Hetalkumar Chimanbhai Patel v. Jyoti Vidhyamandir Trust
2016-08-01
ABHILASHA KUMARI
body2016
DigiLaw.ai
JUDGMENT : Abhilasha Kumari, J. 1. Learned advocate for the petitioner submits that by inadvertence, the Gujarat Educational Institutions Services Tribunal, Ahmedabad, has not been joined as a party respondent to the petition though it was intended to be joined as such, as is clear from the prayer clause at Paragraph-7(B) to the petition. He prays for permission to join the Tribunal as respondent No. 7. Permission to do so is granted. The necessary amendment be carried out forthwith. 2. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the order dated 17.04.2015, passed by respondent No. 7 Gujarat Educational Institutions Services Tribunal, Ahmedabad ("the Tribunal") in Appeal No. 5 of 2014, as also the orders dated 09.07.2004 and 03.12.2004, passed by respondent No. 5 Commissioner, Mid-Day Meals and Schools, Government of Gujarat. A further prayer is made to direct respondent No. 1 Jyoti Vidhyamandir Trust ("the Trust"), to reinstate the petitioner in service with continuity and pay, with interest at the rate of 12% per annum. 3. The brief facts giving rise to the filing of the petition are that an advertisement was issued by respondent No. 1 Trust on 15.04.1992, inviting applications for two posts of Junior Clerk in the school run by it, by the name of Jyoti Vidhyamandir, Sola road, Ahmedabad. In response to the aforesaid advertisement, the petitioner applied for the said post on 21.04.1992. The petitioner was issued an interview call letter by respondent No. 1 Trust dated 18.05.1992, requiring him to be present at the interview that was to be held on 28.05.1992. On the date of the interview, the petitioner was interviewed by a duly constituted Selection Committee consisting of a representative of respondent No. 4 District Education Officer, Ahmedabad. The petitioner was found to be eligible for the post. The Selection Committee approved his name and the petitioner was granted appointment as Junior Clerk on the same day, vide the order dated 28.05.1992. Thereafter, as per the required procedure, the name of the petitioner was forwarded to the office of respondent No. 4, who accorded his approval on 17.08.1992. The petitioner joined service as a Junior Clerk under respondent No. 1 Trust with effect from 01.09.1992. The petitioner continued to serve on the said post for a period of twelve years. 4.
Thereafter, as per the required procedure, the name of the petitioner was forwarded to the office of respondent No. 4, who accorded his approval on 17.08.1992. The petitioner joined service as a Junior Clerk under respondent No. 1 Trust with effect from 01.09.1992. The petitioner continued to serve on the said post for a period of twelve years. 4. It so transpired, that during the academic year 2004-05, an inspection of the school run by respondent No. 1 Trust was conducted by the State Government. Several irregularities were detected. It was also found that on the date when the petitioner had applied for the post of Junior Clerk on 21.04.1992 pursuant to the advertisement dated 15.04.1992, he had not attained the age of eighteen years, as his date of birth was 07.07.1974. The petitioner would have completed eighteen years only on 07.07.1992. Respondent No. 5, therefore, passed an order dated 09.07.2004, directing that the salary of the petitioner be stopped forthwith and the grant given to respondent No. 1 Trust towards the salary of the petitioner be cancelled from the initial date of appointment and the entire amount be recovered. 5. The petitioner, being aggrieved by the aforesaid order dated 09.07.2004, passed by respondent No. 5, preferred Special Civil Application No. 8970 of 2004 before this Court. By an order dated 08.10.2004, passed in the said petition, this Court (Coram: Hon'ble Mr. Justice M.R. Shah) granted permission to the petitioner to withdraw the petition, with liberty to move an appropriate application before the Commissioner for the reconsideration of the earlier decision regarding the recovery of the amount and the filing of a criminal complaint against the petitioner. Pursuant thereto, respondent No. 5 heard the petitioner and, by an order dated 03.12.2004, maintained the earlier position regarding the stoppage of the salary of the petitioner, the cancellation of the grant given to respondent No. 1 Trust from the initial date and the recovery of the said grant. However, respondent No. 5 reconsidered the aspect regarding the filing of a criminal case against the petitioner and stated that criminal proceedings be initiated against the then Managing Trustee of respondent No. 1 Trust. 6. The petitioner challenged the orders dated 09.07.2004 and 03.12.2004 passed by respondent No. 5 before the Tribunal by filing an appeal.
