IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 1702 of 2012
With SPECIAL CIVIL APPLICATION No. 4038 of 2012 With SPECIAL CIVIL APPLICATION No. 1991 of 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE KS JHAVERI
========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KATARA SHANTILAL GORJIBHAI & 7 - Petitioner(s)
Versus
STATE OF GUJARAT THRO THE SECRETARY & 3 - Respondent(s)
========================================================= Appearance :
SCA NOS. 1702 OF 2012 AND 1991 of 2012
MR KB PUJARA for Petitioner(s) : 1 - 8.
MR JASWANT K SHAH ASST. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MR RA MISHRA for Respondent(s) : 3, DELETED for Respondent(s) : 4,
SCA No. 4038 of 2012
MR MA PAREKH for Petitioner(s) : 1 - 8.
MR JASWANT K SHAH ASST. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MR RA MISHRA for Respondent(s) : 3, =========================================================
CORAM : HONOURABLE MR.JUSTICE KS JHAVERI
Date : 03/10/2012
ORAL JUDGMENT
1.0 The issue involved in these petitions is the action of the respondents of terminating the services of Primary Teachers, who had worked for a period of more than two decades, on the ground that they had committed fraud and had indulged in malpractice for securing appointment way back in the year 19901991 in spite of the fact that similar action taken in the year 2000, alleging similar illegality, was held to be illegal in proceedings filed before this Court and later, two show cause Notices, alleging similar illegality and issued in the year 2004, had to be withdrawn in another proceedings filed before this Court.
2.0 The facts involved and the issue raised in the present petitions are the same of Special Civil Application No.1454 of 2012 and other allied matters. Those matters were decided by this Court vide judgement and order dated 14.09.2012. Therefore the issue raised in these petitions is squarely covered by the decision of this Court dated 14.09.2012 rendered in Special Civil Application No. 1454 of 2012 and allied matters. The said judgement and order is reproduced as under:
“1. What has come under scrutiny of law in these petitions is the action of the respondents of terminating the services of 111 Primary Teachers, who had worked for a period of more than two decades, on the ground that they had committed fraud and had indulged in malpractice for securing appointment way back in the year 19901991 in spite of the fact that similar action taken in the year 2000, alleging similar illegality, was held to be illegal in proceedings filed before this Court and later, two showcause Notices, alleging similar illegality and issued in the year 2004, had to be withdrawn in another proceedings filed before this Court.
2. All these petitions involve common questions on law and facts and hence, they are disposed of by this common judgment. The facts in a nutshell are as under;
3. Respondent no.3, Junagadh District Panchayat, issued Advertisement dated 13/15.02.1990 inviting Scheduled Tribe candidates only for attending the Open Interviews for filling up the backlog vacancies of Primary Teachers. The petitioners herein, being eligible and qualified, remained present at the Open Interviews along with all their testimonials. All the petitioners were duly selected by the Selection Committee and their names were placed in the Select List. Thereafter, appointment orders were issued to the petitioners and other selected candidates. Subsequently, the petitioners were asked to produce and deposit all the Certificates, in their originals, with respondent no.3. The petitioners followed the instructions and accordingly, deposited the documents, in their originals, with respondent no.3, whereupon, respondent no.3 issued letters in favour of the petitioners, addressed to the Head Masters of the concerned Schools, directing them to permit the petitioners to join their duties. The petitioners, accordingly, joined their duties as Primary Teachers in the year 1990 – 1991.
4. After having served for a period of more than five years, respondent no.3 issued showcause Notice dated 09.01.1996 to the petitioners asking to showcause as to why their services should not be terminated on the ground that they had committed fraud and had indulged in malpractice for securing appointment. The petitioners submitted their detailed reply to the said showcause Notice. Being dissatisfied by the reply, respondent no.3 terminated the services of the petitioners and other Primary Teachers by order dated 12.10.2000.
5. The petitioners and other similarly situated Teachers challenged the orders of dismissal before this Court by filing S.C.A. No.11317/2000 & allied matters. This Court [Coram : H.K. Rathod, J.] allowed the said group of petitions by judgment and order dated 27.12.2000 and issued directions to the respondents to reinstate the petitioners within the period stipulated in the judgment.
6. Against the aforesaid judgment and order dated 27.12.2000, respondent no.3 preferred L.P.A. No.197/2001 & allied matters. Appeals were not preferred in every petition but, only in some of the petitions. The said group of appeals were disposed of as withdrawn, by order dated 08.05.2003, on the statement made by learned counsel for the appellant respondents herein that they shall hold fullfledged regular inquiry against the petitioners herein.
7. Thereafter, respondent no.3 issued showcause Notice dated 12.04.2004 to the petitioners asking to show cause as to why their services should not be terminated on the ground that they had committed fraud and had indulged in malpractice for securing appointment. The petitioners replied to the showcause Notice denying the allegation.
8. Here, it may be noted that the charge levelled in the showcause Notice dated 12.04.2004 was similar to the one levelled in the earlier showcause Notice dated 09.01.1996.
9. The petitioners were, thereafter, immediately served with another showcause Notice in the form of final showcause Notice dated 26/27.04.2004 by respondent no.3. Being aggrieved by the same, the petitioners approached this Court by way of filing S.C.A. No.5484.2004 & allied matters. When the matter was taken up for hearing by the learned Single Judge, learned advocate who appeared on behalf of the respondents in the said group of petitions made a statement that the respondentauthority will be withdrawing the showcause Notices dated 12.04.2004 & 26/27.04.2004. On the basis of the said statement, the learned Single Judge disposed of S.C.A. No.5484/2004 & allied matters by order dated 31.03.2005.
10. After the order dated 31.03.2005 was passed, the respondents did not initiate any proceedings against the petitioners for a period of about seven years, during which time, the petitioners had completed more than 21 years of service. All the petitioners are aged between 40 years and 55 years at present. Many of the petitioners have been transferred to other Districts, either on their requests or in some cases, as per the directions of this Court.
11. However, to the utter shock of the petitioners, respondent no.2 again issued a fresh showcause Notice dated 30.01.2012 to the petitioners. It appears from the record that the aforesaid action was a consequence of the order passed by respondent no.2 dated 23.12.2011 by which respondent no.3 was directed to terminate the services of the petitioners herein.
12. It appears from a plain reading of the order dated 23.12.2011 passed by respondent no.2 that the direction to terminate the services of the petitioners has been issued in view of the decision rendered by the Division Bench of this Court in L.P.A. No.2051/2010 & allied matters dated 06.05.2011. It has also been stated in the said order that the Primary Teachers, who have been reinstated in service pursuant to the order passed in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, be terminated by passing a speaking order.
13. The petitioners gave their detailed reply to the showcause Notice dated 30.01.2012 and thereafter, approached this Court by way of filing the present group of petitions. During the pendency of these petitions, respondent no.3 terminated the services of the petitioners, by impugned order dated 03.03.2012, which has also been challenged by moving draft amendments. The transfer orders were also cancelled by impugned order dated 14.11.2012. All the above orders, viz. order dated 23.12.2011 passed by respondent no.2, the showcause Notice dated 30.01.2012 issued by respondent no.3, the order of termination dated 03.03.2012 as also the order dated 14.11.2011 cancelling the transfer orders, are under challenge in these petitions.
14. Mr. KB Pujara, learned counsel for the petitioners in S.C.A. No.1454/2012 to 1529/2012, submitted that the respondents had earlier terminated the services of the petitioners by order dated 12.10.2000 on the ground of allegedly adopting fraudulent practice for securing appointment. However, the said order of dismissal was quashed by this Court, vide judgment and order passed in S.C.A. No.11317/2000 & allied matters dated 27.12.2000. Against the judgment rendered in S.C.A. No.11317/2000 & allied matters, the respondents had preferred L.P.A. No.197/2001 & allied matters, which came to be disposed of, as withdrawn, vide order dated 08.05.2003. The respondents did not challenge the order before the higher forum and hence, the order passed by the learned Single Judge in S.C.A. No.11317/2000 & allied matters, which was confirmed in L.P.A. No.197/2001 & allied matters, had attained finality. Therefore, the respondents had no authority under law to issue the showcause Notice dated 30.01.2012 and to pass the impugned order of termination dated 03.03.2012.
