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Gujarat High Court · body

2019 DIGILAW 1167 (GUJ)

Mehulkumar Natvarbhai Patel v. State Of Gujarat

2019-12-18

A.S.SUPEHIA

body2019
ORDER : This note for speaking to minutes is filed by the learned advocate for the petitioner in Special Civil Application No. 297 of 2013, stating that due to typographical mistake in Paragraph No.2.1 (on Page 2) in 5th line of the judgment dated 22.10.2019 rendered by this court, the words “Special Civil Application No. 6927” is to be replaced with “the Special Civil Application No. 6921”. It is submitted by the learned advocate for the petitioner that in 3rd line of paragraph No. 3.2 (page No. 4) words “annexed at page No. 101” are inadvertently mentioned, which are required to be deleted from such paragraph. It is further submitted by the learned advocate for the petitioner that in 4th line of paragraph No. 3.2. (page No. 4) words “Gujarat State Kabaddi Selection Tournament from 28.11.2002 to 29.11.2002” are mentioned inadvertently, which are required to be corrected as “55 Senior National Kabaddi Championship-2007 from 12.12.2007 to 16.12.2007. Considering the contents of the Note for speaking to minute, the present Note for speaking to minutes is allowed. Rest of the order remains intact. Registry to prepare and issue fresh writ accordingly. Note stands disposed of accordingly. JUDGMENT : 22-10-2019 1. The present petition has been filed seeking quashing and setting aside the impugned order dated 01.11.2011 passed by respondent No.3 – District Primary Education Officer, as violative of Articles 14, 21 and 311 of the Constitution and of the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. 2. It is stated that in response to the application of the petitioner for the post of Vidhya Sahayak, after due process of selection and after due verification of the certificates and testimonials of the petitioner, respondent No.3 – District Primary Education Officer, Vadodara issued an appointment order dated 06.12.2008 appointing the petitioner as Vidhya Sahayak. 2.1 After two years, by the order dated 29.04.2011 passed by the respondent No.3 – District Primary Education Officer, Vadodara, the service of the petitioner as Vidhya Sahayak, was terminated. Being aggrieved by the order of termination, the petitioner approached this Court by filing a writ petition being Special Civil Application No.6927 of 2011 under Article 226 of the Constitution of India, challenging the legality and validity of the said termination order on various grounds. Several other writ petitions also came to be filed by similarly situated Vidhya Sahayaks. Being aggrieved by the order of termination, the petitioner approached this Court by filing a writ petition being Special Civil Application No.6927 of 2011 under Article 226 of the Constitution of India, challenging the legality and validity of the said termination order on various grounds. Several other writ petitions also came to be filed by similarly situated Vidhya Sahayaks. Thereafter, by a common oral order dated 13.07.2011, this Court disposed of the aforesaid group of writ petitions by directing the respondent authorities to constitute a committee of three officers, one officer from the office of Director of Primary Education, one officer from Education Department not below the rank of under Secretary, and District Primary Education Officer, Vadodara to examine the cases of the petitioners, who were terminated from service independently without being influenced by the earlier termination orders. It was also directed therein that the petitioners should be given show cause notice alongwith all the documents that are going to be relied upon by the committee and also should be afforded a personal hearing and the final decision taken by the committee is required to be communicated to the petitioners individually by RPAD. 2.2 After following the direction of this Court vide order dated 01.11.2011, respondent No.3 – District Primary Education Officer, Vadodara, cancelled the appointment order dated 06.12.2008 appointing the petitioner to the post of Vidhya Sahayak and removed her from the service as Vidhya Sahayak without affecting her eligibility for future employment on the ground that the Sports Certificate produced by the petitioner was found to be a fake one. 2.3 Being aggrieved by the impugned order dated 01.11.2011 passed by respondent No.3 – District Primary Education Officer, Vadodara, cancelling the appointment order dated 06.12.2008, the captioned petition under Article 226 of the Constitution is filed. 3. At the outset, learned Senior Counsel Mr.Shalin Mehta has submitted that the issue is squarely covered by the judgment of the Division Bench rendered in Letters Patent Appeal No.372 of 2019 with allied matters on 17.06.2019. 3.1 Learned Senior Counsel Mr.Mehta has invited the attention of this Court to the show cause notice issued to the petitioner on 08.09.2011 calling upon her to explain the veracity of the certificate annexed by her at the time of appointment. He has submitted that the impugned order is premised on the letter dated 29.09.2011 which is considered behind the back of the petitioner. He has submitted that the impugned order is premised on the letter dated 29.09.2011 which is considered behind the back of the petitioner. It is submitted that the burden was thrown upon the petitioner for proving that the Sports Certificate issued by the Gujarat State Kabaddi Association was forged. 