However, respondent No. 5 reconsidered the aspect regarding the filing of a criminal case against the petitioner and stated that criminal proceedings be initiated against the then Managing Trustee of respondent No. 1 Trust. 6. The petitioner challenged the orders dated 09.07.2004 and 03.12.2004 passed by respondent No. 5 before the Tribunal by filing an appeal. The said appeal has been rejected by the impugned order dated 17.04.2015, giving rise to the filing of the present petition. 7. Respondents Nos. 1 to 3, who are the Trust, Manager of the Trust and the Principal of the school run by the Trust, respectively, have been served with notices of Rule. However, they have chosen not to appear before this Court. 8. Mr. Pranav S. Dave, learned advocate for Mr. Umesh A. Trivedi, learned advocate for the petitioner, has submitted that if the advertisement dated 15.04.1992, issued by respondent No. 1 Trust is perused, it will be clear that no age-limit has been given for any of the posts advertised. Nothing has been stated in the said advertisement that the candidate applying for the post of Junior Clerk must have attained the age of eighteen years as on the date of the application. The petitioner, admittedly, had not attained the age of eighteen years when he made the application on 21.04.1992. However, he had already attained the said age on 01.09.1992, the date on which he actually joined service as Junior Clerk. 9. It is further submitted that the appointment of the petitioner has been made pursuant to the selection made by the Selection Committee comprising of a representative from the office of respondent No. 4. The said appointment has been approved by respondent No. 4. Before appointing the petitioner, the Selection Committee has scrutinised all the relevant documents produced by him, therefore, it cannot be said that the appointment of the petitioner is illegal. 10. It is further contended that the petitioner has served for the last twelve years. There has never been any complaint against him. It was only after the inquiry at the school that action has been taken against the petitioner by stopping his salary. 11. It is contended that while confirming the orders passed by respondent No. 5, the Tribunal has relied upon Regulation 20(9) of the Gujarat Secondary and Higher Secondary Education Regulations, 1974 ("the Regulations").
It was only after the inquiry at the school that action has been taken against the petitioner by stopping his salary. 11. It is contended that while confirming the orders passed by respondent No. 5, the Tribunal has relied upon Regulation 20(9) of the Gujarat Secondary and Higher Secondary Education Regulations, 1974 ("the Regulations"). The said Regulation does not specify as to whether the age of eighteen years should have been attained by the candidate on the date of the application or the date of the approval of the appointment, or on the date of taking charge. The Regulation is general in nature and has to be read as it is. Nothing ought to be added or subtracted from the said Regulation. Since there is no clarity in the Regulation regarding when age of eighteen years is to be attained by the candidate, the benefit ought to be given to the petitioner, who had already attained the age of eighteen years when he actually joined service. 12. It is submitted that the Tribunal arrived at an incorrect conclusion that the appointment of the petitioner was illegal. It has failed to consider the aspect that the petitioner was appointed after complying with the procedure of selection and his appointment was approved by respondent No. 4. The entire recruitment and selection process took place in the presence of the representative of respondent No. 4. The appointment of the petitioner is neither a backdoor entry and nor is it illegal. At the most, the appointment of the petitioner can be considered to be an irregular one though made after following the due procedure. Moreover, the petitioner was appointed against a sanctioned post. Assuming that it was an irregular appointment, the procedure envisaged by the Supreme Court in the case of Secretary, State of Karnataka And Others v. Uma Devi (3) And Others reported in (2006) 4 SCC 1 , is required to be followed. 13. It is submitted that there are no allegations of fraud or suppression of facts against the petitioner. At present, the petitioner has reached the age of 42 years and it would be difficult for him to find employment. The petitioner is not at fault in any manner, therefore, the prayers made by him may be granted. 14.
