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Gujarat High Court · body

2020 DIGILAW 119 (GUJ)

Dharmarajsinh G. Zala v. State of Gujarat

2020-01-21

A.P.THAKER, S.R.BRAHMBHATT

body2020
ORDER : S.R. BRAHMBHATT, J. 1. The present petitions have been taken out for the following relief’s, by way of Public Interest Litigation in respect of the serious irregularity in the matter of appointment of 'Vahivati Sahayak' in the respondent school, which are grant-in-aid schools. Prayer of Writ Petition (PIL) No.200 of 2016 (A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Resp. No.1 Government to inquire into the matter of appointments made pursuant to the advertisement published in “Pagdandi” news paper; (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Resp. No.1 Government to punish the respondent officers for the illegality and irregularity committed by them; (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the appointment order of Resp. No.7 Dangar Satishkumar Kalubhai; (D) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Government to set up an inquiry against the respondent officers and the school authorities and to submit a report thereof before this Hon'ble Court; (E) Pending admission, hearing and final disposal of the present petition, be pleased to direct the respondent authorities to produce the original record of the interview process before this Hon'ble Court; (F) Pending admission, hearing and final disposal of the present petition, be pleased to direct the Resp. No.5 school authority to restrain the Resp. No.7 from attending his duty and to stop paying salary to the Resp. No.7; (G) 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. Prayer of Writ Petition (PIL) No.201 of 2016 (A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Resp. No.1 Government to inquire into the matter of appointments made pursuant to the advertisement published in “Pagdandi” news paper; (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Resp. No.1 Government to inquire into the matter of appointments made pursuant to the advertisement published in “Pagdandi” news paper; (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Resp. No.1 Government to punish the respondent officers for the illegality and irregularity committed by them; (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the appointment order of Resp. No.7 Dhakecha Mukeshkumar Parshottam; (D) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Government to set up an inquiry against the respondent officers and the school authorities and to submit a report thereof before this Hon'ble Court; (E) Pending admission, hearing and final disposal of the present petition, be pleased to direct the respondent authorities to produce the original record of the interview process before this Hon'ble Court; (F) Pending admission, hearing and final disposal of the present petition, be pleased to direct the Resp. No.5 school authority to restrain the Resp. No.7 from attending his duty and to stop paying salary to the Resp. No.7; (G) 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. 2. Facts in brief, as could be gathered from the petitions and required only for the purpose of deciding the controversy deserve to be set out as under: Facts of Writ Petition (PIL) No.200 of 2016 2.1 It is the case of the petitioner that he came to know from the reliable sources from the office of the District Education Officer that the government has decided to appoint 'Vahivati Sahayak' (Junior Clerk) in the granted secondary schools where there were no clerk and therefore the government has granted NOC to 17 schools and out of these 17 schools, 11 schools including respondent no.5 school, have already initiated the proceedings for filling up the post. 2.2 It is submitted that for this purpose, the District Education Officer, Bhavnagar has formed a committee consisting of District Education Officer, Principal of concerned school, Sarpanch of the concerned Gram Panchayat, Principal of some other school as an outsider educationalist and the district social welfare officer. 2.2 It is submitted that for this purpose, the District Education Officer, Bhavnagar has formed a committee consisting of District Education Officer, Principal of concerned school, Sarpanch of the concerned Gram Panchayat, Principal of some other school as an outsider educationalist and the district social welfare officer. As per the procedure, the advertisement was required to be published in two leading news papers having wide circulation in the area and thereafter the suitable candidates are required to be called for interview through employment exchange and after selection it is approved by the district education officer and the appointment order is issued to the selected candidate. 