Gujarat High Court
Raghavbhai Bhurabhai Makwana vs State Of Gujarat & 3 on 12 September, 2017
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/13954/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13954 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
RAGHAVBHAI BHURABHAI MAKWANA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR SHIVGAR P GOSAI, ADVOCATE for the Petitioner(s) No. 1
MR.H.S.SONI, AGP for the Respondent(s) No. 1 - 2
MR MRUGEN K PUROHIT, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 4
==========================================================
CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 12/09/2017
ORAL JUDGMENT
Page 1 of 6
HC-NIC Page 1 of 6 Created On Sat Sep 16 18:29:27 IST 2017 C/SCA/13954/2009 JUDGMENT
1. By way of present petition, the petitioner has prayed for issuance of writ on mandamus or issue any other writ, order or direction in the nature of mandamus for quashing and seeting aside the impuged notice dated 5/6.2009 by which the respondent authorities has asked the petitioner to deposit an amount of Rs.3,84,000/- within a period of 10 days. The said order is passed for the recovery of pay and allowances from the petitioner.
2. The brief facts giving rise to present petition are as under:-
The petitioner was appointed as Assistant Teacher on
03.08.2000 after the approval of District Education Officer. After the period of about 6 years, on the basis of a complaint from some sources about the genuineness of M.Ed. Certificate submitted by the applicant, the District Education Officer inquired into the same. The District Education Officer, after verifying the authenticity of the said certificate issued by Maharshi Dayanand University, Rohtak, found that the said certificate was fake and concocted. The District Education Officer vide letter dated 29.03.2006 informed the school to take appropriate action against the petitioner and has also informed him for refund of the entire amount of salaries paid to him during his tenure. Apprehending the termination, the petitioner approached Gujarat Secondary Education Tribunal by filing application no.121/06. After hearing the parties, learned Tribunal remitted the matter to the Commissioner of School to consider the case of present petitioner sympathetically. Pursuant to the aforesaid direction, the Commissioner Office heard the respective parties including the Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Sep 16 18:29:27 IST 2017 C/SCA/13954/2009 JUDGMENT petitioner and by order dated 09.09.2008 declined to grant any relief to the petitioner. Thereafter, the petitioner challenged the said action by filing an application No.55/08 before the Gujarat Secondary Education Tribunal, Ahmedabad. By the judgment dated 08.07.2008, the learned Tribunal dismissed the application of the petitioner observing that the petitioner had obtained appointment on the basis of false certificate of M.Ed. Qualification. The Tribunal has observed that certificate of M.Ed. on the basis of which the applicant has sought entry in the job itself found to be fake. Moreover, if the additional marks given for M.Ed. Certificate are taken out or suborned then the petitioner number stands at Sr.No.3 and he would not eligible for the appointment. The petitioner has challenged the aforesaid judgement of the Tribunal by preferring Special Civil Application No.10459 of 2008 before this Court. By the order dated 20.08.2008, this Court dismissed the petition challenging the aforesaid order of the Tribunal by observing that the entire appointment would be void ab-initio and no right can be claimed even on the ground of equity. After culmination of the aforesaid proceedings, the respondent authorities by impugned show cause notice asked the petitioner to deposit an amount of pay and allowances received by him while rendering his services as Assistant Teacher. The said show-cause notice is challenged before this Hon'ble Court.
3. Mr.Gosai, learned advocate for the petitioner has stated that in fact, the said show cause notice dated 01.05.2009 cannot be termed as show-cause notice and the same is a order to deposit an amount of Rs.3,84,000/- towards pay and allowances given to the petitioner when he was working as Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Sep 16 18:29:27 IST 2017 C/SCA/13954/2009 JUDGMENT Assistant Teacher. He submitted that the petitioner has actually worked on the said post and in view of the same, no recovery of pay and allowances can be made from him. He has also relied on the judgment dated 25.01.2006 passed in Special Civil Application No.11044 of 2005 more particularily, Paragraph No.9, where this Court has observed that the wages which are already paid to the employee concerned for the period during which he actually worked or for the period during which the work was taken by the employer from the employee cannot be recovered Even if the appointment is subsequently found to be obtained by fraud.
4. Mr.Soni, learned Assistant Government Pleader appearing on behalf of the respondent-State has stated that this Court in the earlier petition filed by the petitioner, vide order dated 20.08.2008, has observed that the appointment of the petitioner obtained on the basis of fake certificate is held to be void ab-initio and no right can be claimed even on the ground of equity. He has also relied on the recent Supreme Court judgment in the case of Chairman and Managing Director FCI and Ors. Vs. Jagdish Balaram Bahira and Ors., passed in Civil Appeal No.8928 of 2015 on 06.07.2017 for the proposition of law that if the appointment is secured by production of any fake certificate then the said appointment be said to be void ab-initio. In that case, the State Government is justified to recover the pay and allowances which are paid to the petitioner.
5. In response to the aforesaid submissions, learned advocate Mr.Gosai has submitted that the petitioner is still continued in the very same school without approval of the Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Sep 16 18:29:27 IST 2017 C/SCA/13954/2009 JUDGMENT District Education Officer. It is informed by learned advocate appearing for the petitioner that in view of aforesaid position, as the petitioner is presently working as a Assistant Teacher in the very same school with the same qualification and the salary is being paid by the school management, the District Education Officer does not held the authority to recover the aforesaid pay and allowanced by issuance of such show cause notice.
6. Heard learned advocate appearing for the respective parties.
7. The undisputed fact remains that the certificate produced by the petitioner of M.Ed. Qualification was held to be a fake and the petitioner was terminated from the services on 29.03.2006. His challenge to the termination till this Court has remained futile. This Court, vide order dated 20.08.2008, passed in Special Civil Application No.10459 of 2008 has held that his entire appointment is void ab-initio. Thus, if the appointment of the petitioner is held to be void ab-initio, the consequential benefits which he has got from such appointment are liable to be recovered. The Supreme Court in the case of Jagdish Balaram Bahira (Supra) in conclusion vide Clause 7 has held that withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise. This court, vide order dated 25.01.2006, passed in Special Civil Application No.11044 of 2005 has observed that when the appointment was obtained by fraud, Civil Suit may be filed for claiming compensation and it is held that even if Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Sep 16 18:29:27 IST 2017 C/SCA/13954/2009 JUDGMENT the employer has to recover any amount, as compensation due to fraud the employer may be required to file Civil Suit and such Civil Suit is required for the satisfaction of the Court.
8. In view of the aforesaid position of law and the observations made by the Hon'ble Supreme Court, the respondent Authorities i.e. State Authorities are at liberty to recover the wages / salary paid to the petitioner by filing appropriate Civil Proceedings. The impugned show cause notice dated 5/6.2009 is quashed and set aside with a liberty to the State Authorities to recover the said amount from the petitioner by filing appropriate proceedings for recovery of the same. Rule is made absolute to the aforesaid extent. Petition is partly allowed.
(A. S. SUPEHIA, J.) Girish Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Sep 16 18:29:27 IST 2017