3.2 Learned Senior Counsel Mr.Mehta has further submitted that the Gujarat State Kabaddi Association has issued the Sports Certificate annexed at page No.101 certifying that the petitioner had participated in the Gujarat State Kabaddi Selection Tournament from 28.11.2002 to 29.11.2002. He has submitted that the respondent authority has considered the reply filed by the Gujarat State Kabaddi Association on 29.09.2011 after the petitioner had submitted his defence to the show casue notice. He has submitted that without examining the concerned authority of the Gujarat State Kabaddi Association, who had issued the Certificate, the impugned order of termination could not have been passed. It is further alleged that the letter dated 29.09.2011 issued by the Gujarat State Kabaddi Association was not supplied to the petitioner and hence, the impugned order of termination is in violation of principal of natural justice as well as the provisions of Article 311(2) of the Constitution of India and is required to be quashed and set aside. 4. Learned advocate Mr.Munshaw appearing for respondent No.3 has vehemently opposed the submissions advanced by the learned Senior Counsel Mr.Mehta and has submitted that the present petition may not be entertained since it is erroneous as the appointment was held on the basis of the fake certificate. A reliance is placed by him on the judgment of the Apex Court in the case of Mukesh Kumar Badoni Vs. State of Punjab and Others, reported in (2008) 4 SCC 446. It is submitted that the present petitioner did not fulfill the qualification at the relevant time and has procured the appointment by producing the fake certificate and hence, the termination of order may not be quashed and set aside. However, he is unable to controvert that the division bench of this Court has already examined similar issue raised in the present petition. 5. This Court has considered the submissions advanced by the learned advocates for the respective parties and has also perused the relevant documents as pointed out by them. 6. However, he is unable to controvert that the division bench of this Court has already examined similar issue raised in the present petition. 5. This Court has considered the submissions advanced by the learned advocates for the respective parties and has also perused the relevant documents as pointed out by them. 6. The Division Bench in the judgment dated 17.06.2019 passed in Letters Patent Appeal No.310 of 2019 and its allied matters, while deciding the controversy of the dismissal orders based on the bogus Sports Certificate, while confirming the observations made by the Coordinate Bench in similar set of facts, has observed thus: “18 When the dismissal order dated 23.09.2014 in context of such appointees is read, it makes out a chronology. Reference in the dismissal order is made to notices issued to such candidates by the Committee on 30.11.2012 and 14.12.2012, show cause notice dated 01.07.2013, the representations made by such candidates in response to such notices, order dated 20.8.2014 in PIL 39 of 2012 and also a reference to a personal hearing given to such candidates. 19 The order of dismissal is in standard format which when translated, states that the concerned candidate was placed at a particular serial number in the merit list. An inquiry was conducted by the State Government based on reports that such appointments were obtained on the basis of a bogus Sports Certificate. That the candidates were called for hearing vide notices dated 30.11.2012 and 14.12.2012 and show cause notices were issued. The order further recited that no direct or indirect evidence had been produced by the appointees to show that such candidates had participated in the Kabaddi Competition. The certificates had therefore been found to be bogus and therefore after giving an opportunity of hearing in consonance with the principles of natural justice, since it is found that certificates were bogus the appointments were cancelled and the appointees were dismissed from service. 20 In the context of these facts, let us consider the finding of the learned Single Judge on the basis of the submissions made by the respective advocates. 21 From the paper book of the Letters Patent Appeals wherein the 32 respondents are concerned, the following documents are on record: (1) the Certificate of the Gujarat State Kabaddi Association which states that it is affiliated to the Amateur Kabaddi Federation of India and Gujarat State Olympic Association. 