Gujarat High Court
Virendrasinh J. Thakur vs State Of Gujarat on 13 August, 2025
NEUTRAL CITATION
C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15441 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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VIRENDRASINH J. THAKUR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner
MS DHWANI R TRIPATH, AGP for the Respondent(s) No. 1 - State
SERVED BY AFFIX. (R) for the Respondent(s) No. 2 - School Management
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/08/2025
ORAL JUDGMENT
1. The present petition, under Articles 226 and 227 of the Constitution of India, is filed by the petitioner with the following main prayers.
"10A. Your Lordships may kindly be pleased to issue a writ of certiorari and/or any other appropriate writ, order and direction to quash and set aside the impugned order passed by the Gujarat Secondary Education Tribunal, Ahmedabad dated 21/22.02.2008 in Application Nos.227 of 2006 and 176 of 2007 at Page 1 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Annexure A to this petition.
B. Your Lordships may kindly be pleased to held and declare that the order dated 17.02.2007 passed by the present respondent No.1 District Education Officer is illegal, unjust, arbitrary and discriminatory.
C. Your Lordships may kindly be pleased to direct the present respondent No.1 District Education Officer to declare the present petitioner as a surplus employee as per the rules and regulations and further be pleased to direct the present respondent No.1 to accommodate the present petitioner in other school or education institution in Ahmedabad City.
D. Your Lordships may kindly be pleased to direct the present respondent No.1 to pay the regular salary to the present petitioner and further be pleased to direct the present respondent No.1 to pay the arrears of salary with effect from August, 2004 till date, to which the present petitioner is entitled to.
E. Pending hearing and final disposal of this petition, Your Lordships may kindly be pleased to direct the present respondent Nos.1 and 2 to pay the regular salary to the present petitioner."
2. The facts of the case, as noted by the Tribunal, are epitomized as under.
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NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined 2.1 The Shantiniketan Education Trust runs a secondary school in the name and style of Shantiniketan Hindi High School in Odhav area of Ahmedabad City. The said school is a registered private secondary school and is fully aided by the State Government. The Government has recognised the school as a linguistic minority institution. The petitioner was initially appointed as Junior Clerk on 20.07.1987. He was promoted to the post of Senior Clerk w.e.f. 15.06.1989 and then promoted as Head Clerk w.e.f. 15.06.1991. He was working, as such, in the school till its closure.
2.2 His appointment is approved by the District Education Officer ('the DEO' for short) and he has received his salary from the Government grant till 14.07.2004. 2.3 Two teachers of the School lodged a complaint with the Vigilance Commissioner, Gujarat State, Gandhinagar about the large-scale illegalities and fraud practiced by the school Management. Upon receipt of the said complaint from the office of the Vigilance Commissioner, the sleuths of Education Department have, on 12.04.2004, raided the school premises and found out several illegalities. Page 3 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025
NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined 2.4 On the basis of the report submitted by the Inspecting Team, the Commissioner of Schools has passed an order on 14.07.2004 in exercise of powers under Rule 95 of Grant In Aid Code and has withheld complete grant to the school. The Commissioner has also ordered prosecution of two employees i.e. the present petitioner and other one, so also the trustees). The Commissioner has observed in his order that by showing the inflated strength of pupils (ghost students), the school has got more classes and appointed several teachers, most of whom happened to be the relatives of trustees. By showing the inflated strength of pupils, the management has obtained grant from the Government and there was a large-scale fraud. It is also in the order of the Commissioner that several employees were not even attending the school but the salaries were being regularly assessed etc. 2.5 Pursuant to the said order, an FIR bearing C.R. No.503 of 2004 dated 28.10.2004 came to be filed in the Odhav Police Station, Ahmedabad City against the Trustees and others, including the present petitioner for the offences punishable u/s.406, 409, 420, 467, 468, 470, 471, 120(b) of Indian Penal Code .
