Gujarat High Court
Manjulaben Punaji Gameti (Principal) vs State Of Gujarat on 5 April, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/238/2021 ORDER DATED: 05/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 238 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 4803 of 2016
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MANJULABEN PUNAJI GAMETI (PRINCIPAL)
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR Y J PATEL, ADVOCATE for the Appellant(s) No. 1 in LPA No. 238 of
2021.
MR. VALMIK VYAS, ADVOCATE for the Applicant No.1 in CA No. 1 of 2020
in LPA 238 of 2021.
MR. HARD SONI, ADVOCATE For the Appellant in LPA Nos. 229/2020, CA
1/2019, 230/2020 & CA 1/2019.
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undefined
MS. SUKRUTI D KAPADIA, ADVOCATE For the Appellant in LPA No. 231 of
2020 & CA 1/2019 in LPA 231/2020.
MR. ASHISH M. DAGLI, ADVOCATE FOR MS.PAYAL TUVAR, ADVOCATE
for the Appellant / Applicant in LPA Nos. 252/2022, 1/22, 241/2021, 1/2020,
242/2021, 1/2020, 243/2021, 1/2020, 244/2021, 1/2020, 245/2021, 1/2020,
246/2021, 1/2020, 247/2021, 1/2020, 248/2021, 1/2020, 249/2021, 1/2020,
250/2021, 1/2020, 251/2021, 1/2020, 252/2021, 1/2020, 253/2021, 1/2020,
254/2021, 1/2020, 255/2021, 1/2020, 256/2021, 1/2020, 257/2021, 1/2020,
258/2021, 1/2020, 259/2021, 1/2020, 260/2021, 1/2020, 261/2021, 1/2020,
262/2021, 1/2020, 264/2021, 1/2020, 263/2021, 1/2020, 265/2021, 1/2020,
266/2021, 1/2020, 267/2021, 1/2020, 268/2021, 1/2020, 240/2021, 1/2020,
239/2021 & CA 1/2020.
MS. MANISHA LAVKUMAR SHAH, ADDITIONAL ADVOCATE GENERAL,
WITH MR. ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
MR.A.D.OZA, ADVOCATE for the Respondent(s) No. 3 in LPA No. 229/2020
& CA 1/2019 in LPA 229/2020.
MR. R.D.KINARIWALA, ADVOCATE for the Respondent (s) No. 3 in LPA
Nos. 254/2021, 265/2021, 266/2021, 240/2021 & 239/2021.
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 05/04/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 These appeals under Clause 15 of the Letters Patent have been filed by the Trusts and Head Masters and Teachers appointed in these Trusts run schools aggrieved by the CAV judgement dated 27.02.2019 passed by the learned Single Judge.
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NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 2 Before the learned Single Judge, the Trusts as well as the Head Masters and Teachers who were appointed by such Trusts had challenged the order dated 22.03.2016 passed by the State Government, by which order, the Committee constituted by the State observed that the Trust who had appointed the Teachers and the Head Masters had made such appointments based on fraudulent and fake orders by the State Government and therefore not only was a decision taken that the amounts be recovered from these Trusts, but also the appointments of these appellants, Head-Masters and Teachers be put to an end. The challenge to these orders before the learned Single Judge failed, hence these petitions.
3 Briefly stated, taking the Letters Patent Appeal No. 245 of 2021 as the lead matter which has been argued by the learned advocate Mr.A.M.Dagli for the appellant, it was the case of the appellant and the other similarly situated appellants before the learned Single Judge that Page 9 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined the appointments of such Head-Masters and Teachers appointed in the schools run by the Trusts were in accordance with law. That it was pursuant to an advertisement published in the public newspaper that the appellants had applied. That they were qualified for such appointments and based on the approval of the District Education Officer, such grant- in-aid schools run by the Trusts appointed the appellants and they continued to serve thereunder. Based on a letter of one Shri Chirag Patel, the State Government undertook an inquiry and found that a large scale fraud had been committeed, inasmuch as, the Trusts, without obtaining an N.O.C from the respective District Education Officers and based on fake or fraudulent administrative orders / approvals of the officials of the State Government, proceeded to undertake recruitment of such appellants. The Trusts which undertook such appointments also did so by including such schools under the Direct Payment Scheme as a result of which the salaries were directly credited by the government exchequer into the account of such teachers Page 10 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined based on the grant-in-aid extended to such Trusts. Therefore, it was the case of the State that the Trusts and such teachers who were the beneficiaries were directly concerned in their appointments as a result of complicity of certain officals of the State Government who forged or faked approval resolutions based on which such appointments were made and accordingly, not only was the amounts sought to be recovered from the Trusts but the appointments of these appellants, Teachers and Head- Masters who also were the petitioners were terminated. 4 Mr.A.M.Dagli, learned advocate appearing with Ms.Payal Tuvar, learned counsel for the appellants, in the lead arguments on behalf of these appellants - appointees, would submit as under:
4.1 Having found on the basis of a preliminary enquiry that the District Education Officers of the relevant districts of Sabarkantha, Himmatnagar and Aravalli, had been guilty of preparing forged orders, FIRs were lodged Page 11 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined against these officers. Based on such FIRs, which were a subject matter of proceedings in quashing matters and where stays were obtained, the appellants- Head Masters and Teachers were terminated without conducting any inquiry or granting any opportunity of hearing in complete disregard to the principles of natural justice.
