JUDGMENT : 1. Heard learned advocate Mr. M.A. Parekh for the petitioner, learned Assistant Government Pleader Ms. Dhwani Tripathi for respondent nos.1, 3 and 4, learned advocate Mr. Meet Shah for learned advocate Mr. A.D. Oza for respondent no.2 and learned advocate Mr. Subhash Barot for respondent no.5. 2. Having regard to the controversy involved in this petition which is in narrow compass, with the consent of learned advocates appearing for the respective parties, this petition is taken up for final hearing. 3. Rule returnable forthwith, learned AGP Ms. Dhwani R. Tripathi waives service of notice of rule on behalf of respondent nos.1, 3 and 4, learned advocate Mr. Meet Shah waives service of notice of rule on behalf of respondent no.2 and learned advocate Mr. Subhash G. Barot waives service of notice of rule on behalf of respondent no.5. 4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged legality and validity of the impugned order passed by the respondent no.4-District Education Officer, Anand (hereinafter referred to as “DEO”) dated 20.05.2022. 5. The brief facts of the case are as under:- 5.1. The petitioner is a public trust registered under the provisions of the Bombay Public Trusts Act, 1950, the respondent no.5 was appointed as principal of Shri Sardar Patel High School run by the petitioner trust. 5.2. It is the case of the petitioner that at the time of appointment of the respondent no.5 as principal, the entire administration of the Self Finance Primary School run by the petitioner was handed over to the respondent no.5, as per the resolution dated 22.11.2008, passed in meeting of the committee members of the petitioner trust. 5.3. According to the petitioner during the lock-down period from March, 2020 to July, 2021, the respondent no.5 committed serious breach of trust by making financial irregularity as the petitioner trust had given cheques of full salary to each primary teachers but the respondent no.5 after encashing the cheques of the salary had given half of the amount to each teacher and obtained the signature on voucher of full payment of salary and pocketed the remaining half salary. 5.4. 5.4. It is also the case of the petitioner that respondent no.5 principal pocketed the entire salary of four teachers, who had left their jobs but the respondent no.5 by forging false signatures through the clerk committed misappropriation of amount of the salary. 5.5. The petitioner trust therefore issued notice on the respondent no.5 calling for his explanation. However, respondent no.5 submitted casual and vague replies. The petitioner trust thereafter removed respondent no.5 as principal on 28.02.2022 from both the schools. However, by notice dated 05.03.2022, the petitioner trust recalled the removal order and passed an order of suspension of the respondent no.5-principal with effect from 28.02.2022. 5.6. The petitioner trust after issuance of the suspension order of respondent no.5 also sent an intimation by forwarding a copy of the order dated 05.03.2022, to the respondent no.4-DEO. Respondent no.4-DEO, by letter dated 31.03.2022 approved the suspension order passed by the petitioner trust after considering the details thereof. 5.7. The respondent no.4-DEO on receipt of the objections raised by the respondent no.5-principal fixed the hearing on 19.05.2022 and after hearing the representative of the petitioner trust passed an order dated 20.05.2022 cancelling his own approval dated 31.03.2022. 5.8. The petitioner being aggrieved by the order dated 20.05.2022 has preferred this petition for a direction to quash and set aside the order dated 20.05.2022 passed by the respondent no.4-DEO and to confirm the order dated 31.03.2022 with regard to the approval granted to the suspension order dated 05.03.2022, issued by the petitioner trust. The petitioner also prayed for direction to the respondent no.4-DEO to initiate inquiry pursuant to the suspension order dated 05.03.2022 against the respondent no.5-principal as per the order dated 31.03.2022. 5.9. Learned advocate Mr. M.A. Parekh for the petitioner submitted that respondent no.4-DEO could not have recalled his own order dated 31.03.2022 pursuant to the objections raised by the respondent no.5. 5.10. It was submitted that respondent no.4-DEO after scrutinizing each documents regarding the money embezzlement made by the respondent no.5 - principal passed an order dated 31.03.2022 approving the suspension order passed by the petitioner trust. It was further pointed out by the learned advocate Mr. 5.10. It was submitted that respondent no.4-DEO after scrutinizing each documents regarding the money embezzlement made by the respondent no.5 - principal passed an order dated 31.03.2022 approving the suspension order passed by the petitioner trust. It was further pointed out by the learned advocate Mr. Parekh that by order dated 31.03.2022, the respondent no.4-DEO also appointed the inquiry committee to look into the allegations made against respondent no.5 by the petitioner trust under Regulations 27(a) of Schedule 1 of Gujarat Secondary Education Regulations, 1974 (for short “the Regulations, 1974”) as amended upto December 2021. It was therefore submitted that respondent no.4-DEO could not have passed the impugned order on 20.05.2022, ignoring the order dated 31.03.2022 on the ground that the suspension order was passed by the trustees of the petitioner trust whose names are not reflected in Public Trust Register (hereinafter referred to as “PTR”) relying upon the Rule 9.1 of the Grant In Aid Code, 1964. 