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2019 DIGILAW 566 (GUJ)

FALGUNIBEN MAFATBHAI PATEL v. STATE OF GUJARAT

2019-05-07

A.S.SUPEHIA

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ORDER : Learned advocate for the petitioner seeks permission to withdraw the present note for speaking to minutes dated 01.05.2019 with a view to file appropriate application. Permission granted. The present note for speaking to minutes stands disposed of as withdrawn with the above liberty. JUDGMENT : Date : 10/04/2019 1. The present writ petition has been filed by the petitioner seeking quashing and setting aside the impugned order dated 29.11.2011 passed by the Joint Director of Education (Secondary) i.e. respondent No.2. Further direction is sought commanding the respondents herein to accept the petitioner’s representation dated 14.07.2011 by continuing her in service as an Assistant Teacher or by re-employing and absorbing her in a non-teaching post. 2. Short facts of the case are as under : 2.1 The respondent No.1 is State, respondent No.2 is the Joint Director of Education (Secondary) who has passed the impugned order, respondent No.3 is the District Education Officer, an officer of the State, respondent No.4 is the Principal of Pallavi Vidyalaya (secondary school), Asarwa, Ahmedabad, wherein the petitioner served as an Assistant Teacher from 1990 to 2007 and respondent No.5 is Yogiji Kripa Education Trust which manages the affairs of Pallavi Vidyalaya. 2.2 The petitioner was appointed as Assistant Teacher on 11.06.1990 in the school after following due process of selection. That, at the time of recruitment, all the documentary evidences were produced before the authority and were considered before granting the order of appointment. 2.3 The respondent management submitted a proposal dated 23.07.2007 for deduction of classes in the respondent school to the District Education Officer, Ahmedabad City, and to declare the affected employees working in the school as surplus. 2.4 That the respondent management issued show cause notice on 30.07.2007 to the petitioner seeking her explanation on the issue about obtaining the job by producing the fake/forged B.Ed. certificate. The petitioner had given reply on 07.08.2007 to the said show cause notice, but as the respondent management was predetermined to terminate the petitioner, they did not accept the reply and pursued the matter of terminating the petitioner by issuing another show cause notice on 23.08.2007. The petitioner had given reply to the said show cause notice on 27.08.2007 and had denied the averments and allegations made in the said show cause notice and had represented for continuing her in service as the Assistant Teacher. The petitioner had given reply to the said show cause notice on 27.08.2007 and had denied the averments and allegations made in the said show cause notice and had represented for continuing her in service as the Assistant Teacher. 2.5 Upon receipt of the replies from the petitioner, the respondent management had referred the matter to the respondent No.3-District Education Officer, Ahmedabad City. The District Education Officer passed an order on 10.09.2007 in the matter referred by the respondent management and observed that since the petitioner was found to have entered into the service on the basis of a fake B.Ed. certificate, she cannot be given protection of surplus, and therefore, her salaries were ordered to be stopped from September, 2007. 2.6 The petitioner being aggrieved by the said order dated 10.09.2007 passed by the District Education Officer, preferred Application No.270/2007 before the learned Education Tribunal, challenging the order dated 10.09.2007 passed by the District Education Officer, Ahmedabad City. 2.7 During the pendency of Application No.270/2007 filed by the petitioner before the learned Tribunal, the respondent management, on the basis of the order dated 10.09.2007 passed by the District Education Officer, issued a show cause notice on 14.09.2007 to the petitioner seeking her explanation. 2.8 A detailed reply was submitted by the petitioner on 04.10.2007 to the show cause notice dated 14.09.2007 given by the school management. Once again a letter dated 18.10.2007 was issued to submit her explanation, and thereafter the respondent management had asked her to come for hearing on 1.1.2008. Thereafter, the respondent management sent a proposal on 3.1.2008 to the Authorized Officer and sought his approval to their proposed action of terminating the petitioner’s service as required under section 36 of the Gujarat Secondary Education Act, 1972. 2.9 That the District Education Officer accorded approval on 5.2.2008 to the management’s proposal and on that basis the services of the petitioner came to be terminated by order dated 6.2.2008, which was subject matter of challenge in Application No.27/2008 filed on 14.2.2008 before the Gujarat Secondary Education Tribunal by the present petitioner. 