14.1 Learned counsel Mr. Pujara submitted that the petitioners herein were reinstated in service pursuant to the orders of this Court passed in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, which was confirmed in L.P.A. No.197/2001 & allied matters decided on 08.05.2003. However, subsequently, the respondents issued showcause Notices dated 12.04.2004 and 26/27.04.2004 to the petitioners on similar allegation of adopting corrupt practice for securing appointment. The said Notices were challenged before this Court and subsequently, respondent no.3 withdrew the Notices. Therefore, no action was taken against the petitioners. However, after a period of about 08 years, the respondents once again issued showcause Notice dated 30.01.2012 to the petitioners, on similar charge, and thereafter, terminated their services, without holding any departmental inquiry as envisaged by law. He, therefore, submitted that the impugned order of dismissal is in gross violation of the settled principles of service jurisprudence and is also barred by the principle of Res Judicata.
14.2 Learned counsel Mr. Pujara submitted that the respondents have passed the impugned order of termination by relying upon the judgment of this Court rendered in L.P.A. No.2051/2010 & allied matters dated 06.05.2011. The said appeal was preferred by those Primary Teachers who were terminated from service in the year 1993 and who had remained unemployed, even after several rounds of litigations. The petitioners were not party to the said proceedings and therefore, they could not be equated with the Primary Teachers of L.P.A. No.2051/2010 & allied matters since the controversy is different in both the cases. The petitioners were neither party to the proceedings of L.P.A. No.2051/2010 & allied matters nor any direction was issued by the Division Bench in the said proceedings to terminate the services of the petitioners herein.
Therefore, the respondents have committed grave injustice to the petitioners and have also committed a wrongful act under the guise of the directions of this Court.
14.3 Learned counsel Mr. Pujara submitted that the Division Bench, in its judgment rendered in L.P.A. No.2051/2010 & allied matters, had never issued directions to terminate the services of the petitioners herein. However, the respondents read the directions in the manner they liked and took the punitive action of terminating the services of the petitioners, in utter disregard of the settled principles of service jurisprudence and also in gross violation of the earlier orders of this Court rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, which was confirmed in L.P.A. No.197/2001 & allied matters.
14.4 Mr. Pujara learned counsel submitted that the provisions of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997 were not followed before terminating the services of the petitioners.
14.5 Learned counsel Mr. Pujara further submitted that the factum of withdrawal of L.P.A. No.197/2001& allied matters, preferred by the respondents herein against the judgment and order passed by the learned Single Judge in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, was not brought to the notice of the Division Bench, which was seized with L.P.A. No.2051/2010 & allied matters. Had the Division Bench been made aware by the respondents herein about the withdrawal of L.P.A. No.197/2001 & allied matters, then it would not have overruled the judgment and order rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000 since it was confirmed by another Division Bench in L.P.A. No.197/2001 & allied matters vide order dated 08.05.2003. The respondents intentionally suppressed the factum of passing of the order in L.P.A. No.197/2001 & allied matters dated 08.05.2003 from the Division Bench, which was seized with L.P.A. No.2051/2010 & allied matters, with a view to take undue advantage from the proceedings pending before this Court.
14.6 Learned counsel Mr. Pujara submitted that the issue involved in L.P.A. No.2051/2010 & allied matters and L.P.A. No.197/2001 & allied matters are totally different. The said fact is evident from the judgment rendered by the Division Bench in L.P.A. No.2051/2010 & allied matters dated 06.05.2011 wherein, the Bench observed that in L.P.A. No.197/2001 & allied matters, the issue pertained to the order of termination from service. Whereas, in L.P.A. No.2051/2010 & allied matters, challenge was to the power of review exercised by the State Government u/s.24(4) of the Bombay Primary Education Act, 1947. Therefore, the judgment rendered in L.P.A. No.2051/2010 & allied matters ought not to have been made the basis for passing the impugned order of termination.
14.7 Learned counsel Mr. Pujara drew my attention to the communication dated 18.01.2012 of respondent no.3 addressed to respondent no.2. He submitted that in the said communication, the authority has admitted that by letter dated 23.12.2011 he was directed to terminate the services of 111 Primary Teachers and that if they are terminated, then either 75 or 118 vacancies of Schedule Tribe Primary Teachers shall have to be filled up. He submitted that from the particulars given in the said communication dated 18.01.2012, it is evident that the respondents do not have the correct record of the total number of vacancies which were actually filled up in the recruitment process. Thus, the very premise on which the impugned action of dismissal was taken, is baseless.
14.8 Learned counsel Mr. Pujara submitted that the impugned action has been taken under the guidance and command of respondent no.2. Respondent no.3, though being the appointing authority of the petitioners and also the competent authority for holding disciplinary inquiry, was not permitted to take an independent view in the matter. The inquiry conducted by respondent no.3 is merely an eyewash and only a farce. As a matter of fact, respondent no.3 hushedup the socalled inquiry in hot haste and terminated the services of the petitioners within a span of thirty days after issuing the showcause Notice on 30.01.2012.
14.9 Learned counsel Mr. Pujara submitted that the respondent authority has not considered the detailed reply dated 15.02.2012, at AnnexureW to the petition, filed by the petitioners to the showcause Notice dated 30.01.2012 served upon them. He submitted that not a single witness was examined in the inquiry proceedings nor a single document was proved by examining any witness. No findings of fraud or malpractice was recorded against the petitioners, as is revealed from the impugned orders of dismissal. Hence, the entire proceeding initiated by respondent no.3 stood vitiated. He, therefore, submitted that the impugned order of respondent no.2 dated 24.01.2012, the showcause Notice dated 30.01.2012 and the order of termination dated 03.03.2012 deserves to be quashed and set aside.
15. In support of his submissions, learned counsel Mr. Pujara has placed reliance upon the following decisions;
I. In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and another, AIR 1963 SC 786, the Apex Court held that where in a petition for a writ of Certiorari made to the High Court, only the Tribunal whose order was sought to be quashed was made a party but, the persons who were parties before the lower Tribunal and in whose favour the impugned order was passed were not joined as parties, the petition was incompetent and had been rightly rejected by the High Court.
II. In Patel Kantilal Ambalal v. Government of Gujarat, 1993 (1) GCD 690, this Court in Para6 observed thus;
“6. Such appointments could not have been cancelled. In the present case, the appointment was made in the year 1981. The so called irregularity was brought to the notice of the Government in 1983 and inquiry was made and the report of the C.I.D. (Crime) was received in the year 1984 and no action thereafter has been taken. According to that report there was no irregularity in the appointment. If the Government was of the opinion that this police opinion was not correct then some action was required to be taken at that time. But after another lapse of 7 years the Government cannot be permitted to take action on the basis of the defect in the appointment in the year 1981. If that appointment was called in question in any Court after 10 years, no Court of law, justice or equity would have granted any relief of setting aside that appointment and the Court would have refused to go into the merits of the case even if there be a case on merits. Similarly, the Government also cannot wake up from the slumber after period of long years and take action after a decade.”
III. In P.V. Mahadevan v. MD, T.N. Housing Board, (2005) 6 SCC 636, the Apex Court held that inordinate delay of 10 years in initiating departmental inquiry against the appellant, without any convincing explanation from the respondent in respect of delay, would be very prejudicial to the appellant, if the respondent is permitted to proceed further with the inquiry proceedings.
IV. In R.S. Garg v. State of U.P. And others, (2006) 6 SCC 430, the Apex Court in Para33 observed thus;
“33. A discretionary power as is well known cannot be exercised in an arbitrary manner. It is necessary to emphasise that the State did not proceed on the basis that the amendment to the Rules was not necessary. The action of a statutory authority, as is well known, must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor. The same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.”
V. In State of Maharashtra v. Public Concern For Governance Trust and Others, (2007) 3 SCC 587, the Apex Court in Para39 observed thus;
“39. The partyinperson has also pointed out certain findings in the judgment of the High Court. We do not propose to go into the merits of the other contentions which are the subjectmatter of Special Leave Petition No. 336 of 2006. In our opinion, when an authority takes a decision which may have civil consequences and affects the rights of a person, the principles of natural justice would at once come into play. Reputation of an individual is an important part of one's life. It is observed in D.F. Martin v. Minnie Davis [11 1955 American LR 171] and reads as follows;
“The right to enjoyment of a private reputation, unassailed by malicious slander is of an ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.””
