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2006 DIGILAW 423 (GUJ)

BARIA KUSUM LAXMANBHAI v. STATE OF GUJARAT

2006-07-18

D.H.WAGHELA

body2006
( 1 ) RULE. Learned counsel for the respondents waive service. By consent of the parties, expressed through their learned advocates, the matter was heard for final disposal today. ( 2 ) INVOKING Articles 14, 16 and 226 of the Constitution, the petitioner has approached this Court with the main prayers to direct respondent No. 3, i. e. District Education Officer, Jamnagar, to grant approval to the appointment of the petitioner pursuant to the interview held on 15. 2. 2006 and to direct respondent No. 4-school to issue appointment order. ( 3 ) THE relevant facts emerging from the record and the affidavits filed on behalf of the parties are that, pursuant to the advertisement dated 29. 9. 2005, the petitioner had received a call for interview for the purpose of selection for appointment to the post of "shikshan sahayak" under respondent No. 4. On the date of interview, i. e. 15. 2. 2006, the petitioner stood second, according to the marking given by the Interview Committee. The candidate who was at serial No. 1 and who is joined as respondent No. 5 herein, did not deposit her original testimonials and the proceedings to that effect were drawn by the members of the selection committee. The petitioner made an application dated 6. 3. 2006 stating that the candidate at serial No. 1, i. e. Respondent No. 5, had refused to deliver the original testimonials and left the place of interview on 15. 2. 2006. Therefore, the petitioner was asked to deposit her original testimonials and she had done so. On account of that, she had missed the interview held on the next day at another school because of the uniform rule of showing original certificates at the time of interview. She apprehended that respondent No. 5 was likely to submit her testimonials afterwards and deprive the petitioner of her opportunity to be appointed. The petitioner has relied upon the clarification dated 07. 01. 2006 issued by the Secondary and Higher Secondary Education Board and addressed to all the District Education Officers wherein it is clarified that, at the time of interview, the selection committee shall have to treat the candidates without original testimonials as "absent". The petitioner has produced on record the receipt issued by the school to signify submission of all the original certificates on 15. 2. 2006 itself. The petitioner has produced on record the receipt issued by the school to signify submission of all the original certificates on 15. 2. 2006 itself. It is after several queries and applications under the Right to Information that the petitioner came to know that respondent No. 5 had resigned with effect from 20. 2. 2006 from her employment under another school in Junagadh and that she was given her original testimonials from that school on 21. 2. 2006. ( 4 ) IT is stated on behalf of respondent No. 4 -school, in the affidavit of its Honorary Secretary, that respondent No. 5 did show the original certificates to the committee members at the time of interview, but thereafter she did not produce the original certificates and had gone away. An endorsement to that effect was made by the committee and another rojkam was also prepared which was also duly signed by all the six members. Thereafter, according to the admission of the clerk of respondent No. 4, namely, Mr. Ashokbhai Bhandari, he had scored off the remarks and endorsement with white ink on the instructions of some "higher-ups". It is categorically stated on oath that when the proposal was forwarded to the District Education Officer for approval, there were no original certificates from respondent No. 5 and such certificates were submitted by her as late as on 27. 2. 2006 for which a receipt was also issued. It is also stated that Mr. Ashokbhai Bhandari had applied white ink and kept the management in dark about obliterating the important bottom-lines in both the proceedings of the selection committee recorded and signed on 15. 2. 2006. It is alleged, on the basis of the diary of the Principal of the school, that Mr. Ashokbhai Bhandari was acting on the instructions from the office of the District Education Officer and the reply of Mr. Ashokbhai Bhandari to her regarding erasure was that he had done that at the instance of Mr. Nimavat who is admittedly the Assistant Education Inspector in the office of the District Education Officer. It is stated that respondent No. 4 school has been taking action against Mr. Ashokbhai Bhandari who had admitted his guilt. Ashokbhai Bhandari to her regarding erasure was that he had done that at the instance of Mr. Nimavat who is admittedly the Assistant Education Inspector in the office of the District Education Officer. It is stated that respondent No. 4 school has been taking action against Mr. Ashokbhai Bhandari who had admitted his guilt. ( 5 ) THE District Education Officer ("d. E. O. " for short) has, in his affidavit-in-reply, stated that the interview and selection was conducted by the selection committee comprising of six members wherein a representative of the Secondary Education Board was also a member. Pursuant to the process of the selection committee, respondent No. 4-school had submitted the proposal to his office for appointment of education assistant. It is stated by him that, in the said proposal, some portion was found to have been scored off with white ink. According to his affidavit, respondent No. 4 had sent another proposal to his office on the very same day, i. e. 15. 