2.10 The Gujarat Secondary Education Tribunal passed common order on 14.7.2010 in Application No.27/2008, whereby both the applications preferred by the petitioner have been rejected. 2.10 The Gujarat Secondary Education Tribunal passed common order on 14.7.2010 in Application No.27/2008, whereby both the applications preferred by the petitioner have been rejected. 2.11 Being aggrieved and dissatisfied with the impugned common order dated 14.7.2010 passed by the Gujarat Secondary Education Tribunal in Application No.27/2008, the petitioner preferred a petition under Article 226 of the Constitution of India viz., Special Civil Application No.10601/2010. 2.12 This Court vide order dated 23.09.2010 passed in Special Civil Application No.10601/2010 affirmed the order passed by the Gujarat Secondary Education Tribunal, Ahmedabad by observing that it will be open for the petitioner to take recourse to the remedy available to her under the law. The petitioner saw a window of opportunity by approaching the Gujarat Secondary Education Tribunal, Ahmedabad by way of Application No.192/2010 with a prayer that respondent Nos. 2 and 3 to absorb her in a non-teaching post. Simultaneously, the petitioner wrote a letter to respondent No.4 to re-employ and absorb her in the school in a non-teaching post. 2.13 On 17.05.2011, the District Education Officer, Ahmedabad City, Ahmedabad, respondent No.3 sent a missive to respondent No.2 recommending the petitioner’s absorption in a non-teaching post. 2.14 On 6.7.2011, the Gujarat Secondary Education Tribunal, Ahmedabad disposed of Application No.192/2010 after hearing the rival parties by directing the respondent Nos. 2 and 3 to render a decision on the petitioner’s representation with due sympathy and in accordance with law as early as possible. 2.15 Pursuant thereto, the petitioner filed on 14.07.2011 a representation with respondent No.2 seeking continuation as an Assistant Teacher or reemployment and absorption in a non-teaching post in light of her long service of 17 years from 1990 to 2007. 2.16 The respondent No.2 rejected the petitioner’s representation dated 14.07.2011 by order dated 29.11.2011. This petition is filed challenging the same. 3. Learned senior advocate Mr. Shalin Mehta appearing for the petitioner has submitted that the petitioner has rendered 17 years of long service and her case is required to be considered sympathetically, since this Court in the order dated 23.09.2010 passed in Special Civil Application No.10601 of 2010 has observed that the petitioner in fact was defrauded by the institution by issuing mark-sheet. Finally, it is submitted by learned senior advocate Mr. Finally, it is submitted by learned senior advocate Mr. Shalin Mehta that the impugned order dated 29.11.2011 refers to the criminal case which was pending against the petitioner for denying the request of reinstatement/ appointment for the lower post. He has submitted that vide order dated 31.12.2016 passed in Criminal Case No.6255 of 2007 by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, the petitioner has been acquitted in the criminal case and hence, the case of the petitioner is required to be considered and the respondents may be directed to consider the case of the petitioner for appointment to the lower post. 4. In the present case, the petitioner has been terminated from the service on the ground of production of fake certificate of B.Ed. issued by the Sampurnanand University, Varanasi. The petitioner was appointed as an Assistant Teacher in the respondent- School with effect from 11.06.1990 and on the instructions issued by the State Government, the authenticity of the degrees of the candidates who have obtained the same from the university out of the Gujarat State was carried out. It appears that the school management asked the petitioner to submit representation on communication from the Sampurnanand University confirming the authenticity of the B.Ed certificate. Since the same was not submitted for considerable long time, the school management ultimately inquired from the said university and the university vide communication dated 20.02.2007 clarified that the certificate of the B.Ed produced by the petitioner was fake and was not issued by the University. 5. The termination of the petitioner was challenged by filing the Application No.270 of 2007 before the Gujarat Secondary Education Tribunal at Ahmedabad. By the judgment and order dated 14.07.2010, the said application of the petitioner was dismissed. The same was challenged by the petitioner by filing Special Civil Application No.10601 of 2010 before this Court. By the order dated 23.09.2010 this Court did not entertain the said petition by observing thus : “3.0 In light of that, the case of the petitioner cannot be entertained by this Court. 