2.6 On the basis of the above-referred order of the Commissioner of Schools, the Gujarat Secondary and Higher Page 4 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Secondary Education Board has vide order dated 08.12.2004 cancelled the registration of the school. 2.7 Feeling aggrieved by these orders, the school management has filed Special Civil Application No.16742 of 2004 before this Court challenging the order of the Commissioner of Schools dated 14.07.2004 and the order of the Gujarat Secondary Education Board dated 08.12.2004. 2.8 The Coordinate Bench of this Court, vide judgment and order dated 03.01.2005, has quashed the order of the Board dated 08.12.2004 and has not disturbed the order of the Commissioner of Schools dated 14.07.2004, as the alternative remedy was available to the petitioner. 2.9 Education Department has, vide order dated 08.06.2005, decided the school's appeal against the order of the Commissioner of Schools dated 14.07.2004 by making certain modifications.
2.10 Again, on 23.03.2005, the Gujarat Secondary and Higher Secondary Education Board has cancelled the registration of the school.
2.11 In appeal against the said order, Education Page 5 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Department has, vide order dated 26.07.2005, quashed the Board's above-referred order.
2.12 Meanwhile, the Trustees and the other accused persons, including the present petitioner, have preferred a Criminal Misc. Application No.11454 of 2004 before this Court seeking quashment of the above-referred FIR. 2.13 In the said application, the Coordinate Bench of this Court has, on 03.02.2006 and on 07.02.2006, passed some orders marking serious observations against the school management, so also the Education Department. However, on 27.02.2006, the said application has been withdrawn by the applicants, including the present petitioner. 2.14 Thereafter, on 24.02.2006, the Education Department has cancelled its order dated 26.07.2005 and considering the illegalities of the School Management and the observations of this Court, cancelled the registration of the school.
2.15 It appears that this order of the Education Department is assailed by the School Management by filing Special Civil Application No.4103 of 2006 before this Court, which is dismissed by the Coordinate Bench of this Court Page 6 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined vide order dated 06.02.2018.
2.16 The applicants have, thereafter, on 21.02.2006, surrendered themselves before the Odhav Police Station. 2.17 They have thereafter filed a Criminal Misc. Application No.6217 of 2006 before this Court for bail and were enlarged on bail vide order dated 21.07.2006 and from 25.07.2006, they are set to liberty.
2.18 After cancelling the registration of the school vide order dated 24.02.2006, vide order dated 11.03.2006, the DEO has instructed the employees of the closed school to mark their presence temporarily in Gayatri Vidyavihar, Khodiyarnagar, Odhav.
2.19 As narrated earlier, from 21.02.2006 to 25.07.2006, the petitioner was in jail. After their release from jail, on 01.09.2006, he went to Gayatri Vidyavihar reporting for duty, but the Head Master of the school has not allowed him to join and, therefore, according to him, he has made representations to the DEO on 11.09.2006, 15.09.2006 and 19.09.2006.
2.20 When the registration of an aided private Page 7 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined secondary school is cancelled, under the Government guidelines, the DEO is required to hold hearing of the employees of the school and then pass orders of granting them the protection of surplus according to their eligibility and Government guidelines. The DEO has accordingly held hearing and vide his order dated 16.09.2006, granted protection of surplus to 33 employees, whereas the petitioner and one another person were not given the said benefit on the ground that these employees were involved in the fraud and for which criminal cases against them are pending. 2.21 It appears that thereafter also, the petitioners has made representation to the Management and some correspondence between the Management and the DEO took place. The DEO has, therefore, again held a hearing on 08.02.2007 for taking decision in regard to the petitioner. The DEO has, vide his order dated 17.02.2007, again declined to extend protection of surplus to the petitioner, mainly on the ground that he was one of the parties to the large-scale fraud and he was in the police custody for about 5 months and, therefore, departmental actions are required to be taken against the petitioner by the Management, which has not been done.
2.22 It transpires that this order of the DEO was Page 8 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined assailed by the petitioner and others before this Court in Special Civil Application No.8230 of 2007 and the Coordinate Bench of this Court has disposed of the said petition vide order dated 28.03.2007 on the ground of availability of statutory alternative remedy.
2.23 Thus, two orders passed by the DEO : (i) dated 16.09.2006 and (ii) dated 17.02.2007 declining to grant protection of surplus to the petitioner are the subject-matter of challenge before the Gujarat Secondary Education Tribunal, Ahmedabad by filing Applications No.227 of 2006 and 176 of 2007.
