JUDGMENT : Heard learned advocate Ms.Venu Nanavaty for the petitioner and Mr.Baiju Joshi for the respondents through video conference. 1. Rule, returnable forthwith. Learned advocate Mr.Baiju Joshi waives service of notice of Rule on behalf of the respondents. 2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs : “(A) To admit this petitions; (B) To quash and set aside the impugned judgment and order annexure A so far as it relates to the challenge of the petitioner to his termination of service and to declare that the termination of petitioner's services in June, 1999 is illegal and that the petitioner is entitled to reinstatement with full backwages and continuity of service; (C) To modify the impugned judgment and order annexure A by an appropriate writ, order of direction that the petitioner is entitled to full salaries for the period from 15.12.1986 till May, 1999; (CC) Pending hearing and final disposal of this petition to direct the respondents to reinstate the petitioner on his original post in sanctioned pay scale; (D) Pending hearing and final disposal of this petition to direct the first respondent to calculate the amount of arrears that would be admissible to the petitioner in case he succeeds in this petition and to produce it before this Hon’ble Court; (E) To grant any other and further relief Your Lordship may deem fit and proper in the facts and circumstances of this case.” 3. Brief facts of the case are as under : 3.1. It is the case of the petitioner that the petitioner was appointed as an Assistant Teacher initially on 15.12.1986. According to the petitioner, he was a full time Teacher and was required to take 36 classes/periods in a week in the respondent No.2- School run by the respondent No.1-Trust. 3.2. The petitioner was initially paid Rs.10 per day for a period of three years which was raised to Rs.25 per day from forth year and thereafter, Rs.35 per day. The respondents terminated the services of the petitioner orally with effect from 1st June, 1999. 3.3. The petitioner therefore preferred an application being Application No.273 of 1999 before the Secondary Education Tribunal against his termination from service and against the action of the respondents for not paying the remuneration as per the prescribed scale of remuneration. 3.4. The respondents terminated the services of the petitioner orally with effect from 1st June, 1999. 3.3. The petitioner therefore preferred an application being Application No.273 of 1999 before the Secondary Education Tribunal against his termination from service and against the action of the respondents for not paying the remuneration as per the prescribed scale of remuneration. 3.4. The respondent filed their objections to the maintainability of the application contending that the applicant is neither an employee of the respondent No.2-School nor an employee of the respondent No.1-Trust and as he is not an employee, the application under Section 38 of the Gujarat Secondary Education Act, 1972 (for short ‘the Act, 1972’) is not maintainable. 3.5. The District Education Officer also filed reply indicating that the petitioner was not appointed in accordance with the rules and his name was not on the muster-roll of the School and therefore he was not entitled to any relief. 3.6. The petitioner submitted the documentary evidence before the Tribunal to show that he had worked in the respondent-School by leading oral and documentary evidence by submitting two Certificates dated 07.08.1988 and 21.07.1990 at Ex.A and B issued by one Shri Jayantibhai Gordiya who was the Director in the School at the relevant time. The petitioner also produced Ex.C-a news-cutting which appeared in the news paper. It was also contended by the petitioner that as the petitioner demanded full salary as per the rules, the services of the petitioner was terminated from June, 1999 by the respondents. It is also the case of the petitioner that from August, 2002 for about three months, the petitioner was taken on job in J.P.Parekh School and documents in support thereof were placed at Ex.D before the Tribunal. 3.7. The Tribunal after considering the submissions made on behalf of the parties and after going through the evidence came to the conclusion that the appointment of the applicant in the respondent-School was not made in accordance with the procedure prescribed under Section 35 of the Act, 1972 and therefore, it was held that the petitioner was not entitled for the protection of Section 36 and he had no right to continue on the post of Assistant Teacher. However, the Tribunal held that as per the Certificate issued by the respondent No.2-School, it was not in dispute that the petitioner worked as a full time Assistant Teacher with the respondent No.2- School and by not paying the adequate amount of salary to the petitioner would amount to exploitation which is not permissible. Tribunal therefore on the basis of ‘quantum meruit’ and on the basis of principle of equal pay for equal work held that the petitioner was entitled to the full salaries payable at par with any other Teacher as the petitioner was holding the requisite qualification as required for the appointment of a Teacher and he had worked for full time as a Teacher. 