21 From the paper book of the Letters Patent Appeals wherein the 32 respondents are concerned, the following documents are on record: (1) the Certificate of the Gujarat State Kabaddi Association which states that it is affiliated to the Amateur Kabaddi Federation of India and Gujarat State Olympic Association. (2) Relevant participation certificate of the candidate having participated in the Kabaddi Championship, (3) Relevant annexure in a format certified by the office bearer of the Kabaddi Association, confirming the candidates participation. (4) Invitation letter of the Amateur Kabaddi Federation of India and proof of travel. (5) Also is on record, in some cases the signatory of the Gujarat State Kabaddi Association, being an office bearer of the Amateur Kabaddi Federation of India and a letter of its recognition by the Ministry of Youth Affairs. (6) Applications made and proof of receipt of the office of the District Primary Education Office of having received such original certificates. (7) Assertions in all cases that the Certificates were verified by the officers in the backdrop of specific instruction of May 2008 made of verification of Sports Association done prior to the appointments. 22 Based on these undisputed facts, representations were made pursuant to the show cause notices. It was the case of the candidates that such sports certificates were verified by the officials, annexed to the applications and receipts were issued in proof of such deposit. Cancellation of appointments was done by the authority on the basis that the Certificates were bogus. It was the case of the petitioners that there was no material available to the authorities to come to a conclusion that the certificates were bogus. The orders of dismissal were also challenged on the ground that they violated principles of natural justice as no departmental proceedings were held, no witnesses were examined. Based merely on a report of an Inquiry Committee formed pursuant to the order in the PIL, orders were passed without supplying copy of the report. The order therefore was violative of principles of natural justice. 30 The learned Single Judge has categorically in respect of the 32 respondents, held that even if the irregularity is accepted, the petitioners cannot be blamed, particularly when, after the appointment or during the process, there were stages of scrutiny and verification which have been done and originals are with the authority. 30 The learned Single Judge has categorically in respect of the 32 respondents, held that even if the irregularity is accepted, the petitioners cannot be blamed, particularly when, after the appointment or during the process, there were stages of scrutiny and verification which have been done and originals are with the authority. From what is stated in (I) to (VIII) herein above, it is therefore evident that it cannot be said that the candidates have secured their appointment through fraud. Documents which are part of their record reveal that certificates were issued by the Gujarat State Kabaddi Association. The office bearer of the association is one of such office holders of the Amateur Kabaddi Federation of India. The Ministry of Youth Affairs has recognized it. The DPEO officials have, in the course of exercise of recruitment verified certificates, issued receipts pursuant to the preliminary scrutiny of the association carried out by them. It certainly cannot be said to be a case where the candidate knowingly produced a fraudulent / forged document to secure an appointment. From the language of the show cause notices issued and the order of dismissal, it is evident that the burden was cast upon the candidate to prove the genuineness of the certificate. The authority itself has presumed that the certificates are bogus. The entire exercise has been carried with the order of PIL. Reading of the judgment dated 20.08.2014, particularly the quoted portions reproduced hereinabove specifically indicate that the candidates cannot be faulted or be said to have committed a fraud. Even the Inquiry Committee’s Report placed on record for the first time in 2018 reveals complete absence of how the conclusion that the Certificates are bogus, has been arrived at.” 7. Thus, the learned Single Judge in the pari materia facts has observed that even after the appointment of the Committee in the fact finding and verification on the basis of the material, which has been specifically recorded about the lack of material and inferences are drawn on which the action is taken, which was challenged in those petitions. The learned Single Judge has not accepted the submissions advanced by the learned advocate for the respondents about the irregularity or the illegal appointments. The Division Bench after considering the observations made by the learned Single Judge has observed in paragraph No.33: “33. The learned Single Judge has not accepted the submissions advanced by the learned advocate for the respondents about the irregularity or the illegal appointments. The Division Bench after considering the observations made by the learned Single Judge has observed in paragraph No.33: “33. The learned Single Judge has also rightly drawn support from the case of Mahipalsingh Tomar (supra). In the facts of the present case, the State Government resolved on 19.11.2012 to appoint a four member committee. The Committee issued notices to Vidya Sahayaks to remain present with their certificates and original call letters etc. A report was made on 19.01.2013. Status Report was filed on 20.09.2013. Show cause notice and termination order followed. Neither did the Inquiry Committee categorically record as to how certificates were bogus or what was the basis of arriving at such a conclusion. That apart, the burden to prove otherwise was shifted