2.24 The Tribunal has, vide impugned order dated 21/22.02.2008, after considering the material on record, submissions made by the learned advocates for the respective parties, provisions of law and keeping in mind the ratio laid down by the Hon'ble Apex Court, rejected the said applications.
2.25 It is this order impugned, which is challenged by the petitioner before this Court in this petition and under these factual background, this petition has heard and decided this petition today.
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NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined
3. Heard learned advocates. Without the consent of the learned advocates appearing for the respective parties, the present petition is taken up for hearing and final disposal today by this Court, as the pleadings are completed by the parties.
4. It is noted that though served respondent No.2 - Managing Trustee of Shantiniketan Education Trust has chosen not to appear and contest this petition before this court.
5. Learned advocate Mr. Vaibhav Vyas for the petitioner has submitted that the Tribunal has failed to appreciate the documentary evidences available on record; and that the findings recorded by the Tribunal are contrary to the provisions of the Gujarat Secondary Education Act, Grant in Aid Code, 1964 and contrary to the Resolution / Notification of the Government of Gujarat; and that the Commissioner, Mid-day Meal and School had never informed to the District Education Officer - respondent No.1 to lodge the complaint against the petitioner; and that the petitioner is falsely implicated in the alleged offence; and that respondent No.2 - Management has decided not to initiate the departmental proceedings against the petitioner till the criminal trial is concluded; and that since the registration of Page 10 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined school has been cancelled, it is incumbent on the part of the respondent No.1 authority to declare the petitioner as a surplus employee and he should be accommodated in other school; and that findings recorded by the Tribunal is contrary to the ratio laid down by the Hon'ble Apex in the case of Board of Secondary Education and Teachers Training versus Joint Director of Public Instructions, Sagar reported in (1998) 8 SCC 555 and in the case of Yunus Ali Sha versus Mohamed Abdul Kalam reported in AIR 1999 SC 1377; and that the Tribunal has not properly taken into consideration the fact that the order dated 17.02.2007 passed by the DEO is arbitrary and discriminatory; and that as per the rules and regulations, the DEO is bound to pay the salary to the petitioner; and that without any justification or reason, the salary of the present petitioner has been withheld by the DEO; and that the DEO has already considered the other Co-employees and they have declared as surplus and accordingly accommodated in other schools; and that since the present respondent No.2 - School is closed down, in view of the cancellation of registration, such contention has not been accepted by the Tribunal; and that administrative discretion should not be discriminatory and arbitrary; and that there is no base or evidence to decline the benefit on the ground of pendency of the prosecution; and that the Tribunal has not properly appreciated the ratio laid down by the Hon'ble Apex Page 11 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Court in the case of Jairajbhai Jayantibhai Patel versus Anilbhai Jayantibhai Patel reported in (2006) 3 GLH 227. He has submitted that the present petition may be allowed.
6. Per contra, learned AGP Ms.Dhwani Tripathi for the State Authorities has vehemently opposed this petition. He has drawn the attention of this Court towards the affidavit in reply filed by respondent No.1 - DEO and has submitted that the petitioner was appointed as Junior Clerk vide appointment order dated 20.07.1987 and vide order dated 15.06.1989, the petitioner was appointed as senior clerk and thereafter, the petitioner was given appointment as Head Clerk vide order dated 15.06.1991; and that the respondent authority has not ratified the appointment of the petitioner at the post of Senior Clerk and Head Clerk; and that the promotion to the petitioner was never informed to the office of the District Education Officer; and that on the receipt of the complaint, the District Education Officer, Bhavnagar and Junagadh undertook a combined scrutiny of the working of the said school and in its report to the Director of Schools, it was brought to the notice of the authorities that at around 10 relatives of the Trustees are appointed as Clerk, Principal, Assistant Teacher and Peon; and that among which, the petitioner is younger son of the Managing Trustee; and that there were various charges which were subsequently proved Page 12 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined and therefore, after giving opportunity of hearing, the Commissioner of Schools passed an order dated 14.06.2004, wherein, it came to be decided that a police complaint be lodged against the Administrator of the said school; and that Education Officer accordingly, at that given point of time, filed an FIR against the petitioner and others before the Odhav Police Station; and that the respondent authority declared a list of surplus teachers on 16.09.2006, but, as the present petitioner was in custody at that given point of time, the petitioner was not to be included in the list of surplus teacher; and that the Governing Body of the school has not taken any departmental inquiry against the petitioner, which is required as per the Grant in Aid Code; and that in fact, the Governing Body of the said School decided to reinstate the petitioner in the said school; and that such decision of the Governing Body was not accepted by the respondent authority and therefore, the decision not to declare the petitioner as surplus was taken; and that the Governing Body of a closed School reinstated the petitioner, the time period which is shown as working by the petitioner from 31.08.2006 cannot be counted as effective service; and that since there is a criminal case pending against the petitioner and no inquiry or punitive action is taken against the petitioner, the petitioner cannot be granted protection of surplus and cannot be accommodated in any educational Page 13 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Institute of Ahmedabad. She has submitted that this petition may be dismissed.
