JUDGMENT : 1. Heard Ms.Mamta Vyas, learned advocate appearing for the petitioner, Mr.Jayraj Chauhan, learned advocate appearing for the respondent no.1 and Ms.Suman Motla, learned A.G.P. appearing for the respondent nos.2 and 3. 2. By way of the present petition, the petitioner herein has challenged the order dated 24.01.2002 passed by the District Education Officer, granting approval of appointment of the petitioner as Shikshan Sahayak qua the fixed salary of Rs.4,000/- as also, the oral judgment dated 07.09.2010/08.09.2010 passed by the learned Gujarat Secondary Education Tribunal in Application No.115 of 2009, which is duly produced at page 11 and has prayed for the following reliefs:- “(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dtd. 24.1.2002 passed by the District Education Officer granting the approval to the appointment of the petitioner as “Shikshan Sahayak” qua the fixed salary of Rs.4,000/- as also the oral judgment dated 7.9.2010/8.9.2010 passed by the Secondary Education Tribunal in Application No.115 of 2009 and further be pleased to direct the respondents to pay the arrears of pay of salary in the regular pay scale with effect from the date of his appointment. (B) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to call for the record and proceedings in the Application No.115/2009 from the Tribunal; (C) Be pleased to pass such other and further relief as may be deemed fit by Your Lordships in the facts and circumstances of the case and in the interest of justice.” 3. It is the case of the petitioner that the respondent no.1 is a grant-in-aid registered private secondary school. The respondent no.2 herein granted no objection certificate to the respondent no.1 for initiating the process of selection/recruitment for appointment of the teacher with qualification of B.A. on the reserved post of Scheduled Tribes category. Despite of three attempts made by the respondent no.1, the respondent no.1 did not receive any application from S.T. candidate. As per the norms, the respondent no.2 issued another no objection certificate on 08.04.1999 converting the post from reservation for S.T. category to Baxi Panch category. The respondent no.1 issued advertisement on 21.04.1999 in ‘Jan Satta’ newspaper. The petitioner herein, possessing requisite qualifications and belonging to the reserved category, registered the candidature on 26.04.1999. As per the norms, the respondent no.2 issued another no objection certificate on 08.04.1999 converting the post from reservation for S.T. category to Baxi Panch category. The respondent no.1 issued advertisement on 21.04.1999 in ‘Jan Satta’ newspaper. The petitioner herein, possessing requisite qualifications and belonging to the reserved category, registered the candidature on 26.04.1999. Interviews were held on 17.05.1999 wherein, the petitioner came to be selected. The management appears to have sent proposal to the D.E.O., seeking approval for the purpose of grant. On 03.07.1999, the D.E.O. declined to grant approval on the ground that the post was not available in the school in view of the 20% ban on recruitment by the respondent – State. Thereafter, there were some correspondences between the respondent no.1 and the respondent no.2 and by order dated 24.01.2002, the D.E.O. i.e. the respondent no.2, accorded the approval to appoint the petitioner herein as Shikshan Sahayak on fixed pay of Rs.4000/- per month in view of the new grant-policy of the government contained in the government resolution dated 02.07.1999. 3.1. The petitioner herein approached the learned tribunal by preferring Application No.332 of 2002, raising a grievance that the process of appointment was initiated and completed prior to the issuance of the government resolution dated 02.07.1999 and that, the respondent no.2 ought to have approved the appointment as Assistant Teacher in the regular pay-scale instead of giving approval as Shikshan Sahayak from subsequent date of 01.02.2002. The said application came to be rejected by the learned tribunal vide order dated 01.09.2004 on the ground that no order was passed by the management. The petitioner thereafter, made representation to the respondents on 05.05.2008 and in absence of any response from the respondent no.1 - management, the petitioner was constrained to approach the learned tribunal by preferring Application No.115 of 2009. 4. The petitioner thereafter, made representation to the respondents on 05.05.2008 and in absence of any response from the respondent no.1 - management, the petitioner was constrained to approach the learned tribunal by preferring Application No.115 of 2009. 