13. It is submitted that there are no allegations of fraud or suppression of facts against the petitioner. At present, the petitioner has reached the age of 42 years and it would be difficult for him to find employment. The petitioner is not at fault in any manner, therefore, the prayers made by him may be granted. 14. In support of the above submissions, reliance has been placed upon a judgment of this Court in Thakore Jignakuma v. District Primary Education Officer & Ors., 1996 (1) GCD 164. 15. Mr. Niraj Ashar, learned Assistant Government Pleader appearing for respondents Nos. 4 and 5, has strongly opposed the petition by defending the orders passed by respondent No. 5 and the Tribunal. He has submitted that the State Government had conducted an inquiry in the school run by respondent No. 1 Trust, pursuant to which several irregularities came to light. Among other irregularities, it was found that the petitioner has been given appointment as a Junior Clerk even though he had not attained the age of eighteen years on the date of appointment. Respondent No. 5 has, therefore, rightly cancelled the grant-in-aid given to the Trust towards the salary of the petitioner and ordered the stoppage of his salary. This action has been taken against respondent No. 1 Trust. No order has been passed by respondent No. 5 against the petitioner, therefore, the petitioner can have no grievance against respondents Nos. 4 and 5. 16. Learned Assistant Government Pleader has further contended that, it is an admitted position that the date of birth of the petitioner being 07.07.1974, he had not attained the age of eighteen years on 28.05.1992, which is the date of the appointment order. He would have attained the said age only on 07.07.1992. It is submitted that Regulation 20(9) of the Regulations clearly stipulates that no person shall be appointed as a member of the clerical staff unless he has attained the age of eighteen years. There is no ambiguity in the said Regulation. The petitioner has been appointed as a Junior Clerk and would be covered by the said Regulation. It is further submitted that the appointment of the petitioner is contrary to the Regulation. It cannot be termed as a mere irregularity but is clearly an illegality, that has rightly not been condoned by the Tribunal. 17.
The petitioner has been appointed as a Junior Clerk and would be covered by the said Regulation. It is further submitted that the appointment of the petitioner is contrary to the Regulation. It cannot be termed as a mere irregularity but is clearly an illegality, that has rightly not been condoned by the Tribunal. 17. Regarding the delay in taking action against the petitioner, it is submitted that such action could only be taken when the illegality came to light. An illegality would remain so for all times. It would not be cured by the passage of time. It is submitted that when the State Government detected the illegal appointment of the petitioner, the grant given to respondent No. 1 Trust was stopped. There is no embargo on the stoppage of the grant to the Trust if it does not follow the rules and regulations. The orders passed by respondent No. 5 have correctly been upheld by the Tribunal by a detailed order. 18. Defending the order of the Tribunal, learned Assistant Government Pleader has submitted that the Tribunal has correctly summed upon the entire position by giving clear and cogent reasons. There is no illegality or perversity in the order of the Tribunal. Under the circumstances, this Court, in exercise of powers under Articles 226 and 227 of the Constitution of India, may not interfere. 19. It is contended that the conduct of the Trust can be seen from the fact that it has chosen not to appear before this Court in spite of the service of the notice of Rule. 20. Regarding the submission advanced by the learned counsel for the petitioner to the effect that the advertisement does not provide for any age-limit, it is submitted by the learned Assistant Government Pleader that any lacuna in the advertisement cannot invalidate the Regulations. The State Government has permitted respondent No. 1 Trust to fill up the posts as per the advertisement, in accordance with law. The appointment of the petitioner cannot be said to have been made in a legal and proper manner, as required by Regulation 20(9). 21. Distinguishing the judgment in the case of Thakore Jignakuma v. District Primary Education Officer & Ors. (supra), it is submitted that the petitioners in that case had attained the age of majority during the process of recruitment.