7. In rejoinder, learned advocate Mr.Vyas for the petitioner has submitted that the District Education Officer had included the petitioner in the list of Direct Salary Scheme as per the appointment order dated 15.06.1991; and that the petitioner was working as Head Clerk at the relevant point of time; and that upon closure of a school, as per the rules, an employee is required to be declared as surplus and is required to be absorbed in any other school; and that after being released on bail, the petitioner had approached the Gayatri Vidyavihar for the purpose of joining of service, but as he was not permitted to join the service, he had made representation/s to the respondent authorities for taking appropriate action in this regard; and that the Management of the School has paid the amount of so-called pecuniary loss to the Government and thus, there is no financial loss to the Government; and that merely, because the petitioner was in custody at the relevant point of time, is not a ground not to extend the benefit of the policy of the Government, which is otherwise available to an employee, who is serving in a school, which has been closed; and that upon the release of the petitioner on bail, he was also required to be extended the benefit of the policy of the Page 14 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Government by declaring him as surplus and was required to be absorbed in any other school; and that the respondent authority has declined to declare the petitioner as surplus; and that since the criminal prosecution was already initiated against the petitioner, the Management of the School did not initiate any action against the petitioner under the provisions of the Grant in Aid Code; and that in view of the fact that the absorbed and surplus employees, who are closely related to the Management of the school, have given the benefit of being declared as surplus and the benefits are granted in their favour; and that the petitioner would have rendered more than 34 years of service which would entitle to him to full pension and other allowances. He has submitted that this petition may be allowed.
8.1 I have considered the rival submissions made by the learned advocates for the respective parties. I have perused the documents available on record, including the impugned order, affidavit in reply as well as affidavit in rejoinder. From the record, it transpires that the petitioner is the younger son of the Managing Trustee. The petitioner was appointed as a Junior Clerk in the office of the school by the Management on 20.07l1987. The petitioner was promoted to the post of Senior Clerk on 15.06.1989 and also was promoted to the post of Head Clerk on 15.06.1991. His Page 15 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined appointment was by way of a regular employment after following due procedure or by way of a back-door entry is not coming on record. However, the way of promotion to the petitioner itself smacks a lot.
8.2 A complaint was made by two teachers of the very school to the Vigilance Commissioner. Pursuant to that complaint, a raid was carried out by the sleuths of the Education Department and submitted their report, whereby it was found that large scale fraud is going on in the school i.e. various appointments of the relatives of the Trustees were made on the various posts like Clerk, Administrator, Principal, Peon, etc., ghost students, dummy teachers and dummy class rooms were found, obtained grant of the Government illegally on that basis, etc. 8.3 In view of that report, the Commissioner of Schools has passed the order under Rule 95 of the Grant-in- Aid Code, withholding complete grant of the school as well as initiating prosecution against the erring persons i.e. the present petitioner and other person/s including the Managing Trustees.