4.2 Mr.Dagli, learned advocate, would submit that as long as fraud was not established in accordance with law by holding a disciplinary inquiry, the services of these Head Masters / Teachers could not have been terminated.
The learned Single Judge committed an error in affirming the orders of the Committee and holding that the principles of natural justice had been complied with. 4.3 Mr.Dagli, learned advocate, would further submit that the very constitution of the Committee formed by the State was not in accordance with law and therefore the consequential report of the Committee was without authority of law.
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NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 4.4 Mr.Dagli, learned advocate, submitted that if the show cause notices are produced, reliance was placed on a letter of one Shri Chirag Patel which triggered this whole process. Non supply of the copy of this letter as well as the letter dated 12.01.2016, created serious prejudice to the case of the appellants, and therefore, the entire consequential termination based on such report smacks of arbitrariness and violates the principles of natural justice.
4.5 Mr.Dagli, learned advocate would submit that the appellants, Head Masters and Teachers applied pursuant to an advertisement. They were selected and accordingly joined service. They received salaries, which were deposited in the bank accounts. Having not been complicit in the entire process of appointment they were made victims or scapegoats of a scam which may have been a device at the hands of the officers and the Trustees. He submitted that the appellants be not made victims, and therefore, the consequential order dated Page 13 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 22.03.2016, be quashed and set aside. 4.6 Mr.Dagli, learned advocate, during the course of his submissions, placed reliance on a decision of the Hon'ble Supreme Court in the case of Chief Engineer, M.S.E.B & Anr vs. Suresh Raghunath Bhokare reported in (2005) 10 SCC 465. He would submit by relying on paras 4 and 5 of the decision that in absence of any material to support the contention that the appellants have contributed in making representation or a misrepresentation at the time of applying for the job, and in absence of any collusion, the appellants could not be faced with the termination.
4.7 Mr.Dagli, learned advocate would further submit that by virtue of passage of time such employees have become age barred and therefore will not be able to apply for any future process of selection which is a consequential damage to their right to livelihood, and therefore, the judgement of the learned Single Judge be Page 14 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined reversed.
5 Ms.Manisha Lavkumar Shah, learned Additional Advocate General appearing with Mr.Rohan Shah, learned AGP, for the State would support the order of the learned Single Judge. She would make the following submissions:
5.1 She would submit that the Trusts and the beneficiary Head Masters, Shikshan Sahayaks and Teachers etc., have come in appeal challenging the communication dated 22.03.2016. The Committee was constituted of six senior officers of the State based on a complaint of one Chirag Patel. FIRs were lodged at various police stations as it was found that in making large scale appointments, no procedure was followed and the appellants were beneficiaries of forged orders. Scam having been unearthed, such appointees as well as the Trusts could not claim that the benefits granted under such forged orders be continued.Page 15 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024
NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 5.2 Ms.Lavkumar, learned Additional Advocate General, would submit that the Committee found that the appointment orders are unlawful as the procedure has not been followed under the rules and regulations. By virtue of fake government approvals, the teachers were placed under the direct salary scheme which caused a substantial drain on the public exchequer, and therefore, based on the responsibility of the staff which had undertaken such exercise, show cause notices were given to the Trusts as well as the appointees and after due compliance of principles of natural justice, the Trusts as well as the appointees faced termination. She would submit that the Education Department undertook disciplinary proceedings against the District Education Officer, Sabarkantha, the Superintendent and the DEO, Himmatnagar, and such officers after due disciplinary proceedings were dismissed from the service. The regular procedure envisaged under various regulations and resolutions for recrutiment were not followed and therefore such appointment being based on fraud, no Page 16 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined right accrued for the teachers to be continued in service nor those benefits that were gained by Trusts be continued.