VI. In Sanjay C. Patel and others v. Gujarat Urja Vikas Nigam Ltd. and another, 2009 (1) GLR 664, this Court held that the contention that employees had obtained absorption in service fraudulently and hence, no departmental inquiry was necessary for a void appointment could not be accepted since services of confirmed employees could not be terminated without holding fullfledged inquiry under the service rules.
VII. In Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570, the Apex Court in Paras – 14 & 23 observed thus;
“14. Indisputably, a departmental proceeding is a quasijudicial proceeding. The inquiry officer performs a quasijudicial function. The charges levelled against the delinquent officer must be found to have been proved. The inquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the inquiry officer on the FIR could not have been treated as evidence.
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the inquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but, the principles of natural justice are. As the report of the inquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the inquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”
VIII. In State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772, the Apex Court in Paras – 26 to 28, 40 & 41 observed thus;
“26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under :
“7(x). Where the charges government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the inquiry officer shall proceed with the inquiry exparte. In such a case the inquiry officer shall record the statement of witnesses mentioned in the chargesheet in absence of the charged government servant.”
27. A bare perusal of the aforesaid subrule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the chargesheet. Since the government servant is absent, he would clearly lose the benefit of crossexamination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquriy officer acting in a quasijudicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department / disciplinary authority / Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
40. We may also notice here that the counsel for the appellant sought to argue that the respondent had even failed to give a reply to the showcause notice issued under Rule 9. The removal order, according to him, was therefore justified. We are unable to accept the aforesaid submission. The first inquiry report dated 03.08.2001, is clearly vitiated, for the reasons stated earlier. The second inquiry report cannot legally be termed as an inquiry report as it is a reiteration of the earlier inquiry report. Asking the respondent to give reply to the inquiry report without supply of the documents is to add insult to injury.
41. In our opinion the appellants have deliberately misconsstrued the directions issued by the High Court in Writ Petition No. 937 of 2003. In terms of the aforesaid order the respondent was required to submit a reply to the chargesheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an interim order on 07.06.2004 in Writ Petition No. 793 of 2004 directed the appellant to ensure compliance of the order passed by the Division Bench on 23.07.2003. In our opinion, the actions of the inquiry officers in preparing the reports ex parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irrestible that the respondent has been denied a reasonable opportunity to defend himself in the inquiry proceedings.”
IX. In Public Service Commission, Uttaranchal v. Mamta Bisht and others, (2010) 12 SCC 204, the facts were that the selection process was challenged before the High Court in writ petition filed under Article 226 of the Constitution of India. All vacancies advertised were already filled up before writ petition was filed and not a single successful candidate was impleaded before the High Court. The Apex Court held that last selected candidate was a necessary party, as principles enshrined in Order 1 Rule 9 of CPC are applicable to writ proceedings and that nonrejoinder of necessary party was fatal. Therefore, if a person, who is likely to suffer from the order, is not impleaded as a party, principles of natural justice are violated.
X. In J.S. Yadav v. State of Uttar Pradesh and another, (2011) 6 SCC 570, the Apex in Para31 observed thus;
“31. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of nonjoinder of necessary party, the petitionerplaintiff may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person are terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the petitionerplaintiff succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by the petitionerplaintiff. (Vide Prabodh Verma v. State of U.P., Ishwar Singh v. Kuldip Singh, Tridip Kumar Dingal v. State of W.B., State of Assam v. Union of India and Public Service Commission v. Mamta Bisht.) More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post.”
XI. In an unreported decision rendered by the Division Bench of this Court in L.P.A. No.539/1995 filed in S.C.A. No.5389/1993 dated 09.09.2008, the following observations were made in Paras – 16 & 17, which reads thus;
“16. In the show cause notice as well as impugned order of termination it is alleged against the petitioners that they were guilty of irregularity. Once again, the question is as to whether any irregularity could be attributed to the petitioners. The only function of the petitioners in the entire process of selection is to make application pursuant to advertisement along with necessary certificates and testimonials and markssheets. Based on such application and the marks obtained in relevant examination the Selection Committee is to work out the total number of marks. Under the Govt. Circular also the Selection Committee had no power to allot marks beyond allotting marks for passing SSC, PTC examinations and 10 additional marks for passing in special subjects such as Drawing, Physical Training, Sewing etc. The Selection Committee therefore also does not possess any power to allot any marks for performance at interview and in fact it is not the case of the respondents that marks were allotted by the Selection Committee for performance at interview. In view of this peculiar method of selection which is more or less objective and in which subjective element does not appear at any stage, it is very difficult to appreciate as to how the petitioners can be said to be guilty of any irregularity.
17. The relevant date for considering the eligibility for additional marks was to be fixed by the Selection Committee. The candidates have simply submitted their certificates and marks sheets either in original or xerox copies thereof. One fails to understand as to how a candidate can be said to be guilty of any irregularity if he has submitted markssheet or certificate of passing examination subsequent to the date of advertisement but prior to the date of interview. The Selection Committee has with open eyes allotted marks for passing examination in special subjects. Irregularity, if any, can be said to have been committed by the Selection Committee. The candidates cannot be visited with penal consequences for such irregularities allegedly committed by the the District Primary Education Officer or other members of Selection Committee or subordinate staff. In case of no petitioner, it is specifically attributed to him that anyone of the officers was related to the petitioners or had taken special interest in the case of petitioner for extraneous considerations or has acted at the instance or under the influence of the petitioner. In the absence of any allegation of this nature it would be difficult for this Court to come to conclusion that the petitioners were guilty of irregularity attributed to them in the process of selection. From the nature of affidavitinreply and the steps taken by the respondents against erring officers it prima facie becomes clear that the fault lay at the doors of the authorities and not at the doors of the candidates. The authorities are absolutely justified in taking action against such erring officers which they have already taken by initiating departmental proceedings. This Court has no manner of doubt that in case the charges are established against such erring officers the respondents shall take appropriate action against such officers. However, for any misconduct on their part irregularity of the nature alleged cannot be attributed to the candidates and learned Single Judge was of the opinion that the orders of termination of services which are solely based on such allegation of alleged irregularity were not justified.”
16. Mr. V.D. Parghi learned counsel appearing on behalf of the petitioners in S.C.A. No.1978/2012 to 1984/2012 and Mr. P.P. Majmudar learned counsel appearing on behalf of the petitioners in S.C.A. No. 34872/2012, adopted the submissions advanced by learned counsel Mr.
K.B. Pujara and submitted that the action of the respondents is barred by the principle of res judicata and is also in gross violation of the principles of natural justice and the provisions of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997. Therefore, the present petitions deserve to be allowed.
17. Mr. R.A. Mishra learned counsel appearing on behalf of respondent no.3District Primary Education Officer submitted that the petitioners herein have made baseless allegations against respondent no.3 herein. He submitted that this Hon'ble Court had never decided the issue regarding maintainability of fresh proceedings. In fact, while disposing of S.C.A. No.5484/2004 & allied matters, vide order dated 31.03.2005, specific liberty was granted to initiate fresh proceedings for taking appropriate disciplinary action against the petitioners. Therefore, respondent no.3 was never barred from initiating any disciplinary action against the petitioners.
17.1 Learned counsel Mr. Mishra submitted that similarly situated persons, whose services were terminated by respondent no.3, had preferred S.C.A. No. 18219/2003 before the learned Single Judge challenging the power exercised by the State Government u/s.24(4) of the Bombay Primary Education Act, 1947. In the said proceedings, the learned Single Judge recorded a specific finding that the petitioners therein had secured employment illegally in collusion with or with the connivance of the then interview committee. The learned Single Judge found that the petitioners in that petition had not even appeared for interview nor had they made application in their own hand, as required, but, were successful in getting appointment. Therefore, the learned Single Judge held the action of the State Government to be legal and valid. In the present case, since the petitioners had secured appointment by indulging in corrupt practice, their services were terminated.
17.2 Learned counsel Mr. Mishra further submitted that against the judgment and order rendered in S.C.A. No.18219/2003 dated 01.10.2004, the petitioners therein had preferred L.P.A. No.2051/2010 & allied matters. In the said proceedings, the Division Bench came to the conclusion that the judgment and order in S.C.A. No.11317/2000 & allied matters dated 27.12.2000 had been passed on wrong facts and consequently, overruled the said judgment and affirmed the view taken in S.C.A. No.18219/2003. Considering the largescale corruption and anomalies in the recruitment process, the Division Bench directed the State Government to issue fresh Circular regarding the backlog of Schedule Tribe vacancies and thereafter, to hold fresh selection process. He submitted that it was in pursuance of the aforesaid directions of the Division Bench in L.P.A. No.2051/2010 & allied matters dated 06.05.2011 that respondent no.3 had issued the showcause Notice dated 30.01.2012 and ultimately, terminated the services of the petitioners herein. Therefore, no illegality or impropriety was committed by respondent no.3, as has been alleged by the petitioners.