2. 2006, inter alia, stating that Dodiya Viraben Manojkumar (respondent No. 5), who stood 1st in the merit list, had not submitted her original certificates and had left the place of interview. Then he had addressed the communication dated 20. 2. 2006 to respondent No. 4-school asking for clarification on certain aspects. After verification of the clarification submitted by respondent No. 4, he had again sought clarification on certain aspects vide letter dated 13. 3. 2006 which was replied by respondent No. 4 by letter dated 17. 3. 2006. It is stated by him that his office cannot grant approval without being satisfied with the clarification sought from respondent No. 4. He has relied upon the guidelines, issued by the Gujarat Secondary Education Board vide its letter dated 21. 1. 2004, to the effect that if the candidate at serial No. 1 did not submit original certificates, the school administration was required to prepare rojkam regarding that before the District Education Officer and only thereafter the candidate at serial No. 1 could be deleted from the merit list. Respondent No. 4 has not followed that procedure, according to him. It is further submitted that respondent No. 5 had approached his office vide her application dated 17. 2. 2006. Respondent No. 4 has not followed that procedure, according to him. It is further submitted that respondent No. 5 had approached his office vide her application dated 17. 2. 2006. It is asserted in the affidavit in para 15 that: "in fact her original certificates fall part of file which was sent by respondent No. 4 for approval to the office of the answering respondent at page No. 133 to 145. The case of respondent No. 4 school that said Viraben had not submitted her original certificates before the selection committee cannot be accepted and the claim of the petitioner therefore for appointment to the post in question also cannot be accepted". ( 6 ) RESPONDENT No. 5 has filed her own affidavit to state that, on 17. 2. 2006, she had come to know that the petitioner had picked up a row against the school authorities for not selecting her and, due to that, the school authorities were under pressure and influence to seek approval in favour of the petitioner. She has admitted that she had resigned from her post on 20. 2. 2006 and she was given her original certificates on 21. 2. 2006. She has stated that she went to respondent No. 4- school on 22. 2. 2006 with the original certificates to be given to them under the advice of the District Education Officer on telephone. However, the Principal of the respondent No. 4- school refused to accept the certificates since respondent No. 4 had not received any instructions to that effect from the District Education Officer. Her statement on oath in para 4 of her affidavit is: "i say that thereafter I had informed the D. E. Office the said fact. That thereafter on 27. 2. 2006, I had again gone to respondent No. 4-school office and on that day, my certificates were accepted by them". It is submitted by her that the instructions dated 7. 1. 2006 addressed to all the District Education Officers are directory and not mandatory and that they were substantially complied by her. It is also claimed by her that she did not know that she was supposed to submit the original certificates on the same day to the school authorities and, therefore, after producing the original certificates before the interview committee on 15. 2. 2006, she had again returned the same on 16. 02. It is also claimed by her that she did not know that she was supposed to submit the original certificates on the same day to the school authorities and, therefore, after producing the original certificates before the interview committee on 15. 2. 2006, she had again returned the same on 16. 02. 2006 to the District Panchayat (under whom she was employed at that time ). ( 7 ) IT is obvious from the above statements made on oath before this Court that the interview held by the duly constituted selection committee were concluded on 15. 2. 2006 after verifying the original testimonials of the eligible candidates without the original testimonials of respondent No. 5 being deposited with or retained by the school. It also could not be denied that, in view of that, the original testimonials of the petitioner were accepted and retained by the school, obviously on account of the provision that the candidate at serial No. 1, i. e. Respondent No. 5, could not be appointed in absence of the original testimonials which were admittedly not retained at the school and taken back by respondent No. 5. ( 8 ) THE Secondary and Higher Secondary Education Board has, vide its letter dated 9. 10. 