4.0 At the request of learned advocate Mr. Shalin Mehta for the petitioner, it is observed that prima facie, it is a case of defrauding the petitioner in making her to pursue the studies for ‘Shiksha Shastri’ (B.Ed.) and issuing mark sheet in her name. 4.0 At the request of learned advocate Mr. Shalin Mehta for the petitioner, it is observed that prima facie, it is a case of defrauding the petitioner in making her to pursue the studies for ‘Shiksha Shastri’ (B.Ed.) and issuing mark sheet in her name. It goes without saying that the said act of committing fraud with the petitioner is required to be condemned and it is accordingly condemned and it will be open for the petitioner to take recourse to the remedy available to her under the law.” 6. The Court has observed that it would be open for the petitioner to take recourse to the remedy available under the law. Again the petitioner approached the Tribunal by filing the Application No.192 of 2010 by praying that she may be allowed to continue in service till she completes the education in B.Ed. By the judgment dated 06.07.2011 passed in the Application No.192 of 2010, the Tribunal disposed of the same on the statement of the learned advocate for the applicant for filing appropriate representation before the respondent authority and that may be considered sympathetically. Accordingly, the Tribunal directed the Joint Director of Education (Secondary) to render a decision on the representation of the applicant with due sympathy and in accordance with law. Pursuant to the aforesaid direction, by the impugned order dated 29.11.2011 the Joint Director rejected the representation of the petitioner by observing that since the petitioner had obtained the appointment on fake degree and the criminal case is pending, her request for reinstatement is rejected. 7. In the considered opinion of this Court, the order passed by the respondent-Joint Director dated 29.11.2011 is legal and proper and does not require any interference by this Court, since the petitioner has remained unsuccessful in the earlier round of litigations. Her Application No. 270 of 2007 was dismissed by the Tribunal vide order dated 14.07.2010, which was challenged by the petitioner before this Court by filing Special Civil Application No. 10601 of 2010 and the same was also not entertained. Her Application No. 270 of 2007 was dismissed by the Tribunal vide order dated 14.07.2010, which was challenged by the petitioner before this Court by filing Special Civil Application No. 10601 of 2010 and the same was also not entertained. Thus, the direction issued by the Tribunal in the subsequent order dated 06.07.2011 in Application No.192 of 2010 directing the respondent- Joint Director to take decision on the representation of the petitioner cannot revive the cause of reinstatement or setting aside the termination merely because the Tribunal has directed to consider the case of the petitioner sympathetically and in accordance with law. Such observation will not give any right to the petitioner of being appointed to the lower post. It is pertinent to note that in the earlier Application No.270 of 2007 filed by the petitioner before the Tribunal, the petitioner had never urged the Tribunal to appoint her on the lower post. Similarly, in the writ petition filed by her being Special Civil Application No.10601 of 2010 which was not entertained, no such prayer was made. The case of the petitioner cannot be considered for appointment to a lower post since the employee has right to get reinstated only on such post on which he or she was terminated. The petitioner cannot as a matter of right claim reinstatement on the lower post on the foundation of the observations made by the Court as well as the Tribunal in the orders dated 23.09.2010 and 06.07.2011, respectively. 8. The petitioner cannot also as a matter of right claim reinstatement on the basis of her acquittal in the criminal case, since she may not be held responsible for forgery, but the fact remains that the institute which has purported to have issued such certificate does not exist. Even if it is held that the petitioner is not responsible for making of the fake certificate and she was defrauded by the concerned institution which had issued such certificate, the same will not give any prerogative to the petitioner for claiming appointment on such certificate which is illegal in the eyes of law. Unquestionably if the petitioner was defrauded by issuance of the certificate by the concerned University, the appointment cannot be claimed either on the original post or on the lower post. Unquestionably if the petitioner was defrauded by issuance of the certificate by the concerned University, the appointment cannot be claimed either on the original post or on the lower post. As observed by the Co-ordinate Bench of this Court in the order dated 23.09.2010 passed in Special Civil Application No.10601 of 2010 that it would open for the petitioner to take recourse to the remedy available to her under the law; the petitioner can either file criminal case against the institution or file appropriate proceedings for damages. Under the circumstances, in light of the aforesaid observations, the writ petition fails legal scrutiny and the same is dismissed. Rule is discharged.