17.3 Learned counsel Mr. Mishra submitted that in the selection process undertaken by the then respondent no.3, 614 candidates were selected and 56.42% was fixed as the minimum percentage of marks required for selection. However, there were many cases where persons had obtained appointments though their names did not figure in the select list and they were not having the prescribed minimum percentage of marks. Such appointments could not have been obtained unless the candidates concerned were party to the fraud. It was only in those cases where, admittedly, appointments were obtained by fraud and illegality that termination orders were passed. Since the termination orders were passed after following due procedure, they could not be faulted with.
17.4 Learned counsel Mr. Mishra further submitted that L.P.A. No.197/2001 & allied matters were withdrawn by respondent no.3 so as to conduct fullfledged regular inquiry against the petitioners into the malpractices committing by them for obtaining appointments. Pursuant thereto, inquiry was conducted and when the fraud was proved, their services came to be terminated. In case of legal and valid appointments, the teachers concerned were continued in service. It was only those Primary Teachers, who had obtained appointment orders by committing fraud, were terminated from service.
17.5 Learned counsel Mr. Mishra submitted that in the selection process in question, largescale fraud was committed and as a result thereof, the proceedings stood vitiated. It is well settled that any decree or order obtained by playing fraud is a nullity or non est in the eyes of law. Such a decree or order can be challenged in any Court of law at any time or even in collateral proceedings. When it came to the knowledge of respondent no.3 that largescale fraud and illegality had been committed by the petitioners for securing appointment, their services came to be terminated as the appointment orders stood vitiated. He, therefore, submitted that the impugned action of the respondents is in consonance with the settled position of law and hence, the present petitions deserve to be rejected.
18. Mr. RA Mishra learnred counsel for respondent no.3 has placed reliance upon a decision of the Apex Court in the case of A.V. Papayya Sastry and others v. Government of A.P. and others, (2007) 4 SCC 221, wherein, it has been held that fraud vitiates all judicial act whether in rem or in personam and that judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by Court of first instance or by the final Court. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings and this is an exception to Art.141 of the Constitution and doctrine of merger.
19. Mr. JK Shah learned AGP appearing on behalf of respondents no.1 & 2 supported the action of the respondents and submitted that the petitioners had resorted to corrupt practices for the purpose of securing appointment and that in view of the judgment and order passed by the Division Bench in L.P.A. No.2051/2010 & allied matters dated 06.05.2011, respondent no.3authority was justified in terminating the services of the petitioners. He, therefore, submitted that the present petitions deserve to be rejected.
20. Having heard both the sides, it appears that the present round of litigation is third in the series of litigations filed by the petitioners against the respondents. After joining service in 19901991, respondent no.3 issued showcause Notice dated 09.01.1996 to the petitioners directing to show cause as to why their services should not be terminated on the ground that the petitioners had indulged into corrupt practices for securing appointment. At that time, the main charge in the showcause Notice was that the petitioners did not possess the requisite minimum percentage of marks as per the Select List and had secured appointment by committing fraud. The petitioners replied to the said showcause Notice.
21. However, in exercise of powers u/s.24(1) of the Bombay Primary Education Act, 1947, respondent no.3 terminated the services of the petitioners on the ground that the petitioners had resorted to corrupt practices for getting appointment, by order dated 12.10.2000. Against the said order of termination, the petitioners preferred writ petition being S.C.A. No.11317/2000 & allied matters before this Court. While disposing of the said group of petitions, vide judgment and order dated 27.12.2000, this Court made the following observations in the operative part of the judgment;
“,,,,,,,It is also necessary to consider one more aspect of the matter that any allegation against the petitioners about fraud, irregularities, misrepresentation and collusion for obtaining appointment as per service rules, it is a misconduct alleged to have been committed by the petitioner. The District Primary Education Officer of the District Education Committee, Junagadh has exercised the powers under section 24 (1) of the Bombay Primary Education Act, 1947. The District Primary Education Officer has power to take all disciplinary action including removal or dismissal against the staff maintained under section 20(1). The primary school teachers are covered as a stff maintained under section 20 of the Act and, therefore, the Gujarat Panchayat Service (Discipline and Appeal) Rules,1964 are applicable to the petitioners. The petitioners are the members of the panchayat service and are panchayat servants. Therefore, before passing any punishment order against the petitioners in respect of any major penalty, then a procedure prescribed under rule 7 of the Rules, 1964 is required to be followed. Undisputedly, rule 7 of the 1964, Rules has not been followed by the repondents. The petitioners who were in service since more than ten years have been removed and their services have been terminated on the basis of the alleged serious misconduct against them and order of punishment has been passed by way of disciplinary action under section 24(1) of the Bombay Primary Education Act 1947. Therefore also, regular departmental inquiry which has not been held before passing termination order amounts to denial of effective reasonable opportunity to the petitioners which has violated the basic principles of natural justice.
Considering all the above referred decisions and the submissions made by both the learned advocates and also considering the facts which are on record, the termination of each of the petitioners herein on the ground that they have secured the appointment by committing fraud and mal practices nepotism and irregularity without holding regular inquiry as provided under the Gujarat Panchayats (Discipline and Appeal) Rules, 1964 are required to be quashed and set aside. On such alleged misconduct, the services of the petitioners herein have been terminated and, therefore, regular departmental inquiry ought to have been initiated before terminating their services. The respondents were aware about the said fraud and mal practice committed by the petitioners and their own officers as per their reply but at that point of time, no prompt action has been taken against the petitioners immediately and the respondents waited for a pretty long time and more than five years had gone and thereafter only, notice was issued by the respondents to the petitioners on 9th January, 1996 and thereafter,for a further period of four years, no action was taken and they remained silent and inactive and ultimately on 12th October, 2000, impugned order of termination has been passed. As per my view, during such a long period, they ought to have followed the procedure and ought to have initiated regular departmental inquiry into the charges levelled against the petitioners and thereafter, could have passed appropriate orders but they have not resorted to such procedure and have straightway passed the impugned orders of termination under section 24(1) of the Bombay Primary Education Act,1947 and,therefore, the impugned orders of termination are not tenable. Meaning thereby, these powers has been exercised by the authorities considering the petitioners as staff maintained under section 20 of the said Act of 1947. Thus, the petitioners have been considered as a staff maintained under section 20 of the Act and, therefore, powers under section 24(1) has been exercised for terminating their services and, therefore, as per my view, said termination is not termination simpliciter but it is by way of taking disciplinary action against the staff maintained under sec.20 of the said Act. If this aspect is considered that the petitioners is the staff maintained under sec. 20, then, the second logical conclusion would be that in such situation, the staff maintained under sec. 20 of the Act has to be given the protection of the Gujarat Panchayat Services (Discipline and Apeal) Rules, 1964. However,such protection has not been given to the petitioner and the procedure as provided under the said rules of 1964 has not been followed by the respondents before terminating their services on such alleged misconduct. Therefore, detailed procedure which has been prescribed under the said rules of 1964 under rule 7 sub rule (1) to (14) is required to be followed which has not been done in the case before hand. As per my view, these are the mandatory requirements which have not been followed by the respondents before passing the impugned orders of termination against the petitioners by way of punishment and, therefore, the orders of termination passed against the petitioners herein are against the provisions of the Gujart Panchayat Service (Discipline and Appeal) Rules, 1964 and are also against the principles of natural justice and therefore, they are required to be quashed and set aside as the same have been passed without holding regular proper inquiry against the petitioners and have been passed without affording proper opportunityof hearing to the petitioners.
In view of the above, as per my view, the order of dismissal dated 12th October, 2000 passed against the petitioners herein is contrary to the basic principles of natural justice and is also contrary to the relevant provisions of 1964 Rules and, therefore, the order of dismissal are illegal, contrary to the principles of natural justice and are, therefore, required to be quashed and set aside.