5.11. Learned advocate Mr. Parekh further submitted that after granting approval of the suspension order, respondent no.4-DEO became functus officio and he had no jurisdiction to pass a fresh order by cancelling the order dated 31.03.2022. 5.12. It was submitted that the respondent no.4-DEO has exceeded his jurisdiction by holding that the Vice President of the petitioner trust was not authorized to pass the suspension order as his name is not recorded in the PTR. 6. On the other hand, learned advocate Mr. Subhash Barot for respondent no.5-principal submitted that, this petition is not maintainable as there is alternative remedy available to the petitioner by filing an appeal before the Commissioner of Schools as per the provisions of Gujarat Secondary and Higher Secondary Education Act, 1972 or before the Gujarat Educational Institutions Service Tribunal as per the provisions of Gujarat Educational Institutions Services Tribunal Act, 2006. It was submitted that respondent no.5 raised an objection before the Commissioner of Schools challenging the authority of Mr. Kamleshbhai Viththalbhai Patel, who has also filed this petition as his name is not appearing in the PTR and the change report filed by the petitioner trust to include the name of Mr. Kamleshbhai Viththalbhai Patel is not approved till date and therefore, respondent no.4-DEO has rightly cancelled the approval letter dated 31.03.2022, as the suspension order was passed by the unauthorized person. Kamleshbhai Viththalbhai Patel is not approved till date and therefore, respondent no.4-DEO has rightly cancelled the approval letter dated 31.03.2022, as the suspension order was passed by the unauthorized person. It was submitted that by passing the impugned order dated 20.05.2022, the respondent no.4-DEO has not reviewed its own order but has passed a fresh order on detailed representation made by the respondent no.5-principal, pursuant to the directions from the Commissioner of Schools to take a fresh decision considering the details supplied by the respondent no.5. It was submitted by learned advocate Mr. Barot that respondent no.4-DEO after considering the representation of the respondent no.5-principal, came to the conclusion that Mr. Kamleshbhai Viththalbhai Patel who has signed the order of suspension is not authorized trustee as his name is not included in the PTR and therefore, the order of suspension was rightly held to be without authority by the respondent no.4-DEO. 7. Learned advocate Mr. Barot thereafter referred to the Rule 9.1 of the Gujarat Grant In Aid Code, 1964, which provides that the petitioner trust was duty bound to give intimation of change in the management to DEO before four months but in the facts of the case, no such intimation was forwarded by the petitioner trust to DEO and no permission was granted by the DEO approving the change in the management of the trust. It was also submitted that as per the provisions of Bombay Public Trusts Act, 1950, the change in management is to be reported to the Charity Commissioner, which is required to be approved, however, though the petitioner trust has filed the change report with the concerned Charity Commissioner, it was not approved by the Charity Commissioner and therefore the suspension order singed by Mr. Kamleshbhai Viththalbhai Patel is without authority. It was therefore submitted that this petition filed by Mr. Kamleshbhai Viththalbhai Patel is without authority. 8. Learned advocate Mr. Barot thereafter referred to following averments in the affidavit in reply of the respondent no.5-principal pertaining to the allegations levelled against him by the petitioner trust:- “8. state that was appointed in Sardar Patel Secondary School run by Vasna (Borsad) Education Trust in the year 2008. I state that said school is grant-in-aid school and is receiving various grants from the government. I state that the trust is also running primary school which is not grant-in-aid institution. state that was appointed in Sardar Patel Secondary School run by Vasna (Borsad) Education Trust in the year 2008. I state that said school is grant-in-aid school and is receiving various grants from the government. I state that the trust is also running primary school which is not grant-in-aid institution. I state that though the management was not authorised to allot any work related to primary school to the present deponent as the appointment of the present deponent was in the secondary school, the school management handed over responsibility of Principal of Primary School to the present deponent in addition to the original responsibility of Principal of Secondary School. I state that I have helped petitioner trust in running primary school voluntarily up to 2013 and thereafter when I requested to grant additional pay or emolument for additional services rendered by me in management of the primary school, I was relieved from the responsibility of primary school run by the petitioner trust. I state that on 22.11.2013, the trust has passed the resolution transferring charge of principal of primary school from present deponent to one Shaktisinh P. Vanad. I state that thereafter the management is taking care of all financial activities of the school. I state that after 2013, was managing the affairs of secondary school only which is grant-in-aid institution. I state that after 2013, I have never interfered with the affairs of the primary school. state that the trustees of petitioner trust were doing some illegal activity of pressurising newly appointed employees to help the trust by gifting computer etc. which was objected by the present deponent. I state that due to said objection and other personal reasons, the trustees were behind the present deponent and were trying to harass the present deponent. I state that as stopped helping petitioner trust in management of primary school on one or other grounds, Mr. Kamleshbhai Viththalbhai Patel and others were trying to interfere with the work of the present deponent as Principal of the school. I state that on 30.9.2021, said Mr. Kamaleshbhai Viththalbhai Patel has given show cause notice to the present deponent which was duly replied by the present deponent on 4.10.2021. 