto 2003-04, the monthly salary of respondent no.3 was received from the State Government and the same was paid to him, which is not denied. It is further submitted that since the respondent no.3, was not reporting and not co-operating for opening of the bank account with the UTI Bank, the office of the respondent No.2-DEO vide letter dated 12.01.2006, intimated the School to send necessary Form-I to close the monthly salary required to be paid to him. The same was complied with by the petitioner management and the service book of the respondent no.3 was already deposited by the School Management with the covering letter dated 29.04.2002. Thus, it is submitted that the respondent no.3 is not paid any salary from N.R. School and N.R.School has not received any amount from the Government. 4. Learned advocate Mr.Sudhanshu Jha appearing on behalf of respondent No.3 placing reliance on affidavit-in-reply dated 16/17.06.2007 submitted that since the respondent management, being the parent institution, as per the Government policy, when the order of absorption is passed and till the employee concerned joins the duty in the other school, the parent institution is duty bound to pay the salary to such employees but in his case since his parent institution did not allow him to resume the duties. It was submitted that respondent No.3 had requested the petitioner-School to allow him to resume the duty and also requested for payment of salary but the said request was not granted and therefore, another Application No.155 of 2004 was filed by respondent No.3 before the Tribunal. He further submitted that he had also filed a petition being Special Civil Application No.11754 of 2002 before this Court challenging non-payment of his salary and also prayed that the respondents may be directed to absorb him in any other school. This Court by an order dated 04.08.2004 directed the District Education Officer to make orders posting respondent No.3 in any other school, where there is workload for his subject, within three days from the date of the order. It was submitted that in response to the aforesaid order, since in M.K.School, there were 02 vacancies of his subjects, respondent No.3 was ordered to be absorbed in the said school by the District Education Officer on 05.08.2004. It was submitted that thereafter, immediately he went to resume the duties on 09.08.2004 and 10.08.2004 but on those days, since the Principal was not present, respondent No.3 was not allowed to resume the duties and thereafter on 11.08.2004 i.e. on Wednesday, respondent No.3 personally met Principal, Shri Dhirajbhai and requested to allow him to join the duties but the Principal informed respondent No.3 that the Principal will have to talk to the management and thereafter he will take appropriate action and that the Principal will inform me in writing about the decision of the management. It was submitted that respondent No.3 wrote a letter to the respondent No.2-DEO on 13.08.2004 informing him about the same. However, even thereafter, respondent No.3 was going to the school but he was not allowed to resume the duties nor he was given anything in writing and ultimately on 20.09.2004, respondent No.3 requested the Management to allow him to resume the duties and respondent No.3 further requested that if they are not ready to absorb him then he may be given in writing. It was submitted that respondent No.3 had also endorsed a copy of the aforesaid letter to the respondent No.2-DEO. It was submitted that respondent No.3 had also endorsed a copy of the aforesaid letter to the respondent No.2-DEO. 4.1 Learned advocate Mr.Jha for respondent No.3 submitted that the respondent No.2-DEO had thereafter by the letters dated 29.09.2004 and 07.03.2005 directed the M.K.School to allow him to resume the duty but the M.K. School did not allow him to resume the duty in spite of the aforesaid clear directions. It was submitted that respondent No.3 wrote a letter on 21.06.2005 to the respondent No.2-DEO informing him that respondent No.3 is not being absorbed by the M.K. School nor respondent No.3 is paid any salary since the date on which respondent No.3 as declared surplus. 4.2 Learned advocate Mr.Jha for further submitted that thereafter also since the petitioner did not comply with the order of the respondent No.2-DEO, who by an order dated 25.04.2006, after giving the full opportunity to comply with the order to the petitioner, ordered for cut in grant. It was submitted by learned advocate Mr.Jha for respondent No.3 that when the order of cut in grant was imposed, only at that juncture, the petitioner challenged the order of the respondent No.2 dated 25.04.2006 by filing Special Civil Application No.10694 of 2006. 4.3 Learned advocate Mr.Jha for respondent No.3 submitted that till 2007, the management has never informed the authorities that as per the subject requirement, respondent No.3 has not required to be accommodated in the school. It was submitted that on the contrary, in the school, there are 15 classes (5 classes each of Std. VIII, IX and X). It was submitted that as per Rule-55.1 of the Grant-in-aid code, a school is required to have 22 teachers as against this, in the petitioner-School there are only 14 regular teachers in the school and, therefore, 8 clear vacancies are there. Learned advocate Mr.Jha submitted that in the subjects of Maths and Science (qualification of the respondent no.3), 5 teachers are required as against which, only 3 teachers are working and therefore, 2 teachers are required in the subjects of Science and Maths and hence, there is a clear vacancy in the school of subjects. It was also submitted that as per Government rules, when there is a vacancy in a school and when there is subject requirement and more particularly when the institution is receiving the grant, they have to comply with the orders of the authorities. It was also submitted that as per Government rules, when there is a vacancy in a school and when there is subject requirement and more particularly when the institution is receiving the grant, they have to comply with the orders of the authorities. 