5.3 Ms.Lavkumar, learned Additional Advocate General, would take us through the various paragraphs and the observations of the learned Single Judge and supporting the order would submit that this is a case in which a huge scam appears to have been unearthed. Based on the provisions of Sec.18 of the Gujarat Secondary Education Act, a Committee was constituted. The Committee undertook examination of the material after extending an opportunity of hearing to the appellants. The Committee found that no procedure for recruitment was undertaken in accordance with the policy and regulations. After due scrutiny and hearing the appellants, the order impugned before the learned Single Judge was passed and which the learned Single Judge rightly upheld by relying on various decisions of the Hon'ble Supreme Court as well as the High Court.
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NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 5.4 Ms. Lavkumar, learned Additional Advocate General, would take us through the further affidavit filed by the State, which the learned Single Judge had reproduced holding how in certain cases the beneficiaries were the family members of the Trust itself which resulted in appointments continued by fraud. She would rely on the following decisions:
(I) In the case of Brij Mohan Vs. Union of India., reported in 1995 (6) SLR 587 (CAT, Chandigarh).
(ii) In the case of Radhey Shyam vs. State of Haryana & Ors., renderred in CWP No. 61 of 2015.
(iii) In the case of Raghavbhai Bhurabhai Makwana Vs. State of Gujarat & Anr., rendered in Special Civil Application No. 10459 of 2008.
(iv) In the case of Bank of India & Ors Vs. Avinash Mandivikar., reported in (2005) 7 SCC
690.
(v) In the case of Bhaurao Dagdu Paralkar Vs. Page 18 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined State of Maharashtra., reported in (2005) 7 SCC
605.
(vi) In the case of Chairman and Managing Director, FCI Vs. Jagdish Balram Bahira., reported in (2017) 8 SCC 670.
6 Mr.Kinariwala, learned counsel appearing for the Trust in addition to supporting the submissions of Mr.Dagli, learned counsel for the appellants, would take us through the relevant observations of the learned Single Judge and submit that there was an error committed by the learned Single Judge in holding that the non supply of important documents including the letter dated 12.01.2016 did not violate the principles of natural justice. He would submit that the learned Single Judge committed an error in observing that since the process was carried out de-hors the rules, the principles of natural justice could not be stretched beyond a certain extent. He would rely on a decision in the case of State of Uttar Pradesh vs. Rajit Singh., rendered in Civil Page 19 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined Appeal No. 2049 of 2022 dated 22.03.2022, to submit that a departmental proceeding ought to be conducted before issuance of any orders adverse to the Trust and / or the appointees.
7 Having considered the submissions made by the learned counsels for the respective parties, perusal of the impugned order dated 22.03.2016, indicates that (i) based on fake orders of approval and resolutions passed by the Offices of the District Education Officer, Himmatnagar, Aravalli and Sabarkantha, the appointees were inducted as Teachers & Head-Masters in the Trust run schools based on advertisements issued by such Trusts, (ii) it was found that the respective Trusts in issuance of advertisement had relied upon various approvals and resolutions of the State Government dated 01.07.2013, 10.07.2013 and the Resolutions of 2014, which on examination were found to be fake. 7.1 It was therefore decided that the 41 beneficiaries of Page 20 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined such orders i.e. the appointees and their Trusts who had undertaken such exercise of recruitment be examined at the hands of the Committee. Therefore, the State, in its wisdom so as to undertake a transparent exercise, in accordance with the principles of natural justice, constituted a Comittee of six senior officers of the State Government, namely that of the Joint Director of Education (Accounts), Joint Director of Education (Madhyamik), Assisstant Director of Education (10+2), Legal Advisor (Commissioner of Schools), District Education Officers respectively of Sabarkantha and Aravalli.
7.2 After having lodged multiple FIRs at the respective police stations invoking the provisions of Secs. 465, 466, 468, 471 and 114 of the Indian Penal Code, the bank accounts of the appointees were frozen. Pursuant to certain interim orders, the freeze was lifted and the Court directed that such order be passed in compliance with principles of natural justice.
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NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 7.3 Perusal of the impugned order dated 22.03.2016 indicates that in accordance with provisions of Sec.18 of the Gujarat Secondary Education Act, the Committee undertook an inquiry by issuing show cause notices dated 01.01.2016 and 12.01.2016, pursuant to which hearings were held where the appellants were heard in person on 11.01.2016 and 20.01.2016. The Committee noted the salient features of the case which indicated that:
(A) A complaint was received from one Shri Chirag Patel on 10.09.2014 stating that in several schools of the Sabarkantha district, appointments were made in government schools which were grant-in-aid schools and the appointments were based on forged and fake approvals by the State and the Trustees had indulged therefore in financial irregularity.