2003 addressed to all the District Education Officers, conveyed the rules and procedure for selection of staff in registered private secondary schools. The avowed objective of making the rules and prescribing the procedure as articulated in the Resolution No. 25 of 2003 was to bring transparency in recruitment of staff in registered secondary schools of the State. That resolution was made against the backdrop of arbitrary abuse of the marking system prevalent previous to the resolution and the instances of nepotism and malpractices coming to light. Therefore, the D. E. Os were directed to inform all the schools about the new circular which was required to be immediately and strictly applied. The rules and procedure so prescribed required that, immediately after the interview, the school should submit the list of selected candidates to the D. E. O. and required the D. E. O. to approve or disapprove the selection after verifying the documents on the same day. The rules and procedure so prescribed required that, immediately after the interview, the school should submit the list of selected candidates to the D. E. O. and required the D. E. O. to approve or disapprove the selection after verifying the documents on the same day. Clause 18 of the Instructions further required that the candidate at serial No. 1 in the selection list had to be given appointment order on the same day and, if such candidate did not report within a fortnight, the candidate at serial No. 2 had to be appointed. Clarifying these instructions, in the aforesaid letter dated 7. 1. 2006 it was stipulated that only the candidates having original testimonials were to be treated as "present" at the time of interview. And, before that, by the aforesaid instructions dated 21. 1. 2004, special instructions in respect of the selection held in February 2004 were issued, inter alia, instructing that original testimonials had to be recovered by the school from the candidates standing at serial No. 1 in the selection list and such testimonials were to be retained by the school for three months. In case the candidate did not give her original testimonials at the time of appointment, the school, the member of the Board and the District Education Officer had to draw a rojkam to that effect and the name of such candidate had to be deleted from the selection list. ( 9 ) IN view of the admitted fact that respondent No. 5 did not deposit her original testimonials with the school or the selection committee, her name could not have been approved for appointment by the District Education Officer. Therefore, by operation of the rules and instructions about which there is no dispute, the petitioner was legally entitled to be appointed on 15. 2. 2006 and respondent No. 3 had no reason to refuse or withhold approval of such appointment. However, the proceedings have taken a curious turn after the file was submitted to respondent No. 3 for approval. ( 10 ) RESPONDENT No. 3 has, even before this Court, in his affidavit, tried to explain his conduct of not approving or disapproving the proposal for appointment on the basis of issuance of several letters to respondent No. 4 asking for clarification on "certain aspects". It is stated by him that the proposal dated 15. 2. ( 10 ) RESPONDENT No. 3 has, even before this Court, in his affidavit, tried to explain his conduct of not approving or disapproving the proposal for appointment on the basis of issuance of several letters to respondent No. 4 asking for clarification on "certain aspects". It is stated by him that the proposal dated 15. 2. 2006 contained some "tamperings" done with the help of white ink. He has also raised for the first time the issue of requirement of preparation of proper rojkam on the basis of the letter dated 21. 1. 2004 of the Gujarat Secondary Education Board and relied upon the letter dated 17. 2. 2006 of respondent No. 5 to justify his queries. It is boldly asserted on oath in para 15, as quoted hereinabove, that the original certificates of respondent No. 5 formed part (at pages 133 to 145) of the file which was sent by respondent No. 4 for approval to the office of the answering respondent. That original file was produced before this Court to show that the original testimonials of respondent No. 5 were in the file at pages 133 to 145. Pages No. 133 to 145 are transparent plastic dockets annexed with the file and the dockets are such that any document can be inserted into them and taken out of them at any time. This is significant in view of the fact that respondent No. 5 herself has stated on oath that she had submitted her testimonials only on 27. 2. 2006. Therefore, under no circumstances, the proposal submitted on 15. 2. 2006 could have included the original testimonials of respondent No. 5. Therefore, not only a lame excuse is sought to be made out on the basis of the existence of original testimonials in the proposal of the school, but a grossly misleading and incorrect statement is made on oath by the officer of the rank of District Education Officer which deserves serious action. ( 11 ) AS seen earlier, only on the basis of the admitted position of the petitioner standing second in the selection list and respondent No. 5 not having deposited the certificates on 15. 2. 2006, the petitioner was legally entitled to be appointed on the post in question and the D. E. O. was required to grant approval on the same day. 2. 