2.3 In the present case, the respondent no.5 school which is a grant-in-aid secondary school, was granted NOC by a letter dated 06.08.2015 by district education officer for filling up the post. The committee was formed by the district eduction officer consisting of education inspector and respondent nos.5, 6, 8 and 9. It is the say of the petitioner that the committee members joined the hands and made a conspiracy to appoint their favourable person. After obtaining the NOC, concerned Sarpanch requested the district education officer by a letter dated 16.09.2015 to complete the procedure for giving advertisement in the prescribed proforma in the daily news paper. The DEO Bhavnagar on the same day by letter dated 16.09.2015 informed the Deputy Director of Information, Bhavnagar to publish the advertisement for the vacancy of Vahivati Sahayak in the respondent school and the necessary bill may be sent to the school authority. The Deputy Director of Information on the very same day informed the editor of 'Pagdandi' news paper and as per the record of the DEO, the same was published in the Pagdandi news paper, Bhavnagar edition on 17.09.2015. The said news paper was received by the petitioner under Right to Information Act. 2.4 As per the say of the petitioner, in fact, no such advertisement was published in the said news paper and by joining hands together manipulated the documents. As per the say of the school authority and the respondents pursuant to the aforesaid advertisement 32 applications were received and 30 names were called from the employment exchange, Bhavnagar. The interview was held on 01.03.2016. No marks were given to any of the candidates nor was any merit list prepared. In the Rojas proceedings, signatures of concerned were taken and were shown as present. The interview was held on 01.03.2016. No marks were given to any of the candidates nor was any merit list prepared. In the Rojas proceedings, signatures of concerned were taken and were shown as present. The social welfare officer was not present. However, the Rojas was prepared and the same was sent to the DEO by a letter dated 05.05.2016. Approval was given given by the DEO. As per the say, in the present case, without verifying the documents and by conspiracy, respondent no.7 was selected, whose name was fixed up in advance by the management and all the respondent officers. The principal by letter dated 01.03.2016 gave a certificate that 32 candidates who remained present in the interview had not asked for attendance certificate and therefore it is not issued to any of the candidates and the certificate of presence is not produced. The DEO by a letter dated 05.05.2016 granted the approval for appointment of respondent no.7 and pursuant to the same, the appointment was given to respondent no.7. 2.5 As per the say of the petitioner, when it was noticed through reliable sources from the office of DEO that irregularity and illegality has been committed in the appointment of Vahivati Sahayak, the petitioner requested under Right to Information Act on 16.03.2016 from the DEO for the details of respondent no.5 school. In the aforesaid details, the petitioner was provided with the advertisement published in the 'Pagdandi' daily news paper dated 17.09.2015. The advertisement which was provided by the office of the DEO was totally different than the real news paper. Therefore, immediately, the petitioner under RTI Act requested for certain details from the respondent no.5 school by letter dated 12.05.2016. However, the respondent no.5 gave incomplete details. When the advertisement was found faulty, the petitioner by letter dated 16.05.2016 asked for necessary details from the office of the Deputy Director of Information. Pursuant to the aforesaid application, details were provided that out of 11 advertisement which were requested to be published from the office of the DEO, 8 advertisements were published in 'Pagdandi' news papers whereas remaining 3 advertisements were published in 'Saurashtra Samachar' and Sandesh' daily news papers. As per the say of the petitioner the 'Pagdandi' news paper on 17.09.2015 supplied by the respondent authority is altogether different than the original paper wherein there were no such advertisement published. Hence, the present Public Interest Litigation. As per the say of the petitioner the 'Pagdandi' news paper on 17.09.2015 supplied by the respondent authority is altogether different than the original paper wherein there were no such advertisement published. Hence, the present Public Interest Litigation. Facts of Writ Petition (PIL) No.201 of 2016 2.1 It is the case of the petitioner that he came to know from the reliable sources from the office of the District Education Officer that the government has decided to appoint 'Vahivati Sahayak' (Junior Clerk) in the granted secondary schools where there were no clerk and therefore the government has granted NOC to 17 schools and out of these 17 schools, 11 schools including respondent no.5 school, have already initiated the proceedings for filling up the post. 2.2 It is submitted that for this purpose, the District Education Officer, Bhavnagar has formed a committee consisting of District Education Officer, Principal of concerned school, trustee of the trust, principal of some other school as an outsider educationalist and the district social welfare officer. As per the procedure, the advertisement was required to be published in two leading news papers having wide circulation in the area and thereafter the suitable candidates are required to be called for interview through employment exchange and after selection it is approved by the district education officer and the appointment order is issued to the selected candidate. 