8.3 Consequently, an FIR being C.R. No.504 of 2004 came to be filed before the Odhav Police Station for the Page 16 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined offences punishable under Sections 406, 409, 420, 467, 468, 470, 471 and 120-B of the Indian Penal Code. The accused persons, including the petitioner, were arrested and released on regular bail. Ultimately, the petitioner was remained behind the bars for the period from 21.02.2006 to 25.07.2006. 8.4 In view of the order passed by the Commissioner of Schools noted above, the Gujarat Secondary and Higher Secondary Education Board ('the Board' for short) has cancelled the registration of the school vide order dated 08.12.2004. Feeling aggrieved by the order of the Board as well as order of the Commissioner of Schools, the Management has preferred a petition being Special Civil Application No.16742 of 2004, wherein this Court has, vide order dated 03.01.2005, quashed the order of the Board. However, this Court has confirmed the order of the Commissioner of Schools on the ground of alternative efficacious remedy of appeal available to the Management. The Management filed an appeal before the Education Department, wherein the Education Department has, vide order dated 08.06.2005, made certain modifications in the order of the Commissioner of Schools. Again, the Board has cancelled the registration of the school vide order dated 23.03.2005. Again, the Management has challenged the same in appeal proceedings before the Education Department, Page 17 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined wherein the Education Department has, vide order dated 26.07.2005, quashed the Board's order. 8.5 In view of the FIR, the petitioner and others preferred an application for quashment of the said FIR being Criminal Misc. Application No.11454 of 2004 under Section 482 of the Code of Criminal Procedure, 1973 before this Court, which was ultimately withdrawn by them on 27.02.2006. However, the Coordinate Bench of this Court has, vide orders dated 03.02.2006 and 07.02.2006 observed as under.
"Order dated 03.02.2006 By filing this application under Section 482 of the Criminal Procedure Code, the applicants, who are the trustees of Shantiniketan Education Trust, Ahmedabad, have prayed for quashing FIR, which is at annexureA and registered as C.R.No.I503 of 2004 before Odhav Police Station, Ahmedabad. Said complaint is filed by Education Inspector, D.E.O. Office, Ahmedabad for offences under Sections 406, 409, 420, 467, 468, 479, 471 read with Section 120B of the Indian Penal Code on the ground that the trustees have committed a fraud by preparing false documents and on such false representation grant worth Rs.38,19,921/- is obtained for the period between 17.6.1996 to August, 2004. As per Page 18 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined the allegations made in the F.I.R., salary is paid to certain teachers even though they are not discharging their duties. It is also alleged that about 178 ghost students were found in institution. It is also alleged that some of the employees of the institution are closely related with the trustees.
During the course of hearing, it is
submitted by learned APP that the present
applicants, who are the trustees of the institution are absconding and they have been declared as "absconders" by issuing appropriate declaration.
It is a matter of regret that an
institution, which has kept its name
"Shantiniketan" has indulged in fraudulent and dishonest means in running the institution.
Inspite of the fact that this Court passed an order dated 122006 asking the police inspector to arrest the trustees of the institution and produce them before this Court by issuing a nonbailable warrant, today, MR.R.V.Nandasana, Police Inspector, Odhav Police Station, has informed the Court that he is not in a position to arrest the trustees of the institution and they are absconding and a declaration is also issued in this behalf showing them as "absconders".Page 19 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025
NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined From the record of the case it is found that some of the teachers were attending classes in a drunken condition and relatives of the trustees are employed in service of the institution. The Commissioner of Education (who will hereinafter be referred to as "the Commissioner"
for short) has also given a detailed report in this behalf. It is also noticed by looking to the file that many ghost students are enrolled only for the purpose of taking benefit of salary grant and large public money is squandered away in the matter of payment of grant to the institution. The file of the case reveals a very sorry state of affairs where the Secretary of Education Department has recommended payment of salary grant in favour of such institution where even the trustees are absconding and surprisingly till date the Education Department does not think it fit even to cancel the registration of such an institution. It is difficult to appreciate as to what type of education this institution can impart to the innocent students, whose trustees are declared "absconders" by issuing declaration under the Criminal Law. When it is found that some of the teachers of the institution are attending the classes in a drunken condition, it is not possible for this Court to understand as to why inspite of aforesaid fact, the Education Department of the State has shown a sympathetic view in favour of such institution.
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Education Department, who is present before the Court has submitted that he is agreeing with the report given by the Commissioner regarding loopholes in the educational institution, but he states that ultimately he is required to put appropriate noting as per the submission of the institution and as per the record. In my view, it is not necessary to go in detail and put any embarrassing question to Mr.Dhaduk at this stage in this behalf.