21. Distinguishing the judgment in the case of Thakore Jignakuma v. District Primary Education Officer & Ors. (supra), it is submitted that the petitioners in that case had attained the age of majority during the process of recruitment. However, in the present case, the petitioner had not attained the age of eighteen years on the date of the appointment order. Hence, this judgment would not come to the aid of the petitioner. 22. On the above grounds, it is prayed that the petition be rejected. 23. Mr. Sudhanshu Jha, learned advocate for Mr. A.D. Oza, learned advocate for respondent No. 6 Gujarat Secondary and Higher Secondary Education Board, has submitted that the Board is a formal party and he would adopt the submissions advanced by the learned Assistant Government Pleader. Learned advocate for respondent No. 6 has also distinguished the judgment in the case of Thakore Jignakuma v. District Primary Education Officer & Ors. (supra) relied upon on behalf of the petitioner and has further submitted that in view of the clear stipulation in Regulation 20(9), respondent No. 1 Trust could not have granted appointment to the petitioner when he had not attained the age of eighteen years. 24. In the above background, this Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned orders passed by respondent No. 5 and the Tribunal and the other documents on record. 25. The first contention raised by Mr. Pranav S. Dave, learned advocate for the petitioner, is that in the advertisement dated 15.04.1992 issued by respondent Trust, no age-limit has been prescribed for any of the posts advertised, therefore, there was no impediment in the way of the petitioner in applying for the post of Junior Clerk even though he had not attained the age of eighteen years. A copy of the advertisement has been placed on record as Annexure-B at running page 16 to the petition. It is, to say the least, quite illegible. It is not certain whether the document produced is the entire advertisement or a part of it. The typed copy of the advertisement is at running page 16-A to the petition. In the said advertisement only the posts and the educational qualifications have been enumerated. No requirement of age is reflected.
It is, to say the least, quite illegible. It is not certain whether the document produced is the entire advertisement or a part of it. The typed copy of the advertisement is at running page 16-A to the petition. In the said advertisement only the posts and the educational qualifications have been enumerated. No requirement of age is reflected. The advertisement has been issued by respondent No. 1 Trust, which is receiving 100% grant-in-aid from the State Government for running the school. It is obvious that being a grant-in-aid institution, no appointment can be made by the said Trust which is contrary to the Regulations. It is trite law that public appointment cannot be offered to any person who has not attained the age of eighteen years. In any event, even if it is conceded that the advertisement, as produced, does not specify any age-limit, it is only an offer inviting applications. Any candidate applying for the post in question would have to meet with the eligibility criteria and requirements of the post, as prescribed under the Statute, Rules or Regulations, as the case may be. In the present case, Regulation 20(9) of the Regulations makes it very clear that no person shall be appointed as a member of the clerical staff unless he has attained the age of eighteen years. The advertisement mentions the post of Junior Clerk and the educational qualifications are S.S.C. with Mathematics. The appointment of a Junior Clerk is an appointment in the clerical staff and would be covered by Regulation 20(9) that specifically bars the appointment of any person under the age of eighteen years. Respondent No. 1 Trust, which was running a fully-aided school, would have to comply with the requirements of the Regulations. Any shortcoming or lacuna in the advertisement issued by it cannot invalidate the Regulations or convert an appointment which is de-hors the Regulations into a legal one, when it is illegal from its very inception. 26. Another submission advanced on behalf of the petitioner is that the Selection Committee comprising of a representative from the office of the District Education Officer, has selected the petitioner after scrutiny of the relevant documents. This contention was raised before the Tribunal as well. The Tribunal, in the impugned order, has rightly observed that the presence of Government representatives would not make an illegal act legal.
