JUDGMENT : 1. The present petition is filed by the petitioner - Institution under Article 226 & 227 of the Constitution of India challenging the order dated 8.9.2011/9.9.2011 passed by the Gujarat Secondary Education Tribunal (hereinafter referred to as “the Tribunal” for the sake of brevity) at Ahmedabad in Application No.91 of 2009, whereby the Tribunal has quashed and set aside the order of termination dated 28.4.2009 passed against the respondent No.1 herein. Feeling aggrieved and dissatisfied with the said order passed by the Tribunal, the petitioner – Institution has preferred the present petition with the following prayer : “a) Be pleased to admit this Special Civil Application; b) Be pleased to issue a writ of mandamus or writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside order dated 8.9.2011/9.9.2011 at Annexure A to this petition passed by the Honourable Gujarat Secondary Education Tribunal at Ahmedabad in Application No.91 of 2009 and further be pleased to declare that order of termination dated 28.4.2009 passed against respondent No.1 at Annexure D to this petition is just, proper and legal; c) Pending admission, hearing and final disposal of this petition, be pleased to stay further operation, implementation, execution and enforcement of order dated 8.9.2011/9.9.2011 at Annexure A passed by the Honourable Gujarat Secondary Education Tribunal at Ahmedabad in Application No.91 of 2009; d) Be pleased to award the costs of this petition; e) Be pleased to pass such other and further orders as may be deemed just and proper looking to the facts and circumstances of the case and in the interest of justice.” 2. The brief facts of the present case in nutshell are that, the respondent No.1 herein was appointed as Shikshan Sahayak in the School of petitioner No.2 herein as per the Government policy declared by the Government vide Government Resolution dated 2.7.1999. It is the case of the petitioners that as per the Government Resolution dated 2.7.1999, a teaching staff will be appointed as Shikshan Sahayak for first five years on fixed remuneration of Rs.4,000/- and if the said Shikshan Sahayak completes five years of service satisfactorily, then he/she would be absorbed as Assistant Teacher and would start receiving all benefits which are available to an Assistant Teacher. 2.1 It is further the case of the petitioners that, as the service of the respondent No.1 was not found to the mark and satisfactory, he was communicated adverse remarks and notices were also issuied to him on various occasions dated 11.2.2009, 24.2.2009 and 7.3.2009. The respondent No.1 was also given personal hearing on 13.4.2009 and thereafter, order of termination dated 28.4.2009 was passed terminating the services of the respondent no.1 on the ground that service of the respondent No.1 was not satisfactory. It is further the case of the petitioners that the said order of termination dated 28.4.2009 was challenged by the respondent No.1 by way of filing Application No.91 of 2009 before the Tribunal. 2.2 It is the case of the petitioners that in response to the notice issued by the tribunal, the petitioners had filed two replies dated 17.12.2009 and 1.6.2010 and the Tribunal, after hearing the parties, passed the impugned order dated 8.9.2011/9.9.2011 quashing and setting aside the order of termination dated 28.4.2009 with full backwages and the Tribunal had also observed that it was open for the management to hold a domestic inquiry against the respondent no.1 in accordance with rules. 2.3 Being aggrieved and dissatisfied with the aforesaid order passed by the Tribunal, the petitioners have preferred the present petition. 3. Heard Mr.R.R. Vakil, the learned counsel appearing for the petitioners, Ms.Tejal Vashi, the learned counsel appearing for the respondent No.1 and Ms.Nirali Sarda, the learned AGP appearing for the respondent no.2. 4. Mr.R.R. Vakil, the learned advocate appearing on behalf of the petitioners has submitted that the order passed by the Tribunal is contrary to the provisions of law and against the Government Scheme for appointment of Shikshan Sahayak published vide Government Resolution dated 2.7.1999. He has further submitted that since the respondent No.1 was not a regular employee, the directions under Section 36 of the Gujarat Secondary Education Act, 1972 are not available to him and therefore, it is not required to be complied with. He has also submitted that before terminating the service of the respondent No.1, opportunity of representation as well as opportunity of hearing was given to the respondent No.1 and, therefore, the order passed by the Tribunal is against the settled principles of law. 4.1 Learned advocate Mr.Vakil has referred to and relied upon the judgment dated 06.11.2009 rendered in case of Shankarbhai Mohanbhai Marwadi Vs. 4.1 Learned advocate Mr.Vakil has referred to and relied upon the judgment dated 06.11.2009 rendered in case of Shankarbhai Mohanbhai Marwadi Vs. Principal & 2 others, passed by this Court in Special Civil Application No.7862 of 2009. The relevant observations made in paragraph 4 is reproduced hereunder : “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.” 4.2 Learned advocate Mr.Vakil has also referred to and relied upon the judgment dated 02.05.2016 rendered in case of Prakashkumar G. Pandya Vs. Administrator and Deputy District Officer, Bhanvagar & Ors., reported in [2016] 3 GLR 2388 and submitted that in view of the settled legal position of law that in the case of appointment of Assistant Teacher as per the scheme within five years their appointment was not on permanent basis and therefore, provisions of Section 36 of the Gujarat Secondary Education Act is not applicable in the case of Shikshan Sahayak as the cadre of Shikshan Sahayak is different than the cadre of teacher and therefore, the same are not required to be followed. The relevant observations made in paragraph 11 is reproduced hereunder : “11. The bare reading of the provisions of 36 makes it abundantly clear that the person, who is appointed as head master or teacher of member of non-teaching staff of registered private school cannot be dismissed or removed or reduced in rank nor his