Mr.Pandit, District Education Officer is also present before this Court. He submitted that as per the noting of the Deputy Secretary, Mr.Dhaduk, about Rs.25 Lacs are required to be recovered from the management. He however submitted that a sympathetic view is taken by the Government asking the management to pay only Rs.10 Lacs and remaining amount is to be recovered as per the final decision of the Commissioner. It is pointed out that till today, Commissioner has not taken any final decision as the applicants are not remaining present for hearing. All these things reflects only a sorry state of affairs as to how the Education Department of the State is functioning. It is high time that the things should be put in order by keeping in mind the State Exchequer and it is Page 21 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined the duty of everyone concerned to see that public money is not wasted and squandered away.
Mr.Pandit, District Eduction Officer, further submitted that as per last inspection report about Rs.38 Lacs are required to be recovered from the institution. However, he submitted that he cannot take any action for recovering this amount till the Commissioner takes any final decision in this behalf. It is difficult to understand when the trustees are declared "absconders" by the police, how they will appear before the Commissioner to submit their say and when such final decision will be taken.
Considering the fact that the petitioners (trustees) are absconding and they are declared as "absconders", the police inspector, who is investigating the case is given one more opportunity to find out the whereabouts of such trustees and to arrest them so that such trustees may also understand that they are not above the law of the land. On reading of the file, it reflects a sorry state of affairs at the hands of the Education Department of the State. Nobody has right to pollute the field of education and the same is required to b kept away from all evils of the society.
Matter is accordingly adjourned to 7th Page 22 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined February, 2006 at 11 a.m. to find out whether the police inspector is able to arrest the trustees of the institution, who have been declared absconders. Mr.P.Panirvel, Principal Secretary of Education Department is directed to remain personally present before this Court along with Mr.Dhaduk, Deputy Secretary of Education Department sharp at 11 O' clock on 7th February, 2006 to point out as to what action the State is likely to take against such institution, which has tried to pollute the atmosphere of education system and whose trustees have shown least respect to the rule of law. Looking to the nature of allegations as well as looking to the notings on the file, Principal Secretary of the Education Department may place this file before Honourable the Chief Minister in order to apprise him about the things going on in the Education Department so that he can take appropriate remedial measures for the purpose of purifying the Education Department of the State."
Order dated 07.02.2006 Today, in response to the order of this Court dated 3.2.2006, Principal Secretary of Education Department, Mr.P.Panirvel is present before the Court with other officers. He is represented by Mr.A.D.Oza, learned Public Prosecutor. Principal Secretary of Education Page 23 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Department pointed out to the Court that considering the fact that trustees of the institution are absconding and even a notification is issued in this behalf under Criminal Procedure Code, the State Government has taken a decision to cancel the registration of the institution and also decided to take appropriate steps to recover the money, which is paid to the institution towards the grant. Principal Secretary of Education Department also pointed out that appropriate steps are taken at the Government level to purify the system of education of the State and, therefore, a method is adopted to find out ghost students and ghost teachers in various institutions of the State of Gujarat.
Mr.Oza, learned Public Prosecutor submitted that initially an order for recovery of grant was passed, which order was challenged before this Court by the management by filing a Special Civil Application and in the said Special Civil Application, the Government was asked to hear the management and pass appropriate order in accordance with law. Mr.Oza, also submitted that in appeal, the Government permitted the management to run the institution on certain conditions.
It is required to be noted that in view of subsequent events if the Government has decided Page 24 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined to cancel the registration of the institution, it is always open for the Government to do so in accordance with law. It is also pointed out to the Court that there are serious allegations which are finding place even on the file maintained by the State Government and in view of the fact that the trustees are declared "absconders", State Government is contemplating to cancel the registration of such institution.
Mr.Oza, learned Public Prosecutor pointed out that in appeal without hearing the board or even the school, the management was permitted to run the school by the Government. If that be so, it is still a very sorry state of affair and now it is hoped that the State will put its house in order by passing appropriate order in accordance with law and if any appeal is pending, the same may also be disposed of in accordance with law.
It is submitted by learned Public Prosecutor, an amount of Rs.38 Lacs is required to be recovered from the institution. In my view, the Government should take appropriate steps in order to recover public money as expeditiously as possible. As assured by the Principal Secretary of Education Department, it is hoped that now steps will be taken for smooth administration of the Education Department of the State.
