JUDGMENT : 1. The petitioner, in this petition under Article 226/227 of the Constitution of India has assailed the order dated 06.02.2016 passed by the Gujarat Education Services Tribunal, Ahmedabad in Appeal No. 156/2014 (Old Number 44/2010) wherein the appeal preferred by the petitioner to challenge his termination order dated 26.02.2010 passed by respondent No.1-School. 2. The facts of the case of the petitioner move in a narrow compass. As per the averments made in the petition, the petitioner has the educational qualification of S.S.C. and A.T.D., was appointed as an Assistant Teacher on 12.06.2005 in the respondent No.1-School. 3. He was appointed on probation on fixed salary as drawing teacher. His services came to be terminated by respondent No.1- School by communication dated 26.02.2010. The petitioner challenges his termination in the Gujarat Educational Services Tribunal, Ahmedabad by preferring an Appeal No.156 of 2014 (Old Number 44/2010). The Tribunal, by the impugned order dated 06.05.2016, dismissed the appeal essentially on the ground that the provisions of Section 36(1) of the Gujarat Secondary Education Act, 1972 (“the Act” for short) were not applicable as the petitioner was still a probationer. Aggrieved, the petitioner has assailed the order of the Tribunal in this petition which is essentially under Article 227 of the Constitution of India. 4. In this petition, following substantive prayers are made:- “7. (A) That the honourable Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 6-5-2016 passed by the Tribunal in Appeal No.156 of 2014 (Old No. 44 of 2010). (B) That the honourable court be pleased to issue a writ of certiorati holding that the impugned order dated 6-5-2016 passed by the Tribunal in Appeal No.156 of 2014 (Old No.44 of 2010) is illegal, unjust, perverse and is required to be quashed and set aside and be further pleased to quash the impugned termination order dated 31- 03-2010.” 5. I have heard Mr. N.D. Gohil, learned advocate for the petitioner, Mr. Vilas G. Goswamy, learned advocate for respondent Nos. 1 & 2 and Ms. Asmita Patel, learned AGP for respondent No.3. 6. Mr. I have heard Mr. N.D. Gohil, learned advocate for the petitioner, Mr. Vilas G. Goswamy, learned advocate for respondent Nos. 1 & 2 and Ms. Asmita Patel, learned AGP for respondent No.3. 6. Mr. Gohil, learned advocate for the petitioner vehemently submitted that in view of the provisions of Regulation 22 of the Secondary Education Regulations 1974, the appointment of a Head Master, Teacher or member of non-teaching staff is on probation for a period of 5 years. According to his submission, the impugned termination order was passed by the respondent No.1-School barely before the petitioner was about to complete 5 years of services as a teacher. He, therefore, submits that the petitioner had already completed his probation period when the termination order came to be passed. It is his further submission that as the petitioner had completed his probation, his services could not have been terminated in view of section 36 of the Gujarat Secondary and Higher Secondary Education Act, 1976 without giving reasonable opportunity of showing of cause against the action of termination. He further submitted that the impugned termination order is not signed by the Principal of the respondent No.1-School who is not an appointing authority. It is his further submission that the impugned termination order is not signed by the authorized representative of the respondent No.1-School, and therefore, it is bad in law. It is his further submission that para-wise remarks submitted by the respondent No.3. It was stated that the termination of the petitioner is without following the procedure as per rules and no proposal was made to the respondent No.3. He also submitted that the services rendered by the petitioner as a teacher were found to be satisfactory inasmuch as the result of subject which the petitioner was teaching was 100%. He, therefore, submitted that the termination of the petitioner is complete violation of Section 36 of the Education Act. In support of his submission, he has relied upon unreported decision of this Court dated 26.08.2015 passed in Special Civil Application No.7099 of 2002 Nutaan Kelvani Trust v. Govindram H. Joshi and others. He, therefore, submitted that the termination of the petitioner is complete violation of Section 36 of the Education Act. In support of his submission, he has relied upon unreported decision of this Court dated 26.08.2015 passed in Special Civil Application No.7099 of 2002 Nutaan Kelvani Trust v. Govindram H. Joshi and others. He has also relied upon the decision of this Court in the case of Director, Lok Bharti and another v. Mukeshbhai C. Tanna & Others reported in 2003 (2) GLH 55 and the decision of the Supreme Court in the case of V.P. Ahuja v. State of Punjab and Others reported in (2000) 3 SCC 239 to submit that the termination of services of a probationer on the ground of proved incompetence is a stigmatic order which cannot be passed without affording an opportunity to defend. He, therefore, urged that the impugned order of the Tribunal as well as the impugned termination order may be set aside and the petitioner may be reinstated as a teacher in the respondent No.1-School. 