4.4 Learned advocate Mr.Jha for respondent No.3 submitted that in this particular case, though the order is passed way back on 05.08.2004, the management has not at all challenged the said order without any reason and now by obtaining interim relief, rights of respondent No.3 are prejudiced and the application filed by respondent No.3 before the Tribunal for non-implementation of the order has been frustrated. 4.5 Learned advocate Mr.Jha for respondent No.3 submitted that it is totally incorrect that since respondent No.3 had gone out of India and, therefore, he did not open the account with the UTI Bank. It was submitted that as such, way back in the year 2003, respondent No.3 had requested in writing to the management for opening the account in the UTI Bank and also requested that the procedure should be done immediately so that his salaries could be paid but it is the management who had not done the necessary procedure. 4.6 Learned advocate Mr.Jha for respondent No.3 submitted that as per the Government Resolution, the parent institution as well as the institution where the absorption is made, both are responsible. It was submitted that in the instant case, though the name of the salary slip is included up to December 2005 but the actual payment is not made and it is not true that respondent No.3 has not worked but it is the management, who has without any reasons and without challenging the order, not allowed him to resume the duties. It was submitted that under the aforesaid circumstances, the fault is on the part of the management and not on the part of respondent No.3. Learned advocate Mr.Jha submitted that it cannot be said that the salaries are required to be paid by the Government idly since respondent No.3 has not worked. It was submitted that on the contrary, since the management is on fault and the entire salary is required to be paid by the management for the period from December, 2003 till the date of absorption, with interest. It was submitted that on the contrary, since the management is on fault and the entire salary is required to be paid by the management for the period from December, 2003 till the date of absorption, with interest. 4.7 Learned advocate Mr.Jha for respondent No.3 submitted that as per the policy of surplus, if the institution is not complying with the orders of the competent authority, the competent authority is empowered to take action by withholding the grant or imposing cut in grant or even pass the order of de-recognition for noncompliance of the order. It was submitted that respondent No.3 has filed the petition way back in the year 2005 thereafter, looking to the correspondence made with the management as well as the respondent No.2-DEO has passed an order of grant-cut on 25.04.2006 and, therefore, it is totally incorrect to say that the respondent No.2-DEO is favouring respondent No.3. 4.8 The respondent no.3 was declared as surplus as per the compromise/settlement arrived at between the petitioner-management due to the intervention of respondent No.2–DEO. In view of the compromise the disciplinary inquiry initiated against respondent No.3 was dropped and he was declared surplus teacher as per order dated 31.12.1998 passed by respondent No.2-DEO. It was submitted that till the respondent no.3 is absorbed in any other school, it is the responsibility of the parent school to pay the salary to the petitioner. In support of his submission, he has placed reliance on the Division Bench judgment dated 29.04.2011 passed in Special Civil Application no.4094 of 2001 and allied matters (in the case of Shree Krishna Education Trust Sanchalit Shree Krishna & Ors. vs. State of Gujarat & Ors.). 5. I have given my thoughtful consideration to the submissions made by the learned advocates appearing for the respective parties and the documents as pointed out are also perused. 6. The established facts from the record are as under: (a) The N.R.Secondary & Higher Secondary School and the petitioner no.1, Mahendra Kanaiyalal Secondary and Higher Secondary school are run by petitioner no.2, Gujarat Law Society. (b) The respondent no.3 was appointed by the petitioner no.2-Society on 09.06.1989 in N.R.High School. On his request, thereafter, he was allowed to join at N.R.Secondary & Higher Secondary School on 01.04.1994. (c) It appears that there were disputes between the petitioner management and the respondent, which resulted into filing of the applications before the Tribunal. (b) The respondent no.3 was appointed by the petitioner no.2-Society on 09.06.1989 in N.R.High School. On his request, thereafter, he was allowed to join at N.R.Secondary & Higher Secondary School on 01.04.1994. (c) It appears that there were disputes between the petitioner management and the respondent, which resulted into filing of the applications before the Tribunal. Thereafter, vide order dated 31.12.1998 passed by the respondent No.2-DEO, the petitioner was declared