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NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined Since the Principal Secretary has stated that steps are likely to be taken in this matter, now it is not necessary for the Principal Secretary, Education Department and other officers of the Government departments to remain present before this Court, except the investigating officer.
Investigating office has submitted that he is still trying to find out the applicants and he may be given some time.
S.O. to 10th February, 2006."
8.6 In view of the observations made by the Coordinate Bench of this Court, the Board has again cancelled the registration of the school vide order dated 24.02.2006.
9.1 The question before this Court would be that the order of cancelling the registration of the school as well as not to declare the petitioner as surplus, under the above chequered history, is valid or not.
9.2 With regard to the issue of cancellation of registration of the school is concerned, the report submitted by the sleuths of Education Department by raiding the school Page 26 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined premises is relevant. In the report of the said team, it is categorically stated that there was a large scale fraud going on in the school by appointing near relatives in the school on the posts of Clerk, Administrator, Principal, Peon, etc. The petitioner is the best example for it. The petitioner is the younger son of the Trustee. He was appointed as a Clerk and thereafter, within short span of two-two years, he got promotion to the post of Senior Clerk and Head Clerk, respectively, which is a matter for record and undisputed fact. Further, there was ghost students, dummy class rooms and dummy students in the school. Further, the Management was taking government grant under the guise of these illegal activities for many years. Even on approaching this Court by the Management, this Court had not entertained the petition at the relevant point of time. In appeal proceedings also, the Education Department has observed many things against the Management and the petitioner and cancelled the registration of the school. Under the circumstances, this Court finds that the action of cancelling the registration of the school by the authority is just and proper and no interference need to be warranted by this Court.
9.3 With regard to the question of declaring the petitioner as surplus in view of the cancellation of registration of the school is concerned, it is noted that Page 27 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined consequently, the District Education Officer has, vide order dated 11.03.2006, instructed the employees of the closed school to mark their presence temporarily in Gayatri Vidyavihar, Khodiyarnagar, Odhav, Ahmedabad City in view of the surplus scheme evolved by the State Government under such situation. With regard to the petitioner is concerned, the Tribunal has observed in paragraphs 7 and 8 of its judgment, which are as under.
"7. In order to appreciate the controversy in proper perspective, it is apt to notice the surplus scheme evolved by the State Government, which is briefly narrated as under :
The secondary education in the state of Gujarat is regulated by the Gujarat Secondary Education Act 1972 (hereinafter to be referred to as "Act" for brevity). Gujarat Secondary Education Regulations 1974 (hereinafter to be referred to as "Regulations" for brevity) and grant-in-aid Code rules. U/s.31 of the Act the registration of the school with the Board is a condition precedent for running the school. Under the provisions of the Act, Regulations and grant-in-aid Code, if any such school is found to be mismanaging its affairs or is found to be violating the provisions of the Act, Regulations or grant-in-aid Code and/or committing any illegality, it is open for the Gujarat Secondary and Higher Secondary Education Board (to Page 28 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined be referred as "Board" hereinafter for brevity) to cancel the registration of the school. After the Board cancels the registration of the school the right of the employees w/r.33 is to get appropriate compensation mentioned therein. Meaning thereby once the school is closed the employees have to face termination and are only entitled to the compensation as provided u/r.33. However, the state of Gujarat has in the interest of education and with a laudable object to retain good people in the field of education evolved the scheme of surplus. Under this scheme which is to be found in the G.R.s issued time to time, due to closure of a school or reduction of classes, an employee gets protection to his service tenure if he fulfills the conditions stipulated in the guidelines. Meaning thereby even if the school is closed or the classes are reduced rendering the employee without work then also under the scheme of the govt. he need not face termination but the govt. gives him protection of surplus by protecting his all service conditions intact. Such an employee is declared surplus by D.E.O.'s order and then he is absorbed in any other aided school. It, thus, becomes clear that the object of the govt. in extending the benefit of surplus is to retain good talents in the field of education and which is clearly in the interest of education of students in the state. This scheme is not flowing from any statutory provision. From the facts noticed above, it is quite clear that due to the closure of the respdt. school the question of rehabilitation of the employees arose. The Page 29 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined D.E.O. has passed orders granting protection of surplus to as many as 33 employees except the 3 employees out of which two are before this Tribunal. The D.E.O. has declined to give the benefit of surplus to these employees on the ground that these employees happened to be the relatives of the trustees and not only that but they were found to be involved in the fraud played by the management against the state govt. defrauding it to the tune of lakhs of rupees. The D.E.O. has also noted in his order that the prosecution against these two employees is pending. It is also clearly brought on record that the school has got the sanction of more classes and more employees from the state govt. by fraudulently showing the inflated strength of pupils. Meaning thereby the school has shown 178 ghost students who were not there at all. It is pertinent to note at this stage that the strength of classes and the strength of employees depend upon the strength of pupils. In view of these facts, the D.E.O. has felt that the applicants cannot be given the benefit of govt. policy by declaring them surplus. In this context, the arguments advanced on behalf of the applicants about the decision of the D.E.O. being arbitrary and illegal does not commend to me.