7. Mr. Goswamy, learned advocate for the respondent Nos. 1 & 2 has supported the impugned order of Tribunal. He submitted that the petitioner was appointed as Vidya Sahayak in the respondent No.1-School under a scheme floated by the State Government vide G.R. dated 02.07.1999. He submitted that as per the scheme of Vidya Sahayak, the petitioner was appointed as a teacher on contractual basis for fixed period of 5 years on payment of honorarium. He submitted that upon completion of 5 years, the petitioner was to be appointed as assistant teacher on regular scale if his performance was found to be satisfactory. He submitted that the provisions of grant-in-aid code and the Gujarat Secondary and Higher Secondary Education Act, 1972 are not applicable to the teachers appointed on contractual basis under the Vidya Sahayak scheme. He, therefore, submitted that the Tribunal has not committed any mistake dismissing the appeal of the petitioner and upholding the termination. He has relied upon unreported decision of this Court dated 06.011.2009 passed in Special Civil Application No.7862 of 2009, Shankarbhai Mohanbhai Marwadi v. Principal and others, wherein, it is held that Shikhshan Sahayak is on a probation period of 5 years and until and unless such probation period is satisfactorily completed and as a teacher is absorb in a regular cadre. The provisions of Section 36 of Secondary Education is not applicable. He has also relied upon the decision of this Court in the case of Prakashkumar G. Pandya v. Administrator & Deputy District Officer reported in 2016(0) AIJEL-HC-235549 and in the case of Jayeshkumar Pitambarbhai Patel v. Director General reported in 2019(0) AIJEL-HC-240730 to buttress his submission. He, therefore, submits that in exercise of powers under Article 227 of the Constitution of India, this Court may not interfere with the impugned order of the Tribunal. 8. Ms. Asmita Patel, learned AGP for the respondent No.3 has adopted the arguments of Mr. Goswamy, learned advocate for respondent Nos. 1 & 2. She submits that since the petitioner was outside the cadre of regular teacher, the provisions of Section 36 of the Secondary Education Act were not attracted and applicable. She submits that the Tribunal has given cogent reasons to support the conclusion that Section 36 of the Secondary Education Act is not attracted in the facts of the present case. She further submits that the decision of this Court in the case of Nutaan Kelvani Trust (supra) on which the learned advocate for the petitioner has placed heavy reliance is of no avail to the petitioner inasmuch as the contentions raised on behalf of the management in the said petition as regards the applicability of Section 36 of the Secondary Education Act is not considered by the Court and has not expressed any opinion thereon without curtailing of rights of the either side and getting such rights for both the parties are open to be adopted in appropriate proceedings. It is further submitted that LPA against the said decision is still pending in the division bench of this Court, and therefore, also the decision of the learned single Judge cannot be said to have attained a finality. She, therefore, urges that the petition may be dismissed. 9. It is undisputed fact that the petitioner was appointed as a Vidyasahayak on 12.06.2005 under the Vidyasahayak Scheme floated by the Government under 02.07.1999 Resolution. The scheme of Vidyasahayak clearly contemplates that the appointment of Shikshan Sahayak is to be made as per the prevalent recruitment rules initially on a contractual basis for 5 years and during this period of 5 years an honorarium was to be paid on condition of rendering satisfactory services. The scheme of Vidyasahayak clearly contemplates that the appointment of Shikshan Sahayak is to be made as per the prevalent recruitment rules initially on a contractual basis for 5 years and during this period of 5 years an honorarium was to be paid on condition of rendering satisfactory services. After the satisfactorily completion of 5 years the Shikshan Sahayak so appointed was to be absorbed in the cadre of teacher, and thereafter, he would become eligible to receive all benefits as are available to an employee/teacher serving in the regular cadre. Indisputably, when the services of the petitioner came to be terminated on 26.02.2010, the petitioner had not completed 5 years of services. 10. The provisions of Section 36 of Gujarat Secondary Education Act made for the protection of teacher working in the regular cadre and since the petitioner was working as a Vidyasahayak on contractual basis of 5 years, he cannot said to be working as assistant teacher in the respondent No.1-School which would entitle him to the protection as envisaged under Section 36 of the Secondary Education Act. 11. This Court in the case of Shankarbhai Mohanbhai Marwadi (Supra) has held as under in paragraph Nos. 4 & 5:- “4. Having considered the above, it appears that as per the scheme of the State Government dated 02.07.1999, copy whereof is produced at Annexure-G with the further affidavit filed on behalf of the petitioner, Shikshan Sahayaks are to be paid honorarium until the period of 5 years and upon the satisfactory services they are to be absorbed in the regular cadre. Therefore, when the petitioner was outside the regular cadre, the provisions of Section 36 of the Act would not have any applicability, therefore the said contention cannot be accepted. 