For the aforesaid reasons, in the result, all these petitions are allowed. Impugned order of dismissal in each petition dated 12th October, 2000 passed against the petitioners is hereby quashed and set aside. The respondents are hereby directed to reinstate each petitioner in service within six weeks from the date of receipt of writ of this order and to pay the back wages to each petitioners within eight weeks from the date of receipt of writ of this order for the intervening period as if the services of the petitioners herein were not terminated and they had continued in service. Rule is made absolute in terms indicated herein above with no order as to cost. Direct Service is Permitted.”
[emphasis supplied]
22. It is clear from the judgment and order dated 27.12.2000 passed in S.C.A. No.11317/2000 & allied matters that respondent no.3 had terminated the services of the petitioners on the ground that they had secured appointment by committing fraud and indulging into malpractice but, without holding regular inquiry as provided under the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997. It is also clear that the learned Single Judge had quashed the order of termination mainly on the ground that no proper inquiry, as envisaged under the provisions of the said Rules was conducted before passing the order of termination nor the principles of justice were observed.
23. At this stage, a reference to the provision of Rule8 of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997 is apposite, which reads thus;
“8. Procedure for imposing major penalties. (1) No order, imposing on a member of the Panchayat Service any of the penalties specified in clauses (3) to (6) of rule 6, shall be passed except after a formal inquiry is held as far as may be, in the manner hereinafter provided.
Penalties which are termed as “major penalties” under the Rules are specified in Rule6, which reads thus;
“6. Penalties. (1) & (2) …...
(3) Reduction in rank including reduction to a lower post or timescale or to a lower stage in a timescale.
(4) Compulsory retirement.
(5) Removal from service not disqualifying for future employment.
(6) Dismissal from service which shall ordinarily be a disqualification for future employment.”
24. The above provisions of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997 specifically provide that before imposing any “major penalty”, an inquiry is to be conducted. Subclause (6) of Rule6 pertains to imposition of “major penalty” of dismissal from service. Before imposing the “major penalty” of “dismissal from service”, the respondent authority is required to follow the procedure prescribed in Rule8 of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997, which makes provision for holding an inquiry. However, no such inquiry was held by the respondentauthority before imposing the “major penalty” of “dismissal from service”. Therefore, the learned Single Judge set aside the order of termination dated 12.10.2000, since it was in breach of the provisions of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997. Against the judgment dated 27.12.2000, the respondents had preferred L.P.A. No.197/2001 & allied matters. The said appeals were disposed of by order dated 08.05.2003, which reads thus;
“Learned Counsel Mr. Mishra for the appellants in all these appeals states that he has instructions from the appellants in all these appeals that the appellants will hold fullfledged regular inquiry against all the respondentsteachers regarding their socalled alleged malpractices in obtaining the appointments by practising fraud. Therefore, he does not want to proceed further. In that view of the matter, all these appeals stand disposed of and the interim relief granted earlier against grant of back wages, on civil applications, which have been already disposed of, stands vacated in all cases. Civil Application No.3141 of 2001 also stands dismissed.”
[Emphasis supplied]
25. Pursuant to the withdrawal of the aforesaid group of Letters Patent Appeals, the respondentauthority issued fresh showcause Notice dated 12.04.2004 to the petitioners seeking their reply on the charge that they had secured appointment by indulging into corrupt practice. The petitioners were directed to remain present for personal hearing, along with necessary documents in support of their case, on 27.04.2004 at the place and time mentioned in the Notice. The petitioners remained present on the said date and submitted their detailed reply to the show cause Notice. On the very same day, another showcause Notice, in the form of Final showcause Notice dated 26/27.04.2004, was issued to the petitioners to showcause as to why their services should not be terminated for the reason that the documents submitted by them, in support of their case, at the time of personal hearing on 26.04.2004, were not matching with the records available with the Department. They were asked to produce additional documents, if any, in support of their case on 05.05.2004 at the place and time mentioned in the Notice.
26. Against the said Notices, the petitioners approached this Court, by way of filing S.C.A. No.5484/2004 and S.C.A. No.5639/2004. While issuing Notice on 03/04.05.2004, this Court [Coram : A.L. Dave, J.] passed the following order;
“Heard learned Advocate Mr. K.B.Pujara and perused the papers.
It is indicated that the proposed action is a successive action following an earlier action on the same count which was quashed and set aside by this Court in Special Civil Application No. 11317 of 2000 by judgment and order dated 26th/27th December 2000. The Letters Patent Appeal preferred by the respondent authority challenging the said order came to be withdrawn and therefore, the said order attained finality.
In Special Civil Application No.11317 of 2000, the learned Single Judge held that impugned action was delayed and that itself was fatal on the ground that show cause notice dated 9th January 1996 related to the incident of 1990 in respect of fraud and irregularities committed in the year 1990 and, therefore, delay in issuance of show cause notice after about five years and then delay in passing the order of dismissal were vitiated by delay. Learned Advocate Mr.Pujara, therefore, submitted that besides other findings, this finding also attained finality and, therefore, it is not open for the respondent authority to take action afresh although the Letters Patent Appeal was withdrawn by the respondent authority probably with a view to hold fullfledged regular inquiry.
There appears substance in the contention raised by learned Advocate Mr.Pujara because the petition was allowed on various grounds which included delay, inaction, want of requisite proceedings under the Rules, violation of principles of natural justice etc. and holding of fullfledged inquiry might cure one of the grounds but the other grounds and the findings of the learned Single Judge which have now attained finality as on today would still remain to be met with by the respondent.
In light of what is stated above, this case seems to be one of the rare cases where the Court may interfere at the stage of show cause notice. Hence, notice returnable on 5th July 2004. By way of adinterim relief, there shall be no action pursuant to the impugned show cause notice. Direct service is permitted.”
27. While passing the aforesaid interim order, the learned Single7 Judge took note of the fact that holding of a fullfledged inquiry alone would not make good the action of the respondents since the order of termination dated 12.10.2000, which was subjectmatter in S.C.A. No.11317/2000 & allied matters, was found to be bad in law on the grounds of delay, inaction and noncompliance of the provisions of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997 and also since the said judgment rendered in S.C.A. No.11317/2000 & allied matters had attained finality on account of disposal of L.P.A. No.197/2001 & allied matters. Therefore, by way of adinterim, the learned Single Judge stayed the operation of the showcause Notice dated 12.04.2004 and 26/27.04.2004.
28. Subsequently, the said group of petitions being S.C.A. No.5484/2004 & allied matters came to be disposed of by this Court [Coram : Akil Kureshi, J.] by order dated 31.03.2005, which reads thus;
“Learned counsel Shri R.A. Mishra appearing for the respondent states under instructions that the respondent will be withdrawing the notices dated 12th April 2004 produced at annexure J collectively to Special Civil Application Nos.5484/04 and 5639/04 (whereas the same are produced at Annexure I collectively in Special Civil Application No.5794/04) and will also be withdrawing the subsequent notices dated 26th/27th April, 2004 produced at Annexure M to Special Civil Application No.5484/04 and 5639/04 (whereas the same are produced at Annexure L to Special Civil Application No.5794/04), with liberty to start fresh proceedings for taking appropriate disciplinary action against the petitioners. Without going into the validity of the contention of the learned counsel for the petitioners that such fresh proceedings would not be maintainable in view of the decision of this Court in Special Civil Application No.11317/00 and allied matters, when the very foundation of the present petitions in which the said show cause notices are under challenge no longer survives, I do not see any reason to entertain the petitions any longer at this stage and the petitions are therefore disposed of as having become infructuous. Notice is discharged in each petition with no order as to costs.”
[Emphasis supplied]
29. From the order passed in S.C.A. No.5484.2004 & allied matters dated 31.03.2005, it is clear that the showcause Notices were withdrawn on the statement made by learned counsel for the respondents that the authority would initiate fresh disciplinary action against the petitioners. Earlier also, the respondents had withdrew L.P.A. No.197/2001 & allied matters, filed against the judgment and order rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, with a view to hold full fledged departmental inquiry against the petitioners.
30. Here, it is pertinent to note that the main ground on which the first order of termination dated 12.10.2000 was passed, which was later quashed and set aside vide order dated 27.12.2000 passed in S.C.A.
No.11317/2000 & allied matters, was the alleged involvement of the petitioners in corrupt practices for securing appointment. The subsequent showcause Notice dated 12.04.2004 and the final showcause Notice dated 26/27.04.2004 also had the same ground as the main charge. However, on both the occasions, the action of the respondents met with severe repercussions in the Court of Law.