4. Ms.Mamta Vyas, learned advocate for the petitioner submitted that the impugned order dated 01.09.2004 passed by the learned tribunal is required to be interfered with mainly on the ground that while the learned tribunal has accepted all the contentions raised by the petitioner herein, the prayers, as prayed for, by the petitioner stood rejected on the ground that the petitioner would have fallen in category ‘A’ as the process of selection appeared to have been concluded prior to the issuance of the government resolution dated 02.07.1999 but, because of the ban imposed by government resolution dated 09.09.1998, the said benefit cannot be extended to the petitioner herein as the petitioner falls in Category – ‘B’. It is submitted that the aforesaid issue is no longer res-integra. Reliance is placed on the order dated 31.07.2001 passed by this Court in Special Civil Application No.1356 of 2001 wherein, the subject matter for consideration was the government resolution dated 30.11.2000, which was quashed and the respondent – State was directed that the financial cut, economy measure or austerity measure should not be made applicable to the Educational Institutions, especially for the purpose of recruitment of teachers in the educational institutions. 5. Placing reliance on the aforesaid, it is submitted that in view of the said order passed in Special Civil Application No.1356 of 2001, the impugned order is required to be interfered with. Reliance is also placed on the order dated 20.06.2008 passed by the learned tribunal in the other application being Application No.244 of 2007, which is duly placed on record at page 47. It is submitted that in the identical fact situation, it was held that if the selection process is concluded prior to the issuance of the government resolution dated 02.07.1999 that, the appointment was required to be considered as regular appointment. 6. Reliance is also placed on the order dated 29.11.2001 passed in Application No.439 of 2000 wherein, reliance was placed on the government resolution dated 31.07.2001 and the said government resolution was quashed and set aside and in view thereof, the applicant in the said application, was entitled to the pay-scale of a regular employee. 6. Reliance is also placed on the order dated 29.11.2001 passed in Application No.439 of 2000 wherein, reliance was placed on the government resolution dated 31.07.2001 and the said government resolution was quashed and set aside and in view thereof, the applicant in the said application, was entitled to the pay-scale of a regular employee. The aforesaid was also the subject matter of challenge before this Court by filing Special Civil Application No.3221 of 2005 wherein, by order dated 11.05.2009, the said petition was allowed and the respondent no.2 was directed to take appropriate decision with respect to the payment of regular salary to the petitioner from the date of his appointment in light of the decision, which was rendered by the learned tribunal on 20.06.2008 in Application No.244 of 2007 and pay the arrears upon making necessary calculation within a period of two months. It is submitted that the aforesaid issue is no longer res-integra wherein, it is held that such ban on the appointments is held to be unjust and illegal. 6.1. Placing reliance on the aforesaid, it is submitted that the impugned order is required to be interfered with on the aforesaid ground alone because the application stood rejected, placing reliance on the government resolution dated 09.09.1998. 6.2. It is submitted that it is pertinent to note that the no objection certificate was granted for the post of Assistant Teacher as per the old policy and on that basis, the advertisement was published in the news papers for the post of Assistant Teacher and therefore, the new policy which has subsequently come into effect by government resolution dated 02.07.1999 of fixed salary is not applicable in the case of the petitioner. 6.3. It is submitted that once the no objection certificate and the advertisement clearly stipulated for the post of Assistant Teacher then the appointment order ought not to have been issued in the fixed salary. Further, the process was completed before 02.07.1999 and sent it to the District Education Officer for approval on 17.05.1999 and, therefore, the subsequent policy of the government dated 02.07.1999 could not have been made applicable to the facts of the present case and the petitioner is entitled to get the salary in the regular pay scale of Assistant Teacher from the date of appointment. 