(B) A preliminary inquiry was conducted by the Commissioner of Schools, based on which it was found that in all 41 appointments were made making such appointees valid for and eligible under the Direct Page 22 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined Payment Scheme.
(C) No original resolutions or approvals of the State Government were found on the file, but mere zerox copies of these government approvals and the resolutions were filed. It was found, on examination of these photocopies that on the zerox, signatures of government officials, based on their signatures on the official documents, were pasted on these photocopies and the concerned District Education Officers based on these forged approvals appointed the beneficiaries and so also extended benefits to the Trusts.
(D) Based on this report, since these appointments were made in the year 2013-14, show cause notices were issued to the appointees on 01.01.2016, and thereafter, on 12.01.2016 and opportunities of hearing were given.
During the course of hearing it was found that a set procedure was prescribed for undertaking recruitment in accordance with the resolution of the State dated 09.10.2003, inasmuch as, that an N.O.C had to be Page 23 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined obtained from the District Education Officer by the relevant Trust and / or the school; that there should be an advertisement as per the N.O.C given by the concerned District Education Officer; the advertisement should specify the nature of vacancy; the category of reservations etc, that the advertisement should be published in a newspaper having wide circulation; merit list should be sent to the concerned District Education Officer, an interview be held where original documents be verified and then the approval of the D.E.O be obtained. Further, in accordance with the notification of 11.02.2011 which prescribed that the selection had to be made in accordance with the provisions of the Gujarat Secondary Education Act and the Teachers and Head masters of registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011, in accordance of which a Centralized Recruitment Committee under the Commissionarate of Schools would carry out the recruitment, no such procedure seem to have been followed in undertaking the recruitment. Page 24 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024
NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 7.4 Perusal of the report and the order dated 22.03.2016 would therefore indicate that none of these procedures were followed as a result of which, the findings of the Committee were recorded.
8 Having examined the judgement of the learned Single Judge in the background of these facts, we have the benefit of the translated version of the findings of the Committee which the learned Single Judge has extensively reproduced. The findings of the Committe have been reproduced by the learned Single Judge in translated form in paragraph 8 of the decision, which read as under:
"8. Before adverting to the contentions, the conclusion which has been arrived at after scrupulously observing the principles of natural justice is also not possible to be ignored. Hence, the translated version of such conclusion is reproduced hereinafter :
"(6) Findings of the Committee:
In view of the task assigned to the committee vide order dated 12/1/20016 of the Education Department and on the basis of the basic details, facts, representations, and written statement produced before the committee during the Page 25 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined hearing, findings of the committee are as follows.
(6.1) School Managements and concerned employees were heard during the
hearing. Written statements have also been submitted by them during the hearing.
All the statements mainly appear to be of similar nature. It is mainly stated in their representation that appointment has been given by the School Management after giving advertisement in the newspaper and after conducting the prescribed recruitment process, but 'No
Objection Certificate', which is to be obtained from the competent authority before giving such advertisement has not been obtained by the Management. Not only that, but the details regarding the qualifications of the candidates and category of reservation do not appear to have been mentioned in the advertisement given by the Management. In view of that, as the defence taken by the Management is not consistent with the Rules, it is not liable to be admissible to that extent. Moreover, as it does not appear that the recruitment process stipulated by the Gujarat Secondary Education Board on 6/10/2003 has been followed in the recruitment process initiated by the Management and as the recruitment process initiated by them does not appear to be as per rules, the representation that the recruitment made by the Management has been conducted as per rules cannot be accepted.
(6.2) One point of the representation made by the Management is also that the District Education Officer, Sabarkantha has passed orders regularizing the employees Page 26 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined recruited by the Management. In view of that, it has been submitted that it is none of the fault on their side. This argument is also not sustainable because orders have been passed by the District Education Officer, Sabarkantha regularizing the concerned employees based on the so called orders of the Government regarding approval for regularization and regarding such so called true orders, as mentioned in the letter dated 12/1/2016 of the Education Department, no such orders have been passed. Not only that, even endorsements have not been made in such type of orders by the Office of the Commissionerate of Schools. Such fact has been submitted. In the files of the District Education Officer, Sabarkantha relating to the procedure carried out by the District Education Officer, Sabarkantha on the disputed office orders, wherein the orders regularizing the concerned employees and orders for the salary have been passed, original signature (signature in the original copy) of any Government Officer in the endorsement of the Commissioner of Schools or the Education Department of the Government shown in it has not been found, therefore, various police complaints have been lodged in this regard and disciplinary actions as per rules have also been taken against the concerned District Officer and his staff.