on the candidates contrary to the settled principle. It is in these facts that it will be noteworthy to reproduce the relevant paras of Mahipalsingh Tomar (supra): “12. We have heard learned Counsel for the parties and scanned the records of all the appeals. Since there is no dispute between the parties that copy of the report prepared by the District Magistrate was not supplied to any of the appellants and no action oriented notice or opportunity of hearing was given to them proposing cancellation of their placement as Principals and termination of their services, there is no escape from the conclusion that the decision taken by the State Government and consequential actions taken by the Director and the Management of the Colleges were nullity and the laboured exercise undertaken by the High Court to record a finding that placement of the Appellants in the particular colleges was void was not at all warranted. 13. It is neither the pleaded case of the Respondents nor has it been argued before us that any of the Appellants was instrumental in his/her placement in the particular college or change of placement from one College to the other. It has also not been suggested that the Appellants or any one of them had misled the Director in the matter of his/her placement in the particular college or used undue influence for securing placement in the particular College. It has also not been suggested that the Appellants or any one of them had misled the Director in the matter of his/her placement in the particular college or used undue influence for securing placement in the particular College. Therefore, the Appellants could not have been condemned unheard by the State Government and the Director by being denied the bare minimum opportunity to controvert the finding recorded by the District Magistrate and to show cause that there was no valid ground or justification to cancel his/her placement. The Division Bench of the High Court committed serious error by non-suiting them by invoking the proposition laid down in Mohd. Sartaj vs. State of UP.(supra), Ashok Kumar Sonkar v. Union of India (supra) and State of Manipur vs. Y.Token Singh (supra).” 8. The Division Bench has specifically observed that from the language of the show cause notice issued and the order of dismissal, it is evident that the burden was cast upon the candidate to prove the genuineness of the certificate. The authority itself has presumed that the certificates are bogus. The entire exercise has been carried out with a pre- judged mind only under the guise of complying with the order of PIL. 9. In the present case, there are serious allegations doubting the veracity of the Sports Certificate produced by the present petitioner. The show cause notice proceeds on the basis that such Certificate if ultimately is found fake, serious consequences shall be followed. It is not in dispute that after issuing the show cause notice, the respondents while issuing the impugned order of termination on 01.11.2011, respondent No.3 has placed reliance on the letter of the Gujarat State Kabaddi Association, which had issued the Sports Certificate dated 29.09.2011, wherein the Association has stated that the petitioner had not taken part in Kabaddi tournament. It is also not in dispute that no one from the Gujarat State Kabaddi Association has been examined and the letter dated 29.09.2011 has been considered after the petitioner had replied to the show cause notice issued by the respondent No.3. 10. In the considered opinion of this Court, the procedure adopted by respondent No.3 is in violation of principle of natural justice as well as procedure envisaged under the provisions of Article 311(2) of the Constitution of India. 11. 10. In the considered opinion of this Court, the procedure adopted by respondent No.3 is in violation of principle of natural justice as well as procedure envisaged under the provisions of Article 311(2) of the Constitution of India. 11. In wake of the fact that no one from the Gujarat State Kabaddi Association, which has issued the certificate, has been examined for the inquiry, the entire proceedings, lapse and the impugned order of termination, which is based on such findings and on basis of the letter dated 29.09.2011 of the Gujarat State Kabaddi Association which is admittedly not supplied to the petitioner, the impugned order of termination is required to be quashed and set aside. 12. The writ petition is allowed in terms of the judgment dated 17.06.2019 passed by the Division Bench. Since the other similarly situated employees, of the aforementioned Letters Patent Appeal and writ petitions, were continued under the interim orders of this Court, the respondents are directed to reinstate the petitioner and confer her all the benefits, which are paid to the employees of the Letters Patent Appeal. Necessary orders to that effect shall be passed by the authority within three months from the date of the receipt of the order of this Court. 13. Under the circumstances, the impugned order of termination is hereby quashed and set aside. Rule made absolute. 14. In view of the order passed in the main matter, Civil Application (for fixing date of hearing) No.1 of 2019 does not survive and the same is disposed of accordingly.