2006, the petitioner was legally entitled to be appointed on the post in question and the D. E. O. was required to grant approval on the same day. If anything was amiss or irregular in the process of selection or in the proposal submitted by the school, the D. E. O. could have refused to grant approval, but nothing was there to justify the course of action adopted by him which appears to be calculated to see that either respondent No. 5 could be given the job or the selection and the interview could be set at naught. This lends credence to the allegations made on oath on behalf of respondent No. 4 that, because respondent No. 5 was a relative of a prominent politician, her original certificates were subsequently taken on record under political pressure. ( 12 ) EVEN during the pendency of the present proceedings, the initial order dated 14. 3. 2006 directed the District Education Officer to come prepared to answer the averments made in para 7 of the petition and also to answer as to why the proceedings of 15. 2. 2006 were not yet granted approval. Thereafter, in the order dated 27. 6. 2006, the statement of the learned A. G. P. , made on instructions of Mr. R. J. Nimavat, Assistant Education Officer, who was present in the court, was recorded; in which it was stated that appropriate decision and/or approval of respondent No. 3 shall be conveyed to respondent No. 4 in respect of the subject-matter of the petition by 7. 7. 2006 and a copy thereof shall be tendered in the court on that day. That was admittedly not done. ( 13 ) BEFORE concluding it may be clarified that respondent No. 5 has not approached the Court with any grievance or petition, but her counsel has been heard in extenso and his submission that respondent No. 5 was not asked to deposit her original testimonials at the time of interview on 15. 2. 2006 is noted with disbelief since the unanimous rojkams of the interview was signed by all the six members of the selection committee and then the important remarks were sought to be obliterated by white ink. 2. 2006 is noted with disbelief since the unanimous rojkams of the interview was signed by all the six members of the selection committee and then the important remarks were sought to be obliterated by white ink. 14 (a) In the above facts and circumstances, since respondent No. 3 is obviously not exercising his power in accordance with law despite the opportunities available to him, it is directed that respondent No. 3 shall grant his approval, within a week of receipt of a copy of this order, to the appointment of the petitioner; and respondent No. 4, having no objection to appointing the petitioner, shall issue the appointment order pursuant to the selection made on 15. 2. 2006. (b) In view of the fact that the erasures made on the important documents recording proceedings of the selection committee have caused the expensive litigation and difficulties and loss of opportunities for both the candidates concerned as well as the school, it is necessary that such alleged mischief is suitably dealt with. It was stated by learned counsel Mr. Joshi, appearing for respondent No. 4, that departmental actions were already initiated against Mr. Ashokbhai Bhandari who is alleged to have admitted his guilt. Therefore, no further direction is required in that regard, but it would be incumbent upon the respondent No. 4 to see that if any cognizable offence were disclosed, proper F. I. R. or complaint is lodged for such offence. (c) As for the aforesaid statement made on oath by Mr. Bhensdadia Vallabhbhai Bachubhai, the D. E. O. , Jamnagar, it is prima facie found that he has made misleading and incorrect statements on oath in his affidavit, more particularly in para 15 thereof, which has hampered the course of justice. The court has to take serious view of the matter because of the finding that actions, inactions and demeanour of the deponent of that affidavit has not only resulted into avoidable and unnecessary litigation for all the parties concerned, but they tend to defeat the very object and purpose of the policy articulated in the Resolution No. 25 of 2003 dated 3. 10. 2003 of the Gujarat Secondary and Higher Secondary Education Board. It would be for the officers superior to the said deponent to examine that aspect and take appropriate action in that regard. 10. 2003 of the Gujarat Secondary and Higher Secondary Education Board. It would be for the officers superior to the said deponent to examine that aspect and take appropriate action in that regard. (d) However, for making incorrect and misleading statements on oath before this Court, the matter has to be placed before the Bench taking up contempt of court matters. Accordingly, it is directed that this matter alongwith this order may be placed before the Bench taking up contempt of court matters for appropriate orders on the basis of the prima facie finding of this court that incorrect and misleading statements are made in the affidavit of the D. E. O. Mr. Bhensdadia Vallabhbhai Bachubhai. Rule is made absolute in the aforesaid terms with the direction to the respondent No. 3 to pay to the petitioner Rs. 3,000/- by way of costs.