2.3 In the present case, the respondent no.5 school which is a grant-in-aid secondary school, was granted NOC by a letter dated 06.08.2015 by district education officer for filling up the post. The committee was formed by the district eduction officer consisting of education inspector and respondent nos.5, 6, 8 and 9. It is the say of the petitioner that the committee members joined the hands and made a conspiracy to appoint their favourable person. After obtaining the NOC, concerned trustee requested the district education officer by a letter dated 23.09.2015 to complete the procedure for giving advertisement in the prescribed proforma in the daily news paper. The DEO office on the same day by letter dated 28.09.20125/05.05.2015 informed the Deputy Director of Information, Bhavnagar to publish the advertisement for the vacancy of Vahivati Sahayak in the respondent school and the necessary bill may be sent to the school authority. The DEO office on the same day by letter dated 28.09.20125/05.05.2015 informed the Deputy Director of Information, Bhavnagar to publish the advertisement for the vacancy of Vahivati Sahayak in the respondent school and the necessary bill may be sent to the school authority. The Deputy Director of Information 13.10.2015 informed the editor of 'Pagdandi' news paper and as per the record of the DEO, the same was published in the Pagdandi news paper, Bhavnagar edition on 14.10.2015. The said news paper was received by the petitioner under Right to Information Act. 2.4 As per the say of the petitioner, in fact, no such advertisement was published in the said news paper and by joining hands together manipulated the documents. As per the say of the school authority and the respondents pursuant to the aforesaid advertisement 12 applications were received and 30 names were called from the employment exchange, Bhavnagar. The interview was held on 02.02.2016, wherein all the members as committee members were present. No marks were given to any of the candidates nor was any merit list prepared. However, the Rojkam was prepared and the same was sent to the DEO by a letter dated 24.04.2016. Approval was given by the DEO. As per the say, in the present case, without verifying the documents and by conspiracy, respondent no.7 was selected, whose name was fixed up in advance by the management and all the respondent officers. The principal has given a certificate that those 15 candidates who remained present in the interview had not asked for attendance certificate and therefore it is not issued to any of the candidates and the certificate of presence is not produced. The DEO by a letter dated 24.04.2016 granted the approval for appointment of respondent no.7 and pursuant to the same, the appointment was given to respondent no.7. 2.5 As per the say of the petitioner, on the date of interview one Chavda Jitesh Balubhai was present and got 26 marks. However, he was shown as absent so that the respondent no.7 who got only 15 marks, could be appointed. The said Chavda Jitesh Balubhai has filed an affidavit made before Talaja Mamlatdar on 14.03.2016 and personally produced before the DEO on 15.03.2016, that though he was present, he is shown absent. However, he was shown as absent so that the respondent no.7 who got only 15 marks, could be appointed. The said Chavda Jitesh Balubhai has filed an affidavit made before Talaja Mamlatdar on 14.03.2016 and personally produced before the DEO on 15.03.2016, that though he was present, he is shown absent. It is the say of the petitioner that other two candidates who obtained 18.4 marks and 16 marks, though were present, were shown as absent so that the respondent no.7 who got only 15 marks could be appointed. As per the say of the petitioner that on the date of interview, employment exchange had sent 30 names and out of those 30 candidates, none of them is given marks of graduation, only 15 candidates were shown as present which is contrary to the record. 2.6 As per the say of the petitioner, when it was noticed through reliable sources from the office of DEO that irregularity and illegality has been committed in the appointment of Vahivati Sahayak, the petitioner requested under Right to Information Act on 16.03.2016 from the DEO for the details of respondent no.5 school. In the aforesaid details, the petitioner was provided with the advertisement published in the 'Pagdandi' daily news paper dated 14.10.2015. The advertisement which was provided by the office of the DEO was totally different than the real news paper. Therefore, immediately, the petitioner under RTI Act requested for certain details from the respondent no.5 school by letter dated 12.05.2016. However, the respondent no.5 gave incomplete details. When the advertisement was found faulty, the petitioner by letter dated 16.05.2016 asked for necessary details from the office of the Deputy Director of Information. Pursuant to the aforesaid application, details were provided that out of 11 advertisement which were requested to be published from the office of the DEO, 8 advertisements were published in 'Pagdandi' news papers whereas remaining 3 advertisements were published in 'Saurashtra Samachar' and Sandesh' daily news papers. As per the say of the petitioner the 'Pagdandi' news paper on 14.10.2015 supplied by the respondent authority is altogether different than the original paper wherein there were no such advertisement published. Hence, the present Public Interest Litigation. 