Moreover, as per the procedure mentioned in point No.5.3, it was clearly provided in the Resolution of Education Department dated: 16/04/2005 that, any irregular appointments shall not be made Page 27 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined
regular after 01/07/2002. Despite that, it appears, looking to the orders of the employees regularized in this case that, they were appointed by the Management after 2002. Therefore, they are not liable to be regularized in any circumstances as per rules.
Further, it has been clarified by the Education Department that, they have not passed disputed orders. Not only this but, as those disputed orders were prepared by forgery, this matter is sub judice. Under such circumstances, all the ancillary procedure carried out pursuant to the fabricated disputed orders which create a large scale financial burden on the Government Treasury, is liable to be cancelled ab initio. Because, as the decision, of the District Education Officer made on the xerox copy of the fabricated order without having signature in the original copy and without instruction/order of the competent authority in respect of the recruitment of the teachers made by the institution, is clearly illegal, unauthorized and without following the prevailing legal provisions, it is liable to be cancelled ab initio. Therefore, in respect of such illegal order of District Office, there is no financial liability of the Government and the payment can not be made. In such circumstances, the representations made by the managements and its employees are not liable to be admissible.
6.3) If such recruitment process had been conducted as per rules, temporary approval and thereafter permanent approval would have been given by the District Page 28 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined Education Officer. Therefore, no question of regularizing aforesaid recruitment has arisen. Moreover, no such procedure has been conducted by the Management. By stating that, fabricated false documents were prepared by the School Management or by other beneficiary and proposals of regularizing were made to the District Office, and the orders of regularizing the employees were passed on the basis of the false and fabricated approval orders of the Government, the District Office passed the orders absorbing the said employees under direct salary scheme and the employees were paid the salary through the bank under direct salary scheme from the date of appointment.
As the disputed office orders of district office are prima facie found to be passed without approval of the competent authority and as they attract the police/disciplinary action, such illegal orders creating burden on the Government
Treasury are not liable to be paid in any circumstances in the interest of public administration.
(6.4) In connection with the recruitment in the grant in aid schools of the state, instructions were issued to all the DEOs vide this office' letter no. S.S.N./P.A./263 dated 26/02/10 that they should not issue NOC to any institution for the recruitment;
if NOC is issued, but recruitment process has not started, in such case, the recruitment process should be stopped. If recruitment process is over, the same should not be approved without sanction of Commissioner of the Schools and Page 29 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined recruitment process will be conducted in accordance with the policy stipulated by the Government. Despite that, School Management conducted illegal recruitment process and gave appointments after these instructions were issued, which is illegal and contrary to the rules. In this regard, disciplinary actions have been initiated against the concerned persons of District Education Office, Sabarkantha as per the rules and police action has been initiated against the beneficiaries, who have obtained financial gain through
such illegal orders of District Office. Under these circumstances, employees cannot be eligible to receive any financial gain through disputed orders.
(6.5) It is to be noted that out of the concerned managements, one Matrushri J.P. Shah High School organized by Shri Chorivad Hitvardhak Mandal in its reply clearly admits that it did not conduct any
illegal procedure. Not only that, the Mandal recovered salary paid to the appointed employees from the maintenance grant of its institution for 2014 15 and paid the same to the Government after knowing about the dispute. Moreover, this Mandal and its employees have shown willingness to accept any decision to be taken by the Government in this regard.