3.8. The Tribunal therefore partly granted the claim of the petitioner for past five years i.e. from the date of filing of the application before the Tribunal in the year 1999 till the Tribunal rendered the decision in the year 2004. 3.9. Being aggrieved by the aforesaid order passed by the Tribunal, the petitioner has preferred this petition with the aforesaid prayers. 4.1. Learned advocate Ms.Nanavati submitted that the Tribunal has given contradictory findings in the impugned order. It was submitted that on one hand the Tribunal has held that the petitioner was not appointed according to the procedure prescribed under Section 35 and on the other hand, the Tribunal has held that the petitioner has worked as full time Teacher from 1986 to 1999 and accordingly, the Tribunal has directed the respondent-School to pay the full salaries as prescribed by the Government for a period of five years from May, 1994 to May, 1999. It was submitted that the Tribunal could not have adopted such contradictory approach by directing the respondent-School to pay full salaries only for five years, but the Tribunal ought to have considered the facts of the case and ought to have held that the petitioner was entitled to full salary from 1986 to 1999 and the petitioner is also entitled to the protection under Section 36 of the Act, 1972 as the services of the petitioner were terminated orally without following the procedure prescribed under provisions of the Act, 1972. 4.2. 4.2. It was further submitted that the Tribunal could not have committed a grave error by holding that the petitioner was not appointed in accordance with the procedure prescribed under Section 35 of the Act, 1972 and thereby, denied the legitimate claim of the petitioner by not granting the protection as provided under Section 36 of the Act, 1972. It was submitted that no reason is given by the Tribunal to hold that the appointment of the petitioner was not in accordance with the prescribed procedure and there is no reason for restricting the award of full salary for five years from 1994 to 1999. It was therefore submitted that the Tribunal has erred in passing the impugned order by directing the respondents to pay the full salary only for five years instead of quashing and setting aside the oral termination of the petitioner. 4.3. Learned advocate Ms.Nanavati further submitted that after passing of the order in the year 2004, the respondents have not paid even the amount awarded by the Tribunal. It was submitted that during the pendency of the petition, number of efforts were made by the petitioner to resolve the issue with the respondent-School but the respondents are adamant and are not ready to pay any amount to the petitioner even as per the order passed by the Tribunal. It was therefore submitted that though the petitioner has rendered the services as an Assistant Teacher from 1986 to 1999 with the respondent-School, the respondents have not bothered to abide by the order passed by the Tribunal in spite of the fact that the respondent did not challenge such order. 4.4. Learned advocate Ms.Nanavati also relied upon the decision rendered by this Court in Special Civil Application No.822 of 1993 (Coram: Hon’ble Mr.Justice J.M.Panchal as his Lordship was then) dated 24th October, 1994 wherein it is held that as no evidence was laid before the Tribunal indicating the appointment of the Teacher to get the post was irregular and therefore the Tribunal cannot come to the conclusion that the protection as provided under Section 36 of the Act, 1972 is not available to such Teacher. 5.1. 5.1. On the other hand, learned advocate Mr.B.J.Trivedi who was appearing prior to hearing scheduled today, had argued the matter at length and on 30th July, 2021, the learned advocate Mr.Trivedi sought time on that day to take instructions from the respondents with regard to the payment to be made to the petitioner as per the order passed by the Tribunal. Matter was therefore adjourned to today for further hearing. 5.2. When the matter is called out today, learned advocate Mr.Trivedi submitted that he has returned the papers to the respondents as respondents were not ready to provide the information sought by the learned advocate. 6.1. Learned advocate Mr.Baiju Joshi therefore sought permission to appear in place of learned advocate Mr.Trivedi, which was granted. 6.2. Learned advocate Mr.Joshi submitted that according to the respondent-School, an amount of approximately Rs.3,26,000/- is payable to the petitioner which is not paid by the respondents. It was submitted that the amount of approximately Rs.3,26,000/- is worked out after considering the payment made by the respondents to the petitioner from 1986 to 1999. 6.3. It was submitted that the respondents are ready and willing to pay such amount if reasonable time is granted to pay such amount. 