30.1 On the first occasion, the order of termination dated 27.12.2000, which was passed for the alleged involvement of the petitioners in corrupt practice for securing appointment, was quashed and set aside on different grounds and the main ground being noncompliance of the principles of natural justice; and on the second occasion, the showcause Notices, issued once again on the same ground of alleged involvement of the petitioners in corrupt practice for securing appointment, was withdrawn by the authority as they were desirous to initiate fresh disciplinary action against the petitioners. It may be noted that withdrawal was sought on such statement in spite of the fact that the earlier order of termination dated 27.12.2000 was held to be illegal by the learned Single Judge on the grounds of delay, inaction and noncompliance of the provisions of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997, which was confirmed in L.P.A. No.197/2001 & allied matters. The said order has not been challenged before the higher forum and thus, it has attained finality. It was not that the earlier order of termination dated 12.10.2000 was set aside on the ground of delay alone.
31. Having withdrawn L.P.A. No.197/2001 on 08.05.2003 with a view to hold fullfledged disciplinary inquiry against the petitioners, the respondentauthorities attempted to employ the same tactic again in the proceedings of S.C.A. No.5484.2004 & allied matters wherein, they sought permission to withdrew the showcause Notices issued to the petitioners on the same ground of alleged involvement of the petitioners in corrupt practice for securing appointment with a view to initiate fresh disciplinary action against the petitioners.
32. However, taking note of the typical stand taken by the respondent authorities, the learned Single Judge rightly observed in the order dated 31.03.2005 that the liberty sought by the respondent has to pass through the test of “maintainability” in view of the decision rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, where the very foundation of S.C.A. No.5484/2004 & allied matters wherein the show cause Notices dated 12.04.2004 and 26/27.04.2004 were under challenge, no longer survived.
33. The respondents have attempted to defend their action by taking shelter of the observations made by the learned Single Judge in another writ petition being S.C.A. No.18219/2003 decided on 01.10.2004, which was preferred by Scheduled Tribe Primary Teachers who were appointed in pursuance of the Advertisement in question. In the said petition, challenge was to the orders dated 07.04.1998 and 22.04.1999 passed by the State Government in exercise of the power of review conferred by Section 24(4) of the Bombay Primary Education Act, 1947.
33.1 In that case, the petitioners were appointed as Primary Teachers in pursuance of the Advertisement dated 13/15.02.1990. However, upon investigation by the authority, it was learnt that large scale irregularities were committed in the recruitment drive and that amongst the persons selected and appointed, many were not eligible for appointment. It was also found that many persons, who had not applied in response to the said Advertisement and who had not appeared before the Interview Committee, were appointed as Primary Teachers. Therefore, the authority dismissed such persons from service in the year 1993. After considering the totality of facts, the learned Single Judge recorded the finding that against the 469 vacant posts for appointment of Scheduled Tribe candidates, the then Committee had decided to make appointment of 602 Scheduled Tribe Primary Teachers. As against the said decision, the then Committee had made as many as 760 appointments of Scheduled Tribe Primary Teachers. The learned Single Judge found that the petitioners therein and other candidates had not even appeared for Interview nor had made application in their own hand, as required but, still they secured appointment. Therefore, the learned Single Judge dismissed the petition and confirmed the order by the State Government u/s.24(4) of the Bombay Primary Education Act, 1947.
34. Other similarly situated Scheduled Tribe Primary Teachers had preferred S.C.A. No.10801/2003 & allied matters before this Court challenging similar orders dated 07.04.1998 and 22.04.1999 passed by the State Government in exercise of the powers of review conferred by Section 24(4) of the Bombay Primary Education Act, 1947. As the issue was already decided in S.C.A. No.18219/2003 dated 01.10.2004, the said group of petitions were rejected in terms of the judgment rendered in S.C.A. No.18219/2003 vide judgment dated 25.03.2009.
34.1 Against the judgment and order rendered in S.C.A. No.10801/2003 & allied matters dated 25.03.2009, some of the original petitioners in the said group of petitions had preferred L.P.A. No.2051/2010 & allied matters before the Division Bench.
34.2 Before we proceed further, it would be pertinent to note that it was the judgment and order passed by the Division Bench in this group of appeals, namely, L.P.A. No.2051/2010 & allied matters decided on 06.05.2011, that was made the foundation by respondent no.2 for passing the order dated 24.01.2012 by which direction was issued to respondent no.3 to terminate the services of the petitioners herein. The relevant portion of the judgment rendered in L.P.A. No.2051/2010 & allied matters is reproduced hereunder for ready reference;
“6. Learned counsel for the respondents relied on the decision of learned Single Judge dated 01.10.2004 passed in Special Civil Application No.18219 of 2003 wherein the learned Single Judge held that order of dismissal of service of the petitioners who were Primary School Teachers was passed less than two years of their joining service and 469 posts of Primary Teachers were vacant for filling from the candidates of Schedule Tribes and the Committee decided to make appointment of 602 Schedule Tribe candidates as Primary School Teachers and 760 appointments were made by the Committee of Primary School Teachers which was in excess of the vacant posts. The learned Single Judge further found that the candidates were not eligible for appointment either because they had not attained the required age or they had not secured prescribed marks at the SSC examination. They were also not able to prove before the learned Single Judge or before the Tribunal or before the State Government that they made an application in pursuance to any advertisement. The learned Single Judge recorded a categorical finding of fact that in absence of formal application in writing and in absence of interview by the Interview Committee, the petitioners could not have secured employment without being active party to the illegality committed by the Interview Committee.
7. Learned counsel for the petitioners relied on the decision dated 27.12.2000 of another Learned Single Judge passed in the case of Manat Khemraj Somaji v. District Primary Education Officer, Special Civil Application No. 11317 of 2000 & allied matters whereby the learned Single Judge allowed the writ petitions and set aside the dismissal order passed by the State Government. According to the learned counsel for the petitioners, though the said judgment was cited before the learned Single Judge, the same was not considered.
8. ......
9. In pursuance of the aforesaid Circular, the Government issued advertisement for filling the backlog vacancies of Schedule Tribe candidates. But this circular does not mention how the figure of 4900 backlog vacancies have been arrived at. The circular mentions that Schedule Tribe vacancies could not be filled in pursuance of the advertisement as sufficient number of candidates were not available, but the circular does not specify that in which advertisement, how many vacancies could not be filled from Schedule Tribe candidates. The circular was required to state clearly that in pursuance of which particular advertisement, how many posts of Schedule Tribe candidates were advertised and how many vacancies under that advertisement remained unfilled. The unfilled vacancies which could not be filled in pursuance of the advertisement would constitute backlog vacancies. But a vacancy which has not been advertised cannot be treated to be a backlog vacancy. The mere mention of the fact that the advertisement had been issued from time to time was not sufficient. The details of the backlog vacancies, number of vacancies in each advertisement which could not be filled has to be stated clearly in the circular and only then, the respondents can proceed to fill the backlog vacancies....
10. to 12. .....
13. The argument of learned counsel for the appellants that the decision in Manat Khemraj Somaji (Supra) dated 27.12.2000 was not considered by the Learned Single Judge which decided Special Civil Application No.18219 of 2003 is not correct. The decision was considered by the Learned Single Judge. We could not persuade ourselves to agree with the decision in Manat Khemraj Somaji (Supra) and according to us, it does not lay down the correct law on the facts and it is overruled. We agree with the view taken by the learned Single Judge in Palas Prabhatsinh Mohansinh (Supra) decided on 01.10.2004 and in Dilipbhai Rameshbhai Jain v. Junagadh District Panchayat and another in Special Civil Application No.10373 of 1995 decided on 13.05.2010.
14. Therefore, in our opinion, it is expedient to direct the State Government to find out, by issuing a new circular stating clearly therein that, as to how backlog vacancies of 469 has been arrived at, they were subject matter of which advertisement and how many vacancies in that advertisement were filled and how many vacancies could not be filled which has resulted in backlog vacancies. This entire exercise shall be completed by the State Government within a period of four months from the date on which copy of this order is produced before the State Government. If the State Government comes to the conclusion that 469 backlog vacancies were found in violation of the decision of the Apex Court referred to hereinabove, then they will find out the correct number of vacancies which are to be filled from amongst the Schedule Tribe candidates and the same shall be advertised in accordance with law and recruitment shall be made of Primary School Teachers.