(6.6) Apart from the institution working at Chorivad, employees of the remaining 4 (four) institutions have stated that they were unaware of orders of District Office, which were issued based on the fake and fabricated resolutions of approval of the Government. Considering the same, it is Page 30 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined pertinent to note that the institution and employees of the institution have directly obtained huge benefit based on the fake and fabricated resolutions of approval of the Government. Looking at the same, it is not prima facie possible that institutions / employees were unaware of such fake and fabricated resolutions. It appears that the entire matter was pre planned and its aim was to obtain financial gain after having been accommodated under Direct Pay Scheme of the Government illegally. Therefore, the Government has separately lodged complaints vide F.I.R. No. 69/14, 40/14 and 138/14 at Khedbrahma, Khoraj and Idar respectively on 15/11/2014 and vide F.I.R. No. 97/14 at Modasa Rural on 16/11/2014 in this regard. The then District Education Officer and staff members involved in this matter have been suspended with immediate effect and departmental inquiry has also been initiated against them. Further, as it appeared that fake and fabricated documents showing approval of the Government, wherein stickers bearing signatures were pasted at the place where officers put their signatures, were used for regularization of concerned employees and based on the same, they were included in the Direct Pay Scheme. The said documents were seized from the office of District Education Officer, Sabarkantha and handed over to the Khedbrahma Police Station for the investigation. Considering the same, procedure conducted in pursuant to the disputed orders is liable to be cancelled. (7) Decision taken by the committee consequent to the aforesaid findings: Page 31 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024
NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined Thus, it is stated by the concerned managements/employees in their representation that they were regulaized on the basis of orders of the district office. As the documents of approval and resolutions of the government read in those district office orders, are found to be fake and fabricated, the orders of district office passed on the basis of the said documents, also prove to be illegal together with all kind of the benefits given thereto. Therefore, as the prayer sought by the managements/employees to continue the benefits as it is on the basis of the orders of the district office, is not tenable legally in any circumstances, therefore, following order is passed by the committee.
ORDER (7.1) Looking to the show cause notice served by the District Education Officer to the School Management Trust and concerned employees, written reply submitted during the hearing held in that connection, documents submitted and above mentioned details, it is found that these orders are proved unlawful as procedure has not been done as per rules and regulations for passing orders of appointment/ regularization of all the employees under the impugned order and as approval of competent authority has also not been obtained. Moreover, as they have been getting salary from the government till today in unlawful manner, which is proved to have been causing unauthorized burden on the treasury of the State, decision is taken to stop it with Page 32 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined immediate effect. Moreover, decision is taken by the committee in the interest of public administration and financial benefit that hereinafter all the responsibilities shall be upon the institution and the recovery of the benefits obtained illegally by the employees earlier and at present, shall be done from the school management trusts.
(7.2) Though the school management trusts came to know in November - 2014 that the orders of District Education Officer were passed on the basis of concocted and fabricated approval documents of the Government, they did not act in public interest and by not following the procedure done by Shri Chorivad Trust, they had continued the service of the concerned employees knowingly. Therefore, considering the rules and material evidences regarding irregularity committed by them, this committee takes decision to take action against them as per the rules in the interest of public, educational and financial benefit."
8.1 At the cost of reiteration, it is apparent from reading the findings of the Committee that no NOCs were obtained from the competent authority by the management. The process of recruitment stipulated under the Gujarat Education Board was not followed, the original copies of any approvals of the Commissioner of Page 33 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined Schools or the Education Department have not been found and what has been found are photocopies having forged super imposed signatures of the officers of the government, and therefore, we are in agreement with the submissions of the learned Additional Advocate General that based on such scam of a huge encompassment, the appointees as well as the Trusts gained. Reading of the additional affidavit filed by the State also indicates that serious irregularities were brought to the notice of the State Authority inasmuch as, the policy where a Staff Selection Committee was constituted which envisaged the process of selection had not been followed. The learned Single Judge extensively in paras 9 to 13 have found breach of these basic provisions. The relevant paragraphs 9 to 13 read as under:
"9. The Court, after hearing the learned advocates at length, has gone through the material on record and found that for the purpose of recruitment of teachers, specified norms are prescribed by the Government resolution dated 9.10.2003 which is not in dispute. This resolution indicates that certain steps to be taken while recruiting the person. This policy of recruitment of October,2003 was framed Page 34 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined by the State authority only to streamline the transparent recruitment of teachers, since there were serious irregularities which were brought to the notice of the State authority and nepotism was also unearthed. As a result of this, with a view to see that no irregularity can take place, this policy has been framed.
The policy has evolved a mechanism how to constitute a staff selection committee; how to publish the advertisement, in what manner the applications are to be invited, upon receiving the application how the selection
to take place and in what manner the merit list is to be prepared. This detailed mechanism has been provided in this policy.
10. First of all, it has been provided in clause (3) that before publishing an advertisement for recruiting the post of teaching and non teaching staff. As per the Regulation (20), the advertisement is not to be issued by giving box number, the advertisement must commensurate with the grant of NOC, the advertisement is to be published in a widely circulated daily newspaper and further, pursuant to the advertisement, a candidate has to give through RPAD within 10 days an application in his own handwriting and the said application is to be invited at the address of the school. Clause (3) of the said resolution is indicating that how the selection committee is to act upon it and minimum requirement of 3 candidates is postulated in clause (4) of the said policy and all these applications based upon which the merit list is to be prepared at the level of DEO's office and then, Page 35 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined after the said entire process of selection, the relevant material of selected candidate has to be forwarded to the office of DEO and then, the DEO will have to scrutinize the same for granting or not granting the approval which, in turn, is to be forwarded to the office of the managing mandal or principal to be placed on the notice board. So, this entire mechanism is provided way back in 2003 by virtue of policy.