This contention was raised before the Tribunal as well. The Tribunal, in the impugned order, has rightly observed that the presence of Government representatives would not make an illegal act legal. Rather, such officers have shown their negligence and connivance, apart from a flagrant disregard of the Regulations. It appears that for reasons best known to them, the members of the Selection Committee, including the representative of respondent No. 4, have conveniently turned a blind eye in selecting the petitioner, knowing that he had not attained the age of eighteen years on the date of the advertisement on 15.04.1992, on the date of making the application on 21.04.1992, or on the date of interview on 28.05.1992. The appointment order dated 28.05.1992 was issued to the petitioner on the date of the interview itself. Admittedly, on that date, the petitioner had not attained the age of eighteen years, as required by Regulation 20(9). It may be true that the petitioner actually joined duty on 01.09.1992, after he had attained the age of eighteen years on 07.07.1992. However, it is the date of appointment that is required to be considered and not the date of joining. Regulation 20(9) clearly states that no person shall "be appointed" as a member of the clerical staff unless he has attained the age of eighteen years. The fact that the petitioner reported for work after he had attained the age of eighteen years does not save him from the rigours of Regulation 20(9). The appointment of the petitioner is clearly hit by the said Regulation. 27. A submission has been advanced that the petitioner was working for the past twelve years without any complaint against him and that he has now reached the age of 42 years when it will be difficult for him to get other employment. The number of years that the petitioner has worked would not be relevant in light of the fact that his appointment is contrary to Regulation 20(9). The petitioner has only himself to blame for this state of affairs. The appointment of the petitioner in contravention of the Regulations points towards the connivance of the respondent Trust and the members of the Selection Committee, who may have desired to favour the petitioner. The appointment of the petitioner is clearly illegal from its very inception.
The petitioner has only himself to blame for this state of affairs. The appointment of the petitioner in contravention of the Regulations points towards the connivance of the respondent Trust and the members of the Selection Committee, who may have desired to favour the petitioner. The appointment of the petitioner is clearly illegal from its very inception. Just because several years have elapsed and the petitioner has crossed the age of employment cannot be a ground for sympathetic consideration by this Court. 28. Regarding the submission that the appointment of the petitioner is irregular and not illegal, as the selection procedure was followed before he was appointed, this Court is unable to agree with the said submission. Any appointment that is de-hors the Rules or Regulations prescribed for the post in question cannot be termed as an irregular one. It would be an illegal appointment. The fact that the Selection Committee appointed the petitioner speaks volumes regarding the manner in which the selection and appointment of the petitioner has been made. Respondent No. 1 Trust, the members of the Selection Committee and the representative from the office of the District Education Officer have deliberately turned a blind eye to the ineligibility of the petitioner for appointment to the post of Junior Clerk. In fact, the application of the petitioner could not have been considered. Even on the date of interview, the fact that the petitioner was less than eighteen years would have been evident from his documents. The appointment order could not have been issued at all. For the above reasons, the submission advanced by learned counsel for the petitioner that the case of the petitioner is covered by Paragraph-53 of the judgment in Secretary, State of Karnataka And Others v. Uma Devi (3) And Others (supra) cannot be accepted. The principles of law enunciated by the Supreme Court in Secretary, State of Karnataka And Others v. Uma Devi (3) And Others (supra) are regarding the regularisation of the services of those persons who have worked for ten years or more. In the case of the petitioner, there can be no question of the regularisation of his services as he is not in service as of date, as his salary was stopped due to the cancellation of the grant to respondent No. 1 Trust.
In the case of the petitioner, there can be no question of the regularisation of his services as he is not in service as of date, as his salary was stopped due to the cancellation of the grant to respondent No. 1 Trust. The fact that the process of recruitment was undertaken and the Selection Committee had scrutinised the application of the petitioner cannot validate his appointment when the selection and appointment is not in conformity with the Regulations. 29. It has been strongly argued on behalf of the petitioner that Regulation 20(9) is general in nature and is required to be read as it is and nothing ought to be added or subtracted from it. Regulation 20(9) states thus: "20(9). No person shall be appointed as a member of the Clerical staff unless he- (a) has attained the age of eighteen years; and (b) possesses Matriculate or S.S.C.E. Certificate with Mathematic as one of the subjects. (c) the post of Jr. Clerk in Govt. Secondary School should, instead of direct recruitment, be filled in by promotion from amongst the Class IV employees (Peons) having required educational qualifications and having at least three years continuous service so as to provide appointments of promotions to the peons working in a non-Govt. Secondary School and having due educational qualifications. The post of Jr. Clerk should be filled in through direct recruitment only when the employee (peons) having such qualifications are not available in the School." A perusal of the said Regulation, as it is, without adding or subtracting anything from it, as suggested by learned counsel for the petitioner, makes it amply clear that the appointment of the petitioner is contrary to the said Regulation as the petitioner was not eighteen years of age when he was appointed. There is no ambiguity in the said Regulation. Nothing could be more clear or specific. The petitioner could not have been appointed as a Junior Clerk before he had attained the age of eighteen years. The appointment of the petitioner is clearly barred by Regulation 20(9). 30. It has been contended that the appointment of the petitioner was not a back-door entry as the petitioner underwent the recruitment and selection procedure. It may be true that the procedure of selection was purportedly followed. However, in the present case it appears to have been an empty formality.