15. In Manat Khemraj Somaji (Supra), the learned Single Judge has noted down details of mass irregularities and illegalities committed in the selection but has set aside the dismissal order on the ground of right to livelihood guaranteed under Article 21 of the Constitution of India and on principles of natural justice holding therein that the petitioners were required to be afforded an opportunity of hearing prior to passing of the dismissal order. In our opinion, where the entire process of selection is vitiated on the ground of mass irregularities and illegalities pointed out by the selection committee in appointment of Primary School Teachers who have not even applied in pursuance of the recruitment and the candidates who were not eligible in terms of the advertisement had been selected, such candidates do not deserve any sympathy of the Court and the selection made by the District Primary Education Committee deserve to be set aside. We find ourselves unable to persuade ourselves to agree with the decision taken by the learned Single Judge in view of mass irregularities and illegalities, in the selection process.
16. Since the petitioners were appointed in the year 1991, most of them have now become overaged. If the State Government holds fresh selection by issuing a fresh advertisement, age relaxation shall be granted to these petitioners who have been selected and whose appointments have been cancelled, provided they are otherwise eligible, so that they may appear in the next selection which is to be held by the State Government as per the above directions.
17. We further add that before proceeding to hold fresh selection, the State Government shall issue a new circular by clearly spelling out therein number of vacancies, how many vacancies of Schedule Tribes were advertised, how many Schedule Tribes candidates were appointed and how many vacancies could not be filled in that selection and whether those vacancies were carried forward in the next selection and again re advertised and how this backlog vacancies have been worked out by the State Government shall be clearly explained in the fresh circular to be passed by the respondents before they proceed to hold fresh selection with regard to fill 469 posts or such number of posts which is required to be filled from amongst the Schedule Tribe candidates.
18. Subject to the above directions, we do not find any merit in these appeals. These appeals fail and are accordingly dismissed. Rule discharged.
19. In view of dismissal of appeals, no orders are required to be passed in the Civil Applications and the same are accordingly dismissed. Direct service is permitted.“ [Emphasis supplied]
34.3 It is required to be noted that the petitioners herein were not party to the proceedings of S.C.A. No.10801/2003 & allied matters decided on 25.03.2009 nor were they party to the proceedings of S.C.A. No. 18219/2003 decided on 01.10.2004. L.P.A. No.2051/2010 & allied matters arose out of the judgment and order rendered in S.C.A. No.10801/2003 & allied matters disposed of on 25.03.2009.
34.4 Further, challenge in S.C.A. No.10801/2003 & allied matters was to the orders passed by the State Government under Section 24(4) of the Bombay Primary Education Act, 1947, which was disposed of by the learned Single Judge on the same terms on which similar matter being S.C.A. No.18219/2003 was disposed of vide judgment and order dated 01.10.2004.
34.5 During the hearing of L.P.A. No.2051/2010 & allied matters, it was not brought to the notice of the Division Bench concerned that the judgment and order rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000 passed in respect of the petitioners herein was challenged by the respondents by way of filing L.P.A. No.197/2001 & allied matters. L.P.A. No.197/2001 & allied matters was disposed of as withdrawn and it was not challenged before the higher forum. Thus, the order passed in S.C.A. No.11317/2000 & allied matters dated 27.12.2000 has attained finality.
35. In my opinion, during the hearing of L.P.A. No.2051/2010 & allied matters, it was the duty of the respondents herein to bring to the notice of the Division Bench concerned that the decision rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000 was challenged by way of filing L.P.A. No.197/2001 & allied matters and that the said group of L.P.As. have been disposed of, as having been withdrawn, vide order dated 08.05.2003. The petitioners herein were not party to the proceedings of either S.C.A. No.18219/2003 or S.C.A. No.10801/2003 & allied matters. Had the petitioners been party in the aforesaid group of petitions, then the Division Bench concerned, which was hearing L.P.A. No.2051/2010 & allied matters, would not have passed the observations made in Para13 of its judgment, which reads “The argument of learned counsel for the appellants that the decision in Manat Khemraj Somaji (Supra) dated 27.12.2000 was not considered by the Learned Single Judge which decided Special Civil Application No.18219 of 2003 is not correct. The decision was considered by the Learned Single Judge. We could not persuade ourselves to agree with the decision in Manat Khemraj Somaji (Supra) and according to us, it does not lay down the correct law on the facts and it is overruled. We agree with the view taken by the learned Single Judge in Palas Prabhatsinh Mohansinh (Supra) decided on 01.10.2004 and in Dilipbhai Rameshbhai Jain v. Junagadh District Panchayat and another in Special Civil Application No.10373 of 1995 decided on 13.05.2010”. The respondents herein, who were party in both the above proceedings, ought to have brought the factum of filing and subsequent withdrawal of L.P.A. No.197/2001 & allied matters to the notice of the Division Bench, which was hearing L.P.A. No.2051/2010 & allied matters. However, it was not done which, ultimately, resulted in the passing of the above observations by the Division Bench.
36. Propriety demanded that the respondents herein should have brought to the notice of the Division Bench concerned, which seized with L.P.A. No.2051/2010 & allied matters, the factum of disposal of L.P.A. No.197/2001 & allied matters, vide order dated 08.05.2003 since the respondents herein were party in both the proceedings, namely, S.C.A. No.11317/2000 & allied matters decided on 27.12.2000 and S.C.A. No. 18219/2003 decided on 01.10.2004. If that had been done, the Division Bench seized with L.P.A. No.2051/2010 & allied matters would not have made such observations and would not have overruled the judgment and order rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000.
37. Alternatively, the respondents should have sought permission of the Division Bench seized with L.P.A. No.2051/2010 & allied matters to join the petitioners herein as partyopponents in the said proceedings. However, no such permission was sought at the relevant time. Had the petitioners herein been joined as partyopponents in the proceedings of L.P.A. No.2051/2010 & allied matters, then they would have got proper opportunity to defend their case.
37.1 Now, even if we presume that the judgment rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000 is not a good law as declared by the Division Bench in L.P.A. No.2051/2010 & allied matters, the fact remains that the Division Bench concerned has not set aside the judgment rendered by the learned Single Judge in S.C.A. No.11317/2000 & allied matters. Therefore, even today, the judgment rendered by the learned Single Judge in S.C.A. No.11317/2000 & allied matters holds ground.
38. While considering the above aspects, it is required to be kept in mind that the very foundation of the order passed by respondent no.2 dated 24.01.2012 is the judgment and order rendered by the Division Bench in L.P.A. No.2051/2010 & allied matters dated 06.05.2011. Non rejoinder of the petitioners herein, as partyopponents in the said proceedings, has adversely affected the rights of the petitioners, who had been reinstated in service pursuant to the judgment and order rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, which was confirmed in L.P.A. No.197/2001 & allied matters vide order dated 08.05.2003.
39. No order can be passed behind the back of a person, which may adversely affect him and if such an order is passed, then the same is liable to be ignored, as being not binding on such party, as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of nonjoinder of necessary party, the party concerned may not be entitled for the relief sought by him. Thus, the petitioners herein were “necessary party” in the proceedings before the Division Bench which was seized with L.P.A. No.2051/2010 & allied matters in view of the principle rendered by the Apex Court in the cases of Udit Narain Singh Malpaharia (supra), Public Concern for Governance Trust (supra), Public Service Commission, Uttaranchal v. Mamta Bisht (supra) and J.S. Yadav (supra).
40. The first order of termination dated 12.10.2000 was set aside by this Court in S.C.A. No.11317/2000 & allied matters decided on 27.12.2000 on the ground that it was in breach of the principles of natural justice and also the provisions of Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997. It is evident from the said judgment and order dated 27.12.2000 that the main ground on which the showcause notice dated 09.01.1996 was issued and the subsequent order of termination dated 12.10.2000 was passed, was that the petitioners had resorted to corrupt practices for securing appointment. In the subsequent show cause Notices dated 12.04.2004 and 26/27.04.2004 also, the main charge pertained to the alleged involvement of the petitioners in corrupt practices for securing appointment.