11. A further look at the record indicates that even after this, a further step is taken by the State authority by publishing a notification on 11.2.2011, whereby in addition to the aforesaid having found that rules are necessary, in exercise of power under Section 35 of the Gujarat Secondary and Higher Education Act,1972 the Rules have been framed for the selection of teachers and head master of 'registered private secondary and higher secondary schools.' These rules are statutory in character and each school, who is recognized by the Government, has to observe in its true spirit. Now, looking at these Rules, the selection of teachers and head masters is to be is to be scrutinized and cleared by validly constituted selection committee which is prescribed in Rule 3 which reads as under :
"3. Constitution of Selection Committee:
(1) There shall be constituted a
selection committee known as "The
Gujarat State Secondary and Higher
Secondary School Educational Staff
Recruitment Selection Committee".Page 36 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024
NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined (2) The Selection Committee shall consist of the following members, namely;
(i) The Commissioner Mid day Meals
and School, Gujarat State, Gandhinagar
Chairman Ex officio
(ii) Vice Chairman, the Gujarat
Secondary and Higher Secondary
Education Board, Gandhinagar.
Member,ex officio
(iii)A senior Government Officer, not below the rank of Deputy Secretary, appointed by the Government. Member
(iv)Two eminent educationists nominated by the Government. Member
(v) A representative of recognized association of school management, nominated by the Government.
Member
(vi) The Joint Director of Schools,
Gujarat State, Gandhinagar Member (3)
The Joint Director of Schools,
Gujarat State, Gandhinagar shall be
the MemberSecretary of the Selection
Committee."
12. This validly constituted selection committee had to select the persons for appointment, who are found to be qualified and deserved to be appointed in accordance with the provisions these Rules. Rules 9, 10 and 11 are the rules relating to application for the post of teacher or head master, scrutiny of applications and preparation of select list. Rule 12 of these Page 37 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined Rules indicates that the manner in which the selection committee has to prepare the select list in 3 parts. Rule 15 has made it clear that mere inclusion in select list shall not by itself confer of a candidate any right of appointment. So, this entire mechanism of recruitment has been spelt out by this notification which the registered private schools are bound to observe.
13. Apparently, a bare look at the relevant record indicates that these Rules are found to have been given a go bye as found by inquiry committee which is set for this very purpose of examination and it is found that not only the appointment orders are forged but, there was no NOC in a relevant form was available with the institute. It was also categorically found that the approval orders which are stated to have been issued by DEO, Sabarkantha have also not been issued at all which has been clarified in a letter dated 12.1.2016 and on examination, this inquiry committee found that bogus orders have been obtained having no signature on original one and there are resolutions of the Government dated 16.4.2005 as well as 1.7.2002 that such kind of irregular appointments cannot be regularized in any form. It has also been found in detailed examination that on the basis of such fraudulent material in respect of appointments and in respect of approval, these employees have been found covered under the direct payment scheme and through bank, some of the employees have been even paid the salaries."
Page 38 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024
NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 8.2 The learned Single has also reproduced the relevant averments in the further affidavit-in-reply filed in the petition which indicates that the petitioners of Special Civil Application No. 432 of 2014 were appointed as Shikshan Sahayaks, though they had applied for the posts of Principal. That in the process of interview, it was found that in one of the cases, the wife of the very Principal or the President of the Trust was appointed. In other words, it was found on facts that the President appointed his wife in the school as a Principal. On perusal of the address indicated in the advertisement for submitting the applications as compared to the address mentioned in the application, it was found that the address was one and the same. There already was an appointed Principal and there was no need for another Principal despite which the wife of the President was appointed. What was also found on reading the further affidavit that the President did not leave a single opportunity to misuse his authority. The appointments in the higher secondary school sections were made in May 2013, much before the permission to Page 39 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined start the classes was given on 09.10.2013. These cases have been extensively set out in the affidavit-in-reply / further affidavit of the State which remained uncontroverted. The learned Single Judge based on the affidavit-in-reply, which he reproduced in paras 17 and 18 observed thus:
"17. The aforesaid uncontroverted irregularities which have been pointed out on oath by the Government officials while filing the affidavit, none of the petitioners have disputed this fact neither the concerned employee nor the respective Mandals. Hence, in such a situation, it appears that the committee's finding with respect to the fraud being committed cannot be held to be perverse in any manner. It may be that the committee might not have in clear terms asserted that fraud is committed possibly on account of the reason that trial in criminal case is very much pending. Hence, these findings which have been derived from the material on record after giving due opportunity to the persons concerned, are not possible to be construed as perverse in any form. These averments on further affidavit pointing out irregularities for which even documents are also attached right from page 129 to 138 which is on the record of the case. Hence, this Court found that there appears to be a sufficient justification for taking action against the petitioners.