6.4. 6.4. It is submitted that the learned Tribunal has not properly appreciated the judgments cited by the learned Tribunal wherein, in the similar cases, when the process is already over before 02.07.1999, the learned Tribunal itself has directed the government to pay the regular salary from the date of appointment of the Assistant Teacher and even the arrears was also paid. 6.5. It is submitted that it is pertinent to note that at present, the petitioner is working as principal in the respondent school from 11.10.2008. 7. Ms.Suman Motla, learned A.G.P. submitted that the prayers, as prayed for, may not be granted. Reliance is placed on the affidavit-in-reply filed by the respondent – State and it is submitted that in view of the government resolutions dated 09.09.1998 and 12.06.2000, the proposal sent by the school on 12.06.2000 was after 09.09.1998 and in view thereof, the appointment could not have been sanctioned however, the petitioner was lucky to have procured appointment in view of the subsequent policy dated 30.01.2000. It is submitted that as per the policy dated 02.07.1999, the appointment could only have been made on the fixed scale basis, which is rightly issued by the respondent no.2 on 24.01.2002, relying on the government resolution dated 02.07.1999 and granting approval as Shikshan Sahayak. 8. Mr.Jayraj Chauhan, learned advocate for the respondent no.1 submitted that the said post in question was not sanctioned in view of the government resolution dated 09.09.1998, which was in force. 9. It is apposite to refer to the findings recorded by the learned Tribunal vide judgment dated 07.09.2010/08.09.2010 passed in Application No.115 of 2009, which read as under:- “It may be noted that subsequently govt. appears to have reconsidered the position and vide G.R. dt.31.8.01 the ban was lifted and thereafter the approvals were accorded to the cases from the said date and naturally at the time the new policy was prevailing, the approval was given as per the G.R. dt.2.7.99. In the instant case also the same is the situation. The D.E.O. has accorded approval to the appointment of the applicant as Shikshan Sahayak vide his order dt.24.1.02 and that was on the basis of management’s proposal dt.12.6.2000. It, thus, become quite clear that the case of the applicant falls within the second category and, therefore, it is wrong for him to draw parallel with other cases which fall in Category-A as mentioned above. It, thus, become quite clear that the case of the applicant falls within the second category and, therefore, it is wrong for him to draw parallel with other cases which fall in Category-A as mentioned above. In view of this discussion and also in view of the fact that the case of the applicant is not being disallowed on the ground of delay, two judgments cited by the applicant i.e. in the case of Basic Shiksha Parishad Vs. Sugna Devi and A Satheesan and Ors. Vs. Union of India donot apply to the present situation. The third judgment cited by the applicant in the cae of Saijpur Bogha Nagar Palika Octroi Karmachari Mandal Vs. Ahmedabad Municipal Corpn. in the facts of the case is of no avail to the applicant. 8. It may bear repetition that the cae of the applicant would have fallen in A-category as the process of selection appears to have been concluded prior to the issuance of G.R. dt.2.7.99, but due to the fact that the said appointment was found to be on the post banned by the G.R. dt.9.9.98, the applicant does not get the benefit. His case, therefore, falls in the Category-B. In the cases where the process of recruitment was concluded prior to the issuance of G.R. dt.2.7.99 and still, the approval was not accorded only on the basis of G.R. dt.2.7.99 and not for any other reasons, this Tribunal has granted them the benefit as mentioned above. However, the cases where the appointments were made on the posts which were falling in 20% ban imposed by the govt. vide G.R. dt.9.9.98 irrespective of the fact that the process in their case was completed prior to 2.7.99, they were not extended the same benefit that is for want of the post at the time of recruitment. Since the govt. has given relaxation by lifting the ban in the year 2001 the appointments were approved but then new scheme and the policy was made applicable to such cases. It is really unfortunate that the case of the applicant falls within this second category and, therefore, reliefs claimed by him cannot be granted. I am, therefore, not inclined to accept this application. In the result and for the reasons mentioned in the foregoing paragraphs, this application is disallowed. No order as to costs.” 