surplus in view of the compromise. It is specifically observed in the order that “the petitioner will continue to serve in the school till he is absorbed in other school, and if he absorbed in other school, he has to compulsory report in such school failing which, his protection of surplus will be cancelled as per rules.” (d) Thereafter, the respondent no.2 issued an order dated 05.08.1999 for absorbing the respondent no.3 in Cadila High School, Ahmedabad. The same was cancelled vide order dated 20.08.1999 as per the instructions issued by the Hon'ble Education Minister vide letter dated 10.08.1999. It is stated by the respondent no.3 in his affidavit-in-reply dated 17.06.2007 (Paragraph No.3) that the said order of absorption in the Cadila High School was cancelled at his request. (e) The respondent No.2-DEO, again passed an order directing Asia English School, Thaltej to absorb the respondent no.3. However, Asia English School refused to absorb him, hence the respondent No.2-DEO cancelled the order of absorption on 02.03.2000. (f) Thereafter, the respondent no.3 filed writ petition being Special Civil Application No.11754 of 2002. Vide order dated 04.08.2004, this Court directed the Respondent No.2-DEO to pass order posting the respondent no.3 within 03 days where there is workload for him. (g) By the order dated 05.08.2004 the respondent No.2-DEO ordered the absorption of the respondent no.3 in petitioner no.1-School. (h) The petitioner no.1-School vide communication dated 11.08.2004, informed the respondent No.2-DEO that the management never asked for “No Objection Certificate” for any teachers in subjects of Mathematics and Science”, hence it was not possible to absorb any surplus teacher unless the NOC is given. (i) By the communication dated 12.01.2006, the respondent no.2 asked N.R.High School to immediate stop the salary of the respondent no.3. The original service book was also deposited by the N.R. Secondary & Higher Secondary School before the respondent no.2 on 29.04.2002. (j) It appears that the respondent no.3 went abroad. (i) By the communication dated 12.01.2006, the respondent no.2 asked N.R.High School to immediate stop the salary of the respondent no.3. The original service book was also deposited by the N.R. Secondary & Higher Secondary School before the respondent no.2 on 29.04.2002. (j) It appears that the respondent no.3 went abroad. The petitioners informed the respondent no.2 that they never received the leave application of the respondent no.3. (k) Ultimately, the respondent no.2 vide order dated 25.04.2006 deducted 5% grant of the total grant of the school. The same is challenged in the writ petition being Special Civil Application No.10694 of 2006, wherein by the interim order dated 18.09.2006, this Court directed the respondent no.2 to refund an amount of Rs.40,000/- to the petitioner-School. 7. The issue which falls for deliberation before this Court is whether the respondent no.2 was justified in passing the order directing the petitioners to absorb the respondent no.3 in wake of the order dated 31.12.1998. 8. It is not in dispute that the petitioner was declared as surplus vide order dated 31.12.1998 when he was serving at N.R.High School run by the petitioner no.2-Society. From the record it appears that the respondent no.3 was suspended for misbehaving with the Principal on 05.03.1998. In view of the compromise, the respondent no.2 passed the order dated 31.12.1998 declaring the respondent no.3 as surplus with a condition that he will continue to serve in the school till he is absorbed in other school, and if he absorbed in other school, he has to compulsory report in such school failing which, his protection of surplus will be cancelled as per rules. Thereafter, the respondent no.2 passed the order dated 05.08.1999 for absorbing the respondent no.3 in the Cadila High School. However, the respondent no.3 on his own got the aforesaid order cancelled. The order dated 05.08.1999 reveals that the absorption of the respondent no.3 was cancelled as per the instructions issued by the Hon'ble Education Minister vide letter dated 10.08.1999. The respondent no.3 in his affidavit-in-reply dated 17.06.2007 (Para No.3) has admitted that his absorption in Cadila High School was cancelled at his request. Thus, such an act of the respondent no.3 in getting his order cancelled in such a manner, dis-entitles him the protection of “surplus teacher”. The liability of the petitioner-Society was only extended till the respondent no.3 got his order cancelled. Thus, such an act of the respondent no.3 in getting his order cancelled in such a manner, dis-entitles him the protection of “surplus teacher”. The liability of the petitioner-Society was only extended till the respondent no.3 got his order cancelled. It is not in dispute that the respondent no.3 is paid the salary till September 2003 from N.R. School. 