40.1 When the order of termination dated 12.10.2000, issued on the ground of alleged involvement of the petitioners in corrupt practices for securing appointment, was quashed and set aside by this Court, the respondents were barred by the principle of Res Judicata to reagitate the issue again in the subsequent showcause Notices dated 12.04.2004 and 26/27.04.2004, which was seriously taken note of, initially, by the learned Single Judge while granting adinterim relief in S.C.A. No. 5484/2004 & 5639/2004, vide order dated 03/04.05.2004 and subsequently, by another learned Single Judge while disposing of the said two petitions, vide order dated 31.03.2005, which has been discussed in the earlier paragraphs.
41. It appears that the observations made by the two learned Single Judges, who had occasion to consider S.C.A. No. 5484/2004 & allied matters at different stages, was not sufficient for the respondents to stop their play. They continued their act of victimization by issuing another showcause Notice dated 30.01.2012 on the same ground of alleged involvement of the petitioners in corrupt practices for securing appointment. The said action of the respondents of issuing the show cause Notice dated 30.01.2012 is again barred by the principle of Res Judicata since the ground is the same. The respondents continued victimization of the petitioners by interpreting the judgment of the Division Bench, rendered in a completely different proceeding in L.P.A. No.2051/2010 & allied matters, in their own manner.
42. By interpreting the directions issued by the Division Bench in L.P.A. No.2051/2010 & allied matters indifferently, respondent no.2 directed respondent no.3 to initiate appropriate disciplinary action against the petitioners. Therefore, respondent no.3, who is appointing authority and also the competent authority for initiating any disciplinary action, had no other option but, to act as per the dicta of respondent no.2, lest it would be to the utter dislike of respondent no.2. An inquiry officer, acting as a quasijudicial authority, is in the position of an independent adjudicator. He is not supposed to be a representative of a Department / Authority. He must be wholly unbiased and must not act as a Prosecutor as well as a Judge. His function is to examine evidence presented by the Department and in absence of delinquent official, He has to see as to whether rebutted evidence is sufficient to hold that charges are proved. However, in the present case, respondent no.3 acted as per the directions of respondent no.2 and not independently. The final decision was already taken by respondent no.2 before respondent no.3 could conduct a fullfledged inquiry.
43. Even if we presume that respondent no.3 had no opportunity to hold a proper inquiry but, the fact remains that the very basis of holding an inquiry into the allegation in question, is barred by the principle of Res Judicata. Therefore, it was not open to the respondents to hold any further inquiry into the matter, as directed by respondent no.2.
44. The respondents have been pleading “fraud” as their main ground of defence. There is no dispute about the fact that a judgment or order obtained by playing fraud is a nullity and non est in the eyes of law and that such judgment or order can be challenged in any Court at any time. However, it is not an absolute proposition of law, as has been discussed by the Division Bench of this Court in Paras – 16 & 17 of the judgment rendered in L.P.A. No.539/1995 dated 09.09.2008. The petitioners herein were appointed under Section 24 of the Bombay Primary Education Act, 1947. Even if it is presumed that the petitioners had obtained the initial appointment fraudulently or by resorting to malpractice, the much cherished rule of affording reasonable opportunity to party before passing any adverse orders, makes it incumbent upon all to follow the principles of natural justice in every case, before inflicting any adverse order upon any party. In this case, the action of the respondents of once again terminating the services of the petitioners on the ground so alleged, though is barred by the principle of Res Judicata, is also in clear breach of the provisions of Rule8 of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997.
45. As discussed in the foregoing paragraph, Rule8 of the Rules specifically provides that before imposing any “major penalty” like dismissal from service, which has been classified as “major penalty” under subclause (6) of Rule6 of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997, the procedure prescribed in Rule8 has to be followed. In Saroj Kumar Sinha's case (supra), the Apex Court held that employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him. However, in the present case, admittedly, no such procedure as prescribed in Rule8 of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997, has been followed by the respondents. Therefore, the action of the respondents is also in clear breach of the statutory provisions governing the field.
46. In the case of Roop Singh Negi (supra), the Apex Court has held that mere production of documents is not enough and that contents of documentary evidence has to be proved by examining witness. In the showcause Notice dated 30.01.2012 issued by respondent no.3, reliance has been placed on several documents. Even if we presume that the respondents proposed to initiate proper inquiry by issuing showcause Notice, the fact remains that no witness was examined by the authority to prove the documents on which they had relied upon for passing the order of termination. Therefore, the impugned order of termination dated 03.03.2012 is bad in law, as it is in breach of the principles of natural justice, the provisions of Rule8 of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997 and also in view of the principle rendered in the case of State of Uttar Pradesh v. Saroj Kumar Sinha (supra).
47. Another important ground on which the impugned action of the respondents could be termed as illegal is delay. The respondent authority withdrew the showcause Notices dated 12.04.2004 and 26/27.04.2004 issued to the petitioners, after it were assailed before this Court in S.C.A. No.5484/2004 and 5639/2004. Earlier also, L.P.A. No.197/2001 & allied matters filed against the judgment and order rendered in S.C.A. No.11317/2000 & allied matters dated 27.12.2000, was withdrawn by the respondentauthority on 08.05.2003 with a view to initiate disciplinary action against the petitioners. Even if we ignore the aspect of validity or otherwise of the showcause Notices dated 12.04.2004 and 26/27.04.2004, the fact remains that the same were withdrawn with a view to initiate fresh disciplinary action against the petitioners. However, the socalled inquiry was initiated by issuing show cause Notice only on 30.01.2012, viz. after a period of almost 08 years, and the punitive order of dismissal from service was passed by the authority within a period of 35 days.
47.1 No explanation whatsoever has been offered by the respondent for the inordinate delay in initiating disciplinary action against the petitioners. The appointments were made in the year 1991. Initially, the said appointments were challenged by issuing showcause Notice on 09.01.1996 and thereafter, by issuing the order of termination on 12.10.2000. However, the same were struck down in the proceedings of S.C.A. No.11317/2000 & allied matters, as discussed herein above.
Thereafter, fresh showcause Notice was issued on 12.04.2004, which was followed by final showcause Notices dated 26/27.04.2004. But, both the showcause Notices were subsequently withdrawn in proceedings of S.C.A. No.5484/2004 & allied matters. Eight years thereafter, another showcause Notice dated 30.01.2012 was issued, which was followed by the order of termination dated 03.03.2012.
47.2 On mere allegation of fraud, without there being any cogent evidence available with the authority for each individual case, the authority could not have taken the punitive action, after a lapse of eight years, for an appointment which was made in the year 19901991. The authority cannot wake up from the slumber after period of long years and take action after more than two decades. Therefore, in my opinion, the action of the respondents is bad in law on the ground of inordinate delay in taking action.
48. Further, the respondents have also abused the process of Court by passing an administrative order cancelling the orders of transfers though transfers had been granted in judicial proceedings in certain cases by taking shelter of the proceedings of L.P.A. No.2051/2010 & allied matters decided on 06.05.2011. The proceedings in L.P.A. No.2051/2010 & allied matters are completely different to the one on hand and it could not have been made the basis by the respondents for taking the punitive action of dismissal from service against the petitioners.
49. In view of the above discussion, I am of the considered opinion that the impugned order dated 23.12.2011 issued by respondent no.2, the showcause Notice dated 30.01.2012 issued by respondent no.3, the orders of dismissal dated 03.03.2012 and also the order of cancellation of interdistrict transfers dated 23.12.2011 deserves to be quashed and set aside on the grounds that the same are barred by the principle of res judicata, in breach of the principles of natural justice, delay and also in breach of the provisions of the Gujarat Panchayats (Discipline & Appeal) Rules, 1997.
50. For the reasons set out in the aforesaid judgement, the petitions are allowed;
(i) The impugned order dated 23.12.2011 passed by respondent no.2, the showcause Notice dated 30.01.2012 issued by respondent no.3, the order of dismissal dated 03.03.2012 and the order cancelling the inter district transfers dated 23.12.2011 are quashed and set aside.
(ii) The respondents are directed to reinstate the petitioners on their original post and at the place where they were last serving immediately prior to the passing of the orders of dismissal within a period of FIFTEEN DAYS from today.
(iii) The period during which the petitioners had remained out of service shall be considered as continuous for all purposes and they shall be paid regular salary.
(iv) The arrears of salary shall be paid within a period of ONE MONTH from the date of their reinstatement in service.
(v) The respondents are directed to retransfer those petitioners, who have been transferred pursuant to the order dated 24.01.2012, to the places where they were originally posted prior to the orders of transfer