6.4. Learned advocate Mr.Joshi thereafter tried to argue the matter on merits but as the matter was already argued by the learned advocate Mr.Trivedi on previous dates, learned advocate Mr.Joshi was not permitted to submit any contention on merits of the case. This Court highly deprecates the practice of re-arguing the matter by change of advocate. In such circumstances, learned advocate Mr.Joshi was called upon to submit as to why the amount which was payable by the respondents was not paid to the petitioner for almost 17 years after passing the order of the Tribunal. To this query, learned advocate Mr.Joshi submitted that the order of the Tribunal is required to be executed under the provisions of the Act, 1972 as there is no cross petition for the relief granted to the petitioner. Learned advocate Mr.Joshi further submitted that the petitioner ought to have filed the execution proceedings before the Tribunal. Therefore, according to learned advocate Mr.Joshi unless and until the petitioner file execution petition, respondents were not liable to pay the dues as directed by the Tribunal in the impugned order. 7.1. Learned advocate Mr.Joshi further submitted that the petitioner ought to have filed the execution proceedings before the Tribunal. Therefore, according to learned advocate Mr.Joshi unless and until the petitioner file execution petition, respondents were not liable to pay the dues as directed by the Tribunal in the impugned order. 7.1. On the previous hearing learned advocate Mr.Trivedi had submitted that the Tribunal has rightly came to the conclusion that the petitioner was not appointed by the procedure prescribed under Section 35 of the Act, 1972 in view of the affidavit filed on behalf of the District Education Officer as the District Education Officer also has submitted in the reply filed before the Tribunal fortifying the said fact. 7.2. It was submitted by learned advocate Mr.Trivedi that on an humanitarian ground the Tribunal has directed the respondents to pay the full salary for five years from 1994 to 1999 as it was found by the Tribunal that the petitioner had worked as full time Assistant Teacher from 1986 to 1999 till he was orally terminated by the respondents. 7.3. Learned advocate Mr.Trivedi also relied upon the decision of this Court in case of Harkant G. Bhatt Vs. State of Gujarat in Special Civil Application No. 2463 of 1997 rendered on 27.03.1997 (Coram: Hon’ble Ms. Justice R.M.Doshit as her Ladyship was then) wherein it is held that any Teacher who is appointed contrary to the procedure prescribed under the Act, 1972 such Teacher is not entitled to be continued in the School. It was therefore, submitted that when the petitioner was not entitled to continue in the School, the question of payment of full salary would not arise. 7.4. It was submitted by learned advocate Mr.Trivedi on earlier occasion when the matter was argued at length on 30th July, 2021 to the effect that at the best the respondents are liable to pay the amount which is ordered by the Tribunal towards full salary payable to the petitioner from 1994 to 1999. 8. Having heard the learned advocates for the respective parties including learned advocate Mr.Joshi on limited aspect of payment of dues as per the order of Tribunal, it is not in dispute as found by the Tribunal being fact finding authority on the basis of the oral and documentary evidences that the petitioner had worked as a full time Assistant Teacher from 1986 to 1999. 9. 9. The Tribunal has not recorded any reason much less any cogent reason in support of the finding to the effect that the petitioner was appointed as Assistant Teacher by not following the procedure prescribed under Section 35 of the Act, 1972. On the other hand, respondents also did not lead any evidence to indicate that the appointment of the petitioner was irregular. The services of the petitioner was terminated orally without giving any notice or opportunity of hearing. The respondents ought to have followed the procedure prescribed under Section 36 of the Act, 1972. The respondents however raised the objection before the Tribunal that the petitioner is not entitled to any relief as the action of termination cannot be interfered by the Tribunal on the ground that the petitioner was neither an employee of the School nor the employee of the Trust. 10. Thus, the Tribunal without assigning any reason has held as under : “After taking the complete facts into consideration, I am of the opinion that the appointment of the applicant in the respondent-School was not made in accordance with the procedure prescribed under Section 35 of the Act.” 11. For arriving at above conclusion, the Tribunal has not examined the oral or documentary evidence which was either led by the petitioner or by the respondents. The Tribunal has just recorded the aforesaid conclusion that the appointment of the petitioner is not in accordance with the procedure prescribed under Section 35 of the Act. There is nothing on record except the bare assertion of the respondents and no evidence has been adduced by the respondents to indicate that the appointment of the petitioner was irregular. In such circumstances, the conclusion arrived at by the Tribunal is without any basis and therefore, the petitioner ought to have been granted the protection under Section 36 of the Act, 1972. 