18. In the light of this relevant record which is reflecting a mass irregularity, the contentions which have been taken by learned Page 40 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined advocates appearing for the petitioners in common if to be tested independently, the same apparently generate no confidence."
8.3 As far as the arguments of the learned appellants that the constitution of the Scrutiny Committee itself was flawed, we are in agreement with the observations of the learned Single Judge that in considering the vastness and the seriousness of the fraud played on the State Exchequer, it was within the competence of the State to form a Committee of six senior officers of the Education Department and undertake an inquiry. This was particularly more important in light of the complicity of the District Education Officers and the FIRs lodged against them and they having faced disciplinary proceedings, it was necessary for instilling confidence of the justice being seen to be done that an appropriate committee of senior officers was constituted. 8.4 What is also important to note is that show cause notices were given to such employees and trustees, an opportunity of hearing was given and based on such Page 41 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined procedural formalities, which in our opinion were rightly undertaken, the learned Single Judge has approved the action of the Committee in not only terminating the services of the appointees but also in holding the Trusts as complicit in such appointments.
8.9 As far as the decision cited by Mr.Dagli, learned advocate in the case of Suresh Raghunath Bhokare (supra) is concerned, it was the case of one single employee and the Court found that there was no material to support the contention that there was fraud. The case on hand which we have to decide and based on the contents of the report and the order dated 22.03.2016, we are in no doubt that the appointees were beneficiaries of appointments based on fake orders, approvals and resolutions by the State Government. It will be in the fitness of things to reproduce paragraphs 9, 10,11 and 12 of the decision in the case of Bhavrao Dagdu Paralkar (supra), relied upon by the Additional Advocate General which indicate that the fraud itself vitiates every solemn Page 42 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined act. Paragraphs 9 to 12, read as under:
"9. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
10. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage.
11. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes Page 43 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
12 In Shrisht Dhawan v. Shaw Bros, it was observed as follows:
"Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so Page 44 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines "fraud"
as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus:
"Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false".
But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER 765, that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "Fraud" in relation to statute must be a colourable transaction to evade the provisions of a Page 45 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined statute.
"If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive."
8.10 In the case before the Hon'ble Supreme Court in the case of Rajasthan Rajya Vidyut Prasaran Nigam vs. Anil Kanwariya, arising in Civil Appeal No. 5743-5744, Page 46 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined the Apex Court while considering the decisions on the question of fraud, in para 12, observed thus:
"12. The issue / question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."
8.11 What is therefore evident is that it is not open for the appellant- appointees to contend that they cannot be made victims of the process as they were innocent Page 47 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024 NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined appointees. As observed by the Apex Court, the question is of Trust. In such a situation where the employer feels that an employee who at the initial stage got an appointment through fraud cannot claim the right to be continued.
9 Perusing the order of the learned Single Judge, what we find is that the learned Single Judge has found that in light of the huge scam which was unearthed, the Committee undertook examination of the material after extending full fledged hearing to the appellant institutions as well as the appellant teachers. The Committe found that before undertaking the recruitment process no NOC was obtained, no procedure of recruitment was undertaken, rules were found to have been given a go-bye, that the appellants as well as the office bearers of the Trusts were arraigned in criminal cases arising out of these events. The findings of the Committee have been extensively considered and reproduced by the learned Single Judge. Page 48 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024
NEUTRAL CITATION C/LPA/238/2021 ORDER DATED: 05/04/2024 undefined 10 We, in appeal therefore, will not undertake or re- undertake an exercise which the learned Single Judge in writ jurisdiction under Article 226 has found to be fair. For the aforesaid reasons therefore, we find no merit in the appeals and the appeals are accordingly dismissed.
The civil applications filed together with the appeals are also accordingly disposed of in light of the orders in the relevant appeals. Accordingly, the applications are disposed of with no orders as to costs.
(BIREN VAISHNAV, J) (PRANAV TRIVEDI,J) BIMAL Page 49 of 49 Downloaded on : Tue Apr 09 20:39:10 IST 2024