5. So far as the second contention is concerned, even if it is considered for the sake of examination that the petitioner could be termed at par with the probationer then also during the period of probation, if there is unsatisfactory services, it is open to the employer to terminate the services. Perusal of the order shows that it is on account of certain repeated complaints in respect to the discharge of the duties by the petitioner, the petitioner is relieved from the services. Perusal of the order shows that it is on account of certain repeated complaints in respect to the discharge of the duties by the petitioner, the petitioner is relieved from the services. It deserves to be recorded that while judging the performance of a person on probation there may be various yardsticks including his performance for education, his behaviour with the students, his behaviour with the Principal and other Teachers and also the behaviour with the management. It may be that the complaints might have been made for the performance of the petitioner but if the management has found that the overall working of the petitioner cannot be said to be satisfactory and the services terminated, such an order cannot be said to be stigmatic as sought to be canvassed by the learned counsel for the petitioner.” 12. A similar view is taken by this Court in subsequent two decisions in the case of Prakashkumar G. Pandya (supra) and Jayeshkumar Pitambarbhai Patel (supra). 13. It appears that in the present case also the performance of the petitioner was not found to be satisfactory, and therefore, many show cause notices were given to him calling upon him to improve his performance. It emerges from the impugned order of the Tribunal that the petitioner had given assurance to the respondent No.1-School that he would make endeavor to improve his performance. Since there was no improvement in the performance, the impugned termination order was passed by the respondent No.1-School. Considering the tenor of the termination order, I am of the view that the same cannot be dubbed as stigmatic in any manner, and therefore, the findings of the Tribunal in the facts of the present case the provisions of Section 36(1) of the Gujarat Secondary Education Act are not attracted and cannot be said to be erroneous or illegal. The reliance on the decision of this Court in the case of Director, Lok Bharti (supra) and the decision of the Supreme Court in the case of V.P. Ahuja (supra) are of no avail to the petitioner. The reliance on the decision of this Court in the case of Director, Lok Bharti (supra) and the decision of the Supreme Court in the case of V.P. Ahuja (supra) are of no avail to the petitioner. The above decisions are in respect of the persons recruited in the regular cadre on probation whereas in the present case the petitioner was appointed as a Vidhyasahayak on contractual basis of 5 years on payment of honorarium, and therefore, the status of the petitioner cannot be equated with a probationer who is appointed on a regular basis. 14. As regards the applicability of Section 36 or any other provision the contentions on the basis of resolution were raised. In the case of Nutaan Kelvani Trust (supra), paragraph No.36 reads as under:- “36. The petitioner trust herein has also urged that terms of services in case of the present respondent No.1 provided that he could be terminated without any notice and without any cause being assigned and he could not claim protection of either section 36 or any other provision. For which, it has sought to rely upon the Government Resolution dated 28.01.2008 of the Education Department of the Government of Gujarat for appointment of Class-III and Class-IV category. One of the conditions imposed is that the appointee employee would not be able to get benefit as that of permanent employees and one of the conditions stipulates that during the period of five years, if there is no satisfactory performance, the services of such teacher could be terminated without issuance of notice. It is the say of respondent No.1 that Government Resolution dated 15.02.2005 and the one passed on 28.01.2008 had retained the terms and conditions of earlier resolution dated 2.7.1999 and for the person who is appointed prior to 16.02.2006, the subsequent resolution of 28.01.2008 would not be applicable in his case and appointment of his (respondent No.1) being of the year 2000, termination without the notice would not be permissible and his case would be governed by general conditions incorporated in the Act. Resolution dated 28.01.2008 in categorical terms holds that all the conditons, except those mentioned in this resolution, would apply from resolution dated 2.7.1999 for all those Shikshan Sahayaks appointed after 16.02.2006.” 15. This Court in paragraph No.37 held that the contention does not have substance and without adjudicating the issue raised in paragraph No.36. Resolution dated 28.01.2008 in categorical terms holds that all the conditons, except those mentioned in this resolution, would apply from resolution dated 2.7.1999 for all those Shikshan Sahayaks appointed after 16.02.2006.” 15. This Court in paragraph No.37 held that the contention does not have substance and without adjudicating the issue raised in paragraph No.36. It was held as under in paragraph No.37:- “37. Contention raised by respondent No.1 does have substance. However, without delving in this aspect and without curtailing the rights of the either side and keeping such rights for both the parties open to be agitated in appropriate proceedings, this Court chooses not to interfere by way of writ jurisdiction in the order passed by the Tribunal.” 16. It is thus eminently clear that this Court has not recorded any findings as regards the applicability of the protection available to Vidyasahayak under Section 36 of the Act and it is left open to be agitated in appropriate proceedings. Considering the facts of the said case without deciding the contentions raised which are extracted in paragraph No.36, the Court has dismissed the petition. I am, therefore, of the view that the decisions cannot come to the rescue of the petition. 17. For the foregoing reasons, petition lacks merits and is hereby dismissed.