9. I state that again on 4.10.2021, said Mr. Kamleshbhai Viththalbhai Patel addressed communication and asked for explanation regarding so-called complaint dated 16.8.2021 of primary teachers for payment of half salary. I state that on 30.9.2021, said Mr. Kamaleshbhai Viththalbhai Patel has given show cause notice to the present deponent which was duly replied by the present deponent on 4.10.2021. 9. I state that again on 4.10.2021, said Mr. Kamleshbhai Viththalbhai Patel addressed communication and asked for explanation regarding so-called complaint dated 16.8.2021 of primary teachers for payment of half salary. I state that said communication dated 4.10.2021 was replied by the present deponent on 7.10.2021, wherein it was clearly mentioned that he is not responsible for the less payment of salary made to primary teachers during COVID-19 period. 10. I state that the existing school management was not leaving any opportunity to harass the present deponent. I state that on 6.10.2021, the present deponent was directed not to leave premises of the school without giving intimation in writing to the management. To state that have diligently complied by the said direction and have obtained necessary permission whenever have left the premises for official work. 11. I state that by communication dated 9.10.2021, the school management again addressed notice to explain within three days about payment of half salary to primary teachers. I state that by giving or addressing communications, the school management was continuously trying to keep the present deponent under pressure.” 9. Relying upon the above averments, it was submitted that respondent no.5 made detailed representation on 21.03.2022 to the DEO and copy of the same was also sent to the Commissioner of Schools. It was submitted that the order dated 31.03.2022, was passed by the respondent no.4-DEO without giving any opportunity of being heard to the respondent no.5-principal and therefore the said order was also in violation of principles of natural justice. It was submitted that the petitioner trust after suspending respondent no.5-principal, issued show cause notice dated 05.04.2022 making various allegations without annexing any documentary evidence. The respondent no.5-principal replied to the show cause notice on 13.04.2022 and thereafter departmental inquiry was ordered to be initiated keeping the respondent no.5 under suspension. 10. Learned advocate Mr. Barot thereafter referred to and relied upon the inquiry made from the office of the Charity Commissioner by respondent no.5-principal to point out that, when the suspension order was passed by the trustee, who was not authorized as his name is not reflected in the PTR, the suspension order itself is null and void. 10. Learned advocate Mr. Barot thereafter referred to and relied upon the inquiry made from the office of the Charity Commissioner by respondent no.5-principal to point out that, when the suspension order was passed by the trustee, who was not authorized as his name is not reflected in the PTR, the suspension order itself is null and void. After making inquiry with the office of the Charity Commissioner, the respondent no.5, learned about the illegal suspension order passed by the petitioner trust and therefore the request was made to the respondent no.4-DEO to give personal hearing to the respondent no.5-principal as well as the petitioner trust. It was submitted that the petitioner Commissioner of Schools by a communication dated 24.05.2022 directed the respondent no.4-DEO to do the proceedings as per the rules. 11. It was pointed out that the respondent no.4-DEO after issuing the show cause notice to the petitioner trust and the respondent no.5-principal, fixed personal hearing on 19.05.2022 and the impugned order dated 20.05.2022 was passed cancelling the order dated 31.03.2022. It was submitted that pursuant to the impugned order respondent no.5-principal requested the petitioner trust to reinstate him, however, no response was given by the petitioner trust inspite of several communications made by the respondent no.5-principal. It was pointed out that respondent no.4-DEO carried out a rojkam on 15.06.2022, for reinstatement but the petitioner trust refused to comply with the impugned order dated 20.05.2022. It was pointed out by the learned advocate Mr. Barot that respondent no.5-principal has also filed an application before the Gujarat Educational Institution Service Tribunal being Application no.57 of 2022 for the payment of full salary to respondent no.5-principal, pursuant to the impugned order dated 20.05.2022 passed by the DEO. It was therefore submitted that the petitioner trust has committed a breach of the order passed by the DEO by not reinstating the petitioner as principal of the School. It was pointed out by the learned advocate Mr. Barot that DEO has also issued a notice dated 06.07.2022 for cut in admissible grant to the petitioner trust, and order to that effect is also passed by the DEO. It was submitted that to harass the respondent no.5-principal a criminal complaint was also filed by the petitioner trust and statement is also recorded by the Police. 