12. It is also pertinent to note that the Tribunal after analysis of the documentary and oral evidences adduced by the petitioner has held as under : “8. The contention of the management that the applicant is not entitled for any relief as his appointment is not according to Sec.35 cannot be accepted. It is the duty of the management to appoint a teacher in accordance with the provisions of Sec.35. The contention of the management that the applicant is not entitled for any relief as his appointment is not according to Sec.35 cannot be accepted. It is the duty of the management to appoint a teacher in accordance with the provisions of Sec.35. If the management is negligent in its duties and functions atleast they “cannot be allowed to have the advantage of that situation. In fact, Sec.41 of the G.S.E. Act prohibits the management from appointing a teacher without following the procedure of Sec.35. 9. It is true that in plaint and in Chief the applicant has mentioned that the appointment order was not given to him but in cross-examination he has stated that the appointment order was given and was not in a position to produce the same. This is certainly a contradictory statement and a discrepancy but in view of the total facts of the case, the limited relief which I propose to grant to the applicant cannot be denied on this ground.” 13. Thus, Tribunal has given contradictory finding to the effect that on one hand it was held that appointment of the petitioner is not according to Section 35 and on the other hand it is observed that the contention of the management that the applicant is not entitled for any relief as his appointment is not according to Section 35 cannot be accepted. It was also held that it is the duty of the management to appoint a Teacher according to the provisions of Section 35 and if the management is negligent in its duty and functions at least it cannot be allowed to have the advantage of that situation. Thus, Tribunal by the impugned order has blown hot and cold upon the petitioner by depriving the petitioner of the legitimate protection available under Section 36 of the Act. 14. For ready reference Sections 35 and 36 of the Act, 1972 are reproduced as under : “35. Registered private secondary schools [and registered private higher secondary schools] to have Selection Committees. 14. For ready reference Sections 35 and 36 of the Act, 1972 are reproduced as under : “35. Registered private secondary schools [and registered private higher secondary schools] to have Selection Committees. - (1) For every registered private secondary school [and every registered private higher secondary school] there shall be following two committees, namely: (a) a school staff selection committee for the purpose of recruiting the teaching staff of the school other than the head-master, (b) a special school committee for the purpose of recruiting the headmaster and for the purpose of the initial recruitment of the headmaster and the teaching staff of a school started after the appointed day. (2) The school staff selection committee shall consist of the following members, namely: (i) Two representatives of the management of the school to be nominated by the management. (ii) The headmaster of the school. (iii) In the case of a school the total number of teachers in which is more than six, two teachers to be elected by the teachers of the school from amongst themselves, and in the case of a school the total number of teachers in which is or is less than six, one teacher to be elected by the teachers of the school from amongst themselves; and (iv) One representative of the Board to be nominated by the Board. (3) The special school committee shall consist of the following members, namely: (i) Two representatives of the management of the school to be nominated by the management. (ii) Two representatives of the Board to be nominated by the Board. (4) Subject to the provisions of sub-section (1) of Section 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. (5) The special school committee shall select persons for appointment to the post of headmaster of the school from amongst persons referred to in sub-section (4) or from amongst the teachers in the school: Provided that, for the purpose of such selection, preference shall be given to a senior teacher [serving in the school or schools under the same management], if he is otherwise eligible and suitable. (6) Whenever the persons from amongst whom a teacher or a headmaster is to be selected includes a person who is related to any member of the governing body or other body in charge of the management of the school or to any member of the school-staff selection committee or, as the case may be, the special school committee, the member concerned of such committee, shall disclose the fact of such relationship to the members of the Committee and if any such person is selected by the Committee, his selection shall be subject to approval by an officer of the Board authorised in that behalf. Such approval shall be sought by the Committee within a week from the date of selection of the persons concerned and the authorised officer of the Board shall communicate his decision within fifteen days from the date of receipt of the reference by him. (7) Any appointment of a head-master or a teacher made in contravention of the provisions of this section shall be ineffective. 36. Dismissal, removal and reduction in rank of certain persons. - (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 Clause (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.” 15. In view of the above provisions of the Act, 1972 it emerges that due to fault of the management of the School the petitioner cannot be penalized by not granting the protection under Section 36 of the Act, 1972. In view of the above provisions of the Act, 1972 it emerges that due to fault of the management of the School the petitioner cannot be penalized by not granting the protection under Section 36 of the Act, 1972. The Tribunal as a fact finding authority has come to the conclusion that the petitioner had worked as a full time teacher from 1986 to 1999 with the respondent No.2-School and therefore the Tribunal ought to have granted the protection under Section 36 of the Act and could not have directed the respondents to pay the full salaries at par with other Teachers only for a period of five years from 1994 to 1999. Thus, the Tribunal has committed a grave error in not granting the protection to the petitioner under Section 36 of the Act, 1972. 16. This Court in case of Mahuva Kelavni Sahayak Samaj Vs. Bholabhai B. Parmar and Others in Special Civil Application No.822 of 1993 while dismissing the petition filed by the School management confirming the order passed by the Tribunal has held as under : “The contention that the appointment of respondent no.1 was irregular and therefore, it is not necessary for the petitioner to comply with the requirements of section 36 of Gujarat Secondary Education Act, 1972 has no merit. There is nothing on the record of the petition to indicate that the appointment of respondent no.1 & the post of additional teacher since January 21, 1986 is irregular in any manner. Admittedly, no evidence was led by the petitioner before the Tribunal indicating that the appointment of the respondent no.1 to the post of additional teacher was irregular. Except the bare assertion of the petitioner, no cogent evidence has been adduced by the petitioner to indicate tht the appointment of the respondent no.1 was irregular. Before terminating the service of the respondent no.1 ground that the appointment of respondent no.1 was irregular, the petitioner should have followed the procedure laid down in section 36 of the Gujarat Secondary Education Act. The petitioner has admittedly not followed the procedure iaid down in section 36 of the said Act. The Tribunal was Justified in granting reinstatement to the respondent no.1 in service with immediate effect.” 17. The petitioner has admittedly not followed the procedure iaid down in section 36 of the said Act. The Tribunal was Justified in granting reinstatement to the respondent no.1 in service with immediate effect.” 17. In view of the above decision of this Court, the decision relied upon by the respondent No.2 in case of Harkant G. Bhatt (Supra) would not be applicable as it is found by the Tribunal on facts of this case that the respondents never adduced any cogent evidence to indicate that the appointment of the respondent No.1 was irregular and merely on the basis of the bare assertion by the respondents, the Tribunal could not have arrived at conclusion that the petitioner was not appointed as per the prescribed procedure under Section 35 of the Act, 1972. 18. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order passed by the Tribunal is quashed and set aside. Ideally the matter ought to have been remanded back to the Tribunal but in view of the efflux of time of more than 17 years which has passed after the Tribunal passed the impugned order, it would be futile exercise to remand the matter back to the Tribunal. Tribunal has passed the impugned order after considering the oral and documentary evidences adduced by both the sides and therefore, it is held that the petitioner was entitled to the protection under Section 36 of the Act, 1972 and as the services of the petitioner was orally terminated without following the procedure prescribed under Section 36 of the Act, 1972 the oral termination of the petitioner is also quashed and set aside and the respondents are liable to pay the petitioner the full salary from 1986 to 1999 with continuity in service till the age of superannuation and the service of the petitioner from 1999 till the date of his superannuation would be on notional basis and all retirement benefits which are payable to the petitioner on his superannuation are liable to be calculated by the respondents and to be paid to the petitioner within a period of 12 weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent. No order as to cost.