30. It has been contended that the appointment of the petitioner was not a back-door entry as the petitioner underwent the recruitment and selection procedure. It may be true that the procedure of selection was purportedly followed. However, in the present case it appears to have been an empty formality. While appointing the petitioner, the Selection Committee was obliged to comply with Regulation 20(9). The fact that it has failed to do so, would not confer any undue advantage upon the petitioner. It is true that the petitioner did not suppress the fact that he was not eighteen years of age on the date of his appointment. This aspect has been clearly stated in the petition. However, it cannot be ignored that the Regulations are required to be strictly followed. This Court cannot condone any appointment that has been made in deliberate and flagrant disregard of the Regulations, be it by a Selection Committee comprising of a Government representative, or with the approval of the competent authority. It is expected that the State Government would have taken a serious view of the action of the members of the Selection Committee who have deliberately flouted the Regulations. 31. The prayer of the petitioner in the present petition is for a direction to respondent No. 1 Trust to reinstate him in service with continuity and pay. Respondent No. 1 Trust has chosen not to appear before this Court. The State Government has not passed any order terminating the services of the petitioner. It appears that the stoppage of the grant by the State Government to respondent No. 1 Trust towards the salary of the petitioner has resulted in the stoppage of the salary of the petitioner, rendering him out of work. Though respondent No. 1 Trust appears to be responsible for giving appointment to the petitioner in an illegal manner, however, the petitioner cannot be absolved of blame in this regard, as well. Before applying for a post, the candidate is expected to know the requirements of the post. It is, therefore, not possible to grant the prayers made in the petition. 32. Learned counsel for the petitioner has placed reliance upon a judgment of this Court in Thakore Jignakuma v. District Primary Education Officer & Ors. (supra). In that case, this Court was dealing with Rule 4 of the Gujarat Panchayat Service (Recruitment of Primary Teacher) Rules, 1970.
It is, therefore, not possible to grant the prayers made in the petition. 32. Learned counsel for the petitioner has placed reliance upon a judgment of this Court in Thakore Jignakuma v. District Primary Education Officer & Ors. (supra). In that case, this Court was dealing with Rule 4 of the Gujarat Panchayat Service (Recruitment of Primary Teacher) Rules, 1970. The petitioners therein were found to be below the minimum age on the date when the recruitment process started. However, they were considered and selected under an interim order passed by the Court. By the time the process of recruitment was over, they had attained the qualifying age. In the peculiar facts and circumstances, this Court held that the petitioners ought not to be deprived of the natural consequences and fruits of their selection. The peculiar facts of that case and the fact that the petitioners had attained the age of selection during the recruitment process does not have any parallel with the facts of the present case, wherein, on the very date of appointment, the petitioner did not possess the requisite qualification regarding age. 33. Considered from all angles, the case of the petitioner has no merit and must fail. The Tribunal has rightly confirmed the orders passed by respondent No. 5. There is no illegality, infirmity or perversity in the impugned order of the Tribunal, which deserves no interference from this Court. 34. Accordingly, the petition is rejected. Rule is discharged. There shall be no orders as to costs.