3. As per the say of the petitioner the 'Pagdandi' news paper on 14.10.2015 supplied by the respondent authority is altogether different than the original paper wherein there were no such advertisement published. Hence, the present Public Interest Litigation. 3. Learned counsel appearing for the petitioner submitted that the newspaper copy supplied to him by the authority under the R.T.I. Act from the office of District Education Officer contains the copy of the newspaper item which contains the advertisement and the newspaper copies which he has preserved would indicate that there was no such advertisement inviting applications from the aspirants for the post of Vahivati Sahayak. 4. The substantive submission is in respect of recruitment of respondent no.7 in the schools by putting up a show as if there is advertisement and infact advertisement was not issued and the appointments were issued. The respondent no.4 is a publisher of the newspaper called 'Pagdandi' and the advertisements are said to have been issued in that newspaper daily of 17.09.2015 and 14.10.2015. 5. The copies of the newspaper page produced by the petitioner during the course of argument was shown to all and all the counsels are of the view that the newspaper pages produced by the petitioner do not contain the advertisement, whereas, the copy supplied to the petitioner by the authority contains the advertisement. 6. The copies have been taken on record. They have to be now forming part of the proceedings. The registry is to preserve these copies so that the same be produced to the concerned authority as and when the same are required. The documents, except the order, be preserved by the Registrar General in a safe custody. 7. This Court is of the considered view that when the counsel for the respondent no.4 despite given opportunity time and again could not produce the copy of the newspaper page containing the advertisement, there appears to be a strong suspicion about the non publication of the advertisement in question. We hasten to add here that we are not expressing any opinion about veracity of the allegations or otherwise, but the petitioner has made out a case for ordering appropriate probe at the level of Director of Education and he is to undertake the inquiry into this aspect. We hasten to add here that we are not expressing any opinion about veracity of the allegations or otherwise, but the petitioner has made out a case for ordering appropriate probe at the level of Director of Education and he is to undertake the inquiry into this aspect. The petitioner is permitted to make appropriate representation to the said Director of Education and after hearing all the concerned the said Director of Education shall come to conclusion about veracity or otherwise of the allegations of the petitioner and in case if the fraud is found to be committed, then he shall take appropriate action including lodging a police complaint in accordance with law with the appropriate police authorities. 8. Learned Assistant Government Pleader has produced five officers' name and submits that out of whom the inquiry could be entrusted to anyone, which are as under: (i) Mr. D.P. Desai, Director (ii) Mr. S.J. Patel, Joint Director (iii) Mr. H.N. Chavda, Joint Director (Primary Education) (iv) Mr. H.C. Patel, Joint Director (Accounts) (v) Dr. B.C. Solanki, Deputy Director (Education) 9. We are of the view that let the inquiry be conducted by all the three i.e. Director – Shri D.P. Desai, Joint Director – Shri S.J. Patel and Joint Director – Shri H.N. Chavda in respect of the allegations made in the petition. The Registrar General is requested to preserve these matters and especially the newspaper page, which is placed on record today by the counsel in a safe custody and be made available to the inquiry officers as and when required. 10. The entire inquiry be completed as expeditiously as possible preferably within 90 days from the date of receipt of writ of this Court. The Court has not opined on merits or otherwise of the matter. However, as the respondent no.4 failed in producing the requisite newspaper page containing advertisement, despite the time given, the Court was infact of the view that the inquiry ought to have been conducted by appropriate officers and thus the inquiry is entrusted. Therefore, it would be open for all the concerned respondents including respondent no.7 and the petitioner to make out their cases before the said committee of officers and the officers shall come to a conclusion without being influenced or prejudiced by the present order. 11. Therefore, it would be open for all the concerned respondents including respondent no.7 and the petitioner to make out their cases before the said committee of officers and the officers shall come to a conclusion without being influenced or prejudiced by the present order. 11. It goes without saying that in case if prima facie material is available to indicate that the petitioner's contention is correct and justified, then appropriate action under the Criminal Procedure Code also deserves to be initiated against the concerned. With the above directions, the petitions are disposed of. All grounds are kept open.