10. It is really unfortunate that the case of the applicant falls within this second category and, therefore, reliefs claimed by him cannot be granted. I am, therefore, not inclined to accept this application. In the result and for the reasons mentioned in the foregoing paragraphs, this application is disallowed. No order as to costs.” 10. While passing the impugned order, as referred above, all the other contentions raised by the petitioner were considered however, the application stood rejected, relying on 20% post ban as per the government resolution dated 09.09.1998 and also the resolution dated 02.07.1999, which provided for appointment, which is a new policy promulgated by the respondent – State for appointment of Shikshan Sahayak, Vahivati Sahayak and Saathi Sahayak in place of Assistant Teacher, clerical staff and peons respectively. ANALYSIS 11. Having heard the learned advocates appearing for the respective parties and having considered the impugned judgment dated 07.09.2010/08.09.2010 passed by the learned tribunal in Application No.115 of 2009, as referred above and the documents that are produced on record, the following emerge:- (a) The petitioner herein, pursuant to the advertisement issued for the post of Assistant Teacher, applied in Scheduled Tribe category on 26.04.1999. (b) Interviews were held on 17.05.1999 and the petitioner was found suitable and selected at sr.no.1. (c) proposal was sent to the District Education Officer seeking approval. (d) The said approval was declined on 03.07.1999 on the ground that the post was not available in view of the 20% ban on recruitment. The said government resolution dated 09.09.1998 is stated to be withdrawn in the year 2001. (e) The post ban having been lifted, the management’s proposal dated 12.06.2000 was considered and on 24.01.2002, the order was passed for appointment of the petitioner as Shikshan Sahayak on fixed pay of Rs.4000/- per month applying the new grant-policy as per the government resolution dated 02.07.1999 for appointment of Shikshan Sahayak, Vahivati Sahayak and Saathi Sahayak in place of Assistant Teacher, clerical staff and peons respectively. 12. In the opinion of this Court, the petitioner having been selected on 17.05.1999 pursuant to the advertisement issued for regular appointment for the post of teacher prior to the government resolution dated 02.07.1999 and lift of post ban in the year 2001, the petitioner herein is entitled to be considered for grant of the pay-scale of the regular teacher in accordance with the advertisement dated 26.04.1999. In view thereof, in the opinion of this Court, the learned tribunal has erred in rejecting the application of the petitioner wherein, the petitioner prayed for the entitlement of the regular salary in the grade of Rs.5000-8000 from the date of appointment i.e. 03.07.1999. 13. It is apposite to refer to the ratio laid down by the Hon’ble Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others reported in AIR 1999 SC 22 . Paragraphs 14 and 15 of the said judgment, read as under:- 14.The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” 14. In view of the aforesaid discussion, exercising powers under Article 226 of the Constitution of India, this Court is inclined to pass the following order: 15. The impugned judgment dated 07.09.2010/08.09.2010 passed by the learned tribunal in Application No.115 of 2009 is quashed and set aside. In view of the aforesaid discussion, exercising powers under Article 226 of the Constitution of India, this Court is inclined to pass the following order: 15. The impugned judgment dated 07.09.2010/08.09.2010 passed by the learned tribunal in Application No.115 of 2009 is quashed and set aside. The respondent – authority is directed to consider the case of the petitioner for grant of regular pay-scale in accordance with the advertisement issued on 26.04.1999 pursuant to which, the petitioner is selected on 17.05.1999, which was prior to the issuance of the government resolution dated 02.07.1999 for appointment of Shikshan Sahayak, Vahivati Sahayak and Saathi Sahayak in place of Assistant Teacher, clerical staff and peons respectively and shall pay the arrears after necessary calculation. Further, all the consequential benefits that accrue pursuant to the order passed by this Court, be granted to the petitioner herein. The aforesaid exercise be undertaken within a period of 12 weeks from the date of receipt of this order. 16. Accordingly, the present petition is allowed. Rule is made absolute to the aforesaid extent.