9. The respondent no.2, thereafter passed another order on 29.01.2000 for absorption of respondent no.3 in Asia English School, but the School had refused to absorb him. It is surprising that the respondent No.2-DEO did not take any steps against the school, and instead passed the impugned order dated 05.08.2004, directing the petitioner no.1 to absorb the respondent no.3, which is run by the same the petitioner-Society without there being any NOC from the School. The respondent no.2 has taken shelter under the order dated 04.08.2004 passed by this Court in Special civil application No.11754 0f 2002. A perusal of the order reveals that this Court had only directed the respondent no.2 to post the respondent no.3 where the work was available. This Court had not directed the Respondent no.2 to post the respondent no.3 in the school run by the same Society. The respondent No.2-DEO, instead of posting the respondent no.3 in Asia School or Cadila High School had directed the posting of the respondent no.3 in the petitioner-School which is run by the petitioner2 Society which is running N.R.High School in which the respondent no.2 was declared surplus. Thus, it appears that the respondent No.2-DEO has acted in complete biased manner in order to see that the respondent no.3 is absorbed only in the school which is run by the petitioner– Society. Hence, the impugned order directing the respondent no.3 to be absorbed in petitioner-School is liable to be quashed and set aside. 10. At this stage it will be apposite to refer to the observations made by the coordinate bench of this Court in the case of Atladara Kelvani Mandal (supra). “Similarly, on a true and correct interpretation of Clause-64.3 of the Code, it appears that the DEO, while considering the question for directing absorption in the school, should also ensure that the quality of education in the said school is not put to jeopardy or is not damaged. “Similarly, on a true and correct interpretation of Clause-64.3 of the Code, it appears that the DEO, while considering the question for directing absorption in the school, should also ensure that the quality of education in the said school is not put to jeopardy or is not damaged. It may be that in 'A' school, the standard of other teachers may be high and as a result thereof, the school may be gaining the reputation where good education is being provided and, therefore, the school or the management may be reluctant in absorbing a teacher, who may not be upto the mark or upto the standard of the school. The aforesaid does not mean that the school for extraneous considerations, declines to absorb the teachers or gets any right to refuse absorptions, but, at the same time, it will be the duty of the DEO to consider the said aspects while taking decision for ordering absorption. Similarly, nothing prevents the DEO from giving some choice to the school if more than one surplus teacher or surplus staff is available for absorption. If only one teacher is available, then school has no option but to absorb such teacher but if there is more than one teacher in such subject as surplus, then if such a choice is given to the management, it would encourage a good atmosphere and would rather sub-serve the intention with which Clause64.3 is inserted in the Code, and would also be in the interest of atmosphere of the school and also the relations between the management and the person concerned, who is ordered to be absorbed.” In the instant case, the respondent No.2-DEO was conscious of the fact, that the relationship between the Management and the respondent no.3 was strained. The respondent no.3 was also suspended for the alleged assault on the Principal. There were serious allegations leveled against the respondent no.3 by the Management. Despite, the same the respondent No.2-DEO ordered the respondent no.3 to be absorbed in the school run by the same Management. The respondent no.3 was also suspended for the alleged assault on the Principal. There were serious allegations leveled against the respondent no.3 by the Management. Despite, the same the respondent No.2-DEO ordered the respondent no.3 to be absorbed in the school run by the same Management. The aforenoted observations made by this Court specifically instruct that the respondent No.2-DEO shall while considering the question for directing the absorption, should ensure that the quality of the education in school is not jeopardize or is not damaged since in some school the standard of the teachers may be high where good education is provided and, therefore, the school or the management may be reluctant in absorbing a teacher. The respondent no.2 has not kept in mind the aforesaid facts. The respondent No.2-DEO should have considered the facts that the respondent no.3 had got his absorption cancelled and the other schools have also refused to absorb him. Thus, in wake of such glaring facts, the respondent no.2 was unjustified in imposing the respondent no.3 on the petitioner no.1 school run by the petitioner no.2-Society. 11. Thus, in light of the aforenoted facts the action of the respondent No.2-DEO of passing the order dated 25.04.2006 deducting 5% grant was unwarranted. Significantly, the same is also passed without issuing any notice or opportunity of hearing to the petitioner, hence necessitates directions of being set aside. 12. On the bedrock of the aforesaid observations and analysis the impugned order dated 05.08.2004 (in Special Civil Application No.4998 of 2007) is quashed and set aside. As a sequel, the order dated 25.04.2006 (in Special Civil Application No.10694 of 2006) imposing 5% cut in grant is also set aside. However, it is clarified that it will be open for the respondent No.3-Shri Bharat Gumansinh Barot to file appropriate proceedings claiming his salary from the Respondent authorities by filing appropriate proceedings. 13. The writ petitions succeed. Rule made absolute. 14. Consequently, in view of the order passed in the main writ petition, I.A. No.1 of 2019 in Special Civil Application No.4998 of 2007 seeking directions by respondent No.3 stands disposed of. 15. Registry to place a copy of this order in the connected matter.