8. It is true that as of today there is only allegation against the applicants about their involvement in the fraud. The D.E.O. has declined the benefit to them on the basis of pendency of Page 30 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined prosecution. Having regard to the very object of the scheme of surplus and considering the fact that the applicants are not only the relatives of the trustees but were also the parties to the fraud, I am not persuaded to accept the submission of L.A. for applicants. This is the case of exercising the administrative discretion by the D.E.O. Having regard to the facts and Circumstances of the case and in view of the reason given by the D.E.O., it cannot be said that the discretion exercised by the D.E.O. is either illogical or suffers from procedural impropriety.
Admittedly, before rendering the decision the D.E.O. has given audience to the applicants and he has also given reasons in support of his decision. As many as 33 employees of the school even though many of them happened to be the relatives of the trustees have been given the benefit of surplus as they were not found involved in the seam. I do not find any element of arbitrariness or unreasonableness in the decision of the DEO. Having regard to the object of the govt. policy of surplus, it has to be noted that the said policy is to retain good people in the field of education and not for the persons like the applicants who have allegedly supported the management in showing the inflated strength of students and defrauding the govt. to the tune of lakhs of rupees. It may be noted that under the grant-in-aid code rules one class is available to the school for 50 students and the ratio of teachers provided per class is 1.5. The allegation against the management is that it has Page 31 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined shown 178 ghost students in the school. It, therefore, becomes clear that if the allegation 'is ultimately proved to be right then the school has got the sanction of more than 3 classes illegally. Against 3 classes about 5 teaches were illegally appointed and similarly the non-teaching staff was appointed. All these aspects are required to be inquired into before granting protection to the employees and, therefore, I do not find any arbitrariness or illegality in the decision of the D.E.O."
9.4 Further, the representations made by the petitioner were replied by the respondent authorities vide communication dated 20.12.2006, whereby it was informed to the petitioner that as he was in custody during the publishing of the surplus teachers list, he could not be declared as surplus. Further, it is a matter of record that the petitioner was behind the bars for the period from 26.02.2006 to 25.07.2006. As per the Grant-in-Aid Code 69.7 and 69.10, no inquiry was undertaken against the petitioner and no punitive action was taken and the Governing Body of the said school decided to reinstate the petitioner in said school. The said decision of the Governing Body was not accepted by the respondent authorities. Further, as the Governing Body of a closed school reinstated the petitioner, the time period which is shown as working by the petitioner Page 32 of 33 Uploaded by M.H. DAVE(HC00193) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:16:09 IST 2025 NEUTRAL CITATION C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025 undefined from 31.08.2006 cannot be counted as effective service and therefore, the decision not to declare the petitioner as surplus was taken by the authorities, which is legal and proper and no interference is required by this Court. 9.5 Under the circumstances, the petitioner has criminal history as well as no inquiry or punitive action is taken against the petitioner, he cannot be granted protection of surplus and cannot be accommodated in any educational institute. Further, the scheme of surplus does not flow from any statutory provision. It is the scheme evolved by the State Government with a laudable object to ensure that good people are retained in the field of education and do not run away from the field of education due to frustration of retrenchment owing to the closure of schools or reduction of classes.
10. In view of above, this Court finds that the present petition needs to be dismissed and is dismissed accordingly. Rule is discharged. No order as to costs. Interim relief, if any, stands vacated.
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