services cannot be terminated unless an opportunity of hearing offered to such a person and that such an action is approved in writing by the Board. The proviso to subsection (1) clearly provides that nothing in this subsection shall apply to any person, who appointed for temporary period only. Moreover, subsection 5 provides that any person, who is aggrieved by an order passed under sub clause (b) of subsection 1 may make an appeal to the Education Tribunal within 30 days. The proviso to subsection (1) clearly provides that nothing in this subsection shall apply to any person, who appointed for temporary period only. Moreover, subsection 5 provides that any person, who is aggrieved by an order passed under sub clause (b) of subsection 1 may make an appeal to the Education Tribunal within 30 days. Here, in the present cases, the petitioners were appointed as Vidhyasahayak on probation period of five years and therefore, in my view, the protection of section 36 is not available to the petitioners. Moreover, the petitioners have approached this Court directly without resorting to alternative remedy of approaching the Tribunal. Since the petitions are admitted in the year 2003, the petitioners, in my opinion, cannot be nonsuited on the ground of availability of alternative remedy but in any case since they were appointed as Vidhyasahayak for probation of five years, they are not entitled to seek the protection of section 36.” 4.3 Learned advocate Mr.Vakil has, therefore, prayed that in view of the above settled legal position the impugned order which is under challenge, be quashed and set aside and the order of termination dated 28.4.2009 passed by the petitioner – Institution be confirmed. 5. As against that, Ms.Tejal Vashi, the learned advocate appearing on behalf of the respondent No.1, has contended that since the order passed by the petitioner Institution is without following the due process of law and it is based upon the adverse remarks, which was not communicated to the respondent No.1, the termination of the respondent No.1 is stigmatic and therefore, the petitioner Institution has to follow the provision of Section 36. Learned advocate Ms.Vashi has supported the order passed by the Tribunal and contended that the Tribunal has considered the submissions of the petitioner and after considering the relevant aspects and relying upon the judgment of this Court referred in paragraph 6 of the impugned order, had allowed the application and thereby quashed and set aside the order of termination passed by the petitioner Institution. 5.1 In support of her submissions, learned advocate Ms.Vashi has referred to and relied upon the judgment dated 24.01.2019 in case of Sundergiri Harigiri Goswami Vs. 5.1 In support of her submissions, learned advocate Ms.Vashi has referred to and relied upon the judgment dated 24.01.2019 in case of Sundergiri Harigiri Goswami Vs. Delwada Kelvani Mandal & 2 Ors, passed by this Court in Special Civil Application No.4005 of 2014 and subsequently confirmed by the judgment dated 08.09.2022 passed by the Division Bench of this Court in Letters Patent Appeal No.1355 of 2019. Learned advocate Ms.Vashi has therefore, prayed that the present petition be dismissed in view of the aforesaid orders passed by this Court. 6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. It is required to be noted herein that, at the time of admission, this Court while issuing rule on 21.06.2012, had granted interim relief in favour of the respondent no.1 herein. The order reads as under : “Heard. Rule. Expedited. Ms. Vashi, learned advocate waives service of notice of rule on behalf respondent No.1. By way of interim relief, the impugned award is stayed only qua the direction regarding grant of back wages on condition that the order of reinstatement shall be implemented on or before 01.07.2012.” 6.1 It appears from the record that the respondent No.1 is working with the petitioner Institution since last 12 years and during these 12 years there is no any adverse remarks against the respondent No.1. The respondent No.1 is reinstated by virtue of the interim order passed by this Court and is working with the petitioner Institution since last more than 16 years. Considering the issue now involved in the present petition, the controversy involved is that whether the respondent No.1 is entitled for any backwages or not, if his services is to be continued. So far as the facts of the present case are taken into consideration, the respondent No.1 is working with the petitioner Institution by virtue of the interim order since last more than 16 years. 6.2 Considering all these factual aspects and considering the law laid down by this Court, I am of the opinion that the present petition deserves to be partly allowed with a direction to the petitioner Institution that the respondent No.1 be reinstated in service on regular basis from the period of completion of first five years and to pay regular salary after completion of first five years. After considering the first five years as Assistant Teacher as per the scheme, the respondent No.1 is also entitled to get regular salary and all the consequential benefits and for that, the petitioner Institution is directed to forward the proposal to the education department i.e. for getting approval from the District Education Officer for paying regular salary to the respondent No.1. This exercise is to be carried out by the petitioner Institution within a period of eight weeks from the date of receipt of writ of this order and thereafter, the District Education Officer in turn shall complete the formalities within a period of three months and put the respondent No.1 in regular service and accordingly the salary is to be paid. The order passed by the Tribunal is accordingly modified to the aforesaid extent. 7. For the foregoing reasons, the petition is accordingly partly allowed to the aforesaid extent. The interim order passed by this Court is hereby confirmed. The petitioner Institution is directed to reinstate the respondent No.1 in service. However, so far as the backwages is concerned, no further order is required to be passed. Rule is made absolute to the aforesaid extent.