12. In rejoinder, learned advocate Mr. It was submitted that to harass the respondent no.5-principal a criminal complaint was also filed by the petitioner trust and statement is also recorded by the Police. 12. In rejoinder, learned advocate Mr. Parekh submitted that the petition is maintainable under Article 226 of the Constitution of India as respondent no.4-DEO has passed the impugned order dated 20.05.2022 contrary to the provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972 as there is no provision to review his own order. It was submitted that the impugned order passed by the respondent no.4-DEO is therefore nonest and erroneous as the same could not have been passed to cancel his own order granting approval to the order of suspension and appointing the inquiry committee. It was submitted that respondent no.4-DEO, once having approved the suspension order passed by the trust, under Section 36(3) of the Gujarat Secondary And Higher Secondary Education Act, 1972, could not have cancelled the same by the impugned order dated 20.05.2022. It was pointed out by the learned advocate Mr.Parekh that the petitioner trust has unanimously given authority to Mr. Kamleshbhai Viththalbhai Patel for looking after affairs with regard to the trust and the Court related matters. The resolution dated 11.10.2021 was also referred to in this context. It was also pointed out that necessary affidavits are filed before the Charity Commissioner for approval for being appointed as a trustee and whether the suspension order dated 05.03.2022 is passed by the authorized person of the trust or not, could not have been adjudicated upon by the respondent no.4-DEO as the same is beyond the scope of powers conferred upon the DEO, under the provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972. 13. Having heard learned advocates appearing for the respective parties and having considered the material on record with regard to the suspension order passed by the petitioner trust, suspending the respondent no.5-principal and approval granted by the respondent no.4-DEO vide order dated 31.03.2022, under Section 36(3) of the Gujarat Secondary and Higher Secondary Education Act, 1972, it appears that the respondent no.4-DEO could not have again passed an order on 20.05.2022 cancelling the order dated 31.03.2022. 14. The Provisions of Section 36 of the Gujarat Secondary and Higher Secondary Education Act, 1972 reads as under:- “36. 14. The Provisions of Section 36 of the Gujarat Secondary and Higher Secondary Education Act, 1972 reads as under:- “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 [or registered private Higher 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 subsection 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 [or registered private Higher 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.” 15. As per sub-section (3) of Section 36 where the head master is suspended by the manager of the school and an inquiry proposed to be held against him, the same is required to be communicated to an officer authorized in his behalf by the Gujarat Secondary and Higher Secondary Education Board and such suspension shall be subject to rectification by the said officer within a period of 45 days from the date of receipt of the communication by such an officer and if the same is not communicated, such suspension order shall cease to have effect on the expiry of 45 days. In the facts of the case, the petitioner trust communicated the order of suspension to the respondent no.4-DEO, who is an authorized officer under Section 36 (3) of the Act, 1972 which is approved by the respondent no.4-DEO by order dated 31.03.2022. Respondent no.4-DEO, therefore becomes functus officio, so far as granting approval to the suspension order issued by the petitioner trust is concerned. 16. Respondent no.4-DEO could not have thereafter conducted any further proceedings under Section 36(3) of the Act, 1972, by considering the representation of the respondent no.5-principal and conducting the hearing and cancelling the order of approval by issuing a fresh order on the ground that suspension order was not passed by the authorized person of the petitioner trust. The word used under the provisions of sub-section (3) of Section 36 “Manager”, therefore the person who is authorized by the petitioner trust to act as manager of the school and therefore the respondent no.4-DEO has no power, authority or jurisdiction to look into the veracity of the PTR with the Office of the Charity Commissioner. It is not in dispute that Mr. Kamleshbhai Viththalbhai Patel was authorized by the petitioner trust to take decision on behalf of the trust and the school run by it and as such, respondent no.4-DEO could not have cancelled the order granting approval, sitting as an appellate authority by passing the impugned order dated 20.05.2022. 17. In view of the above foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 20.05.2022 passed by the respondent no.4-DEO is quashed and set aside and order dated 31.03.2022 granting an approval for suspension of the respondent no.5 is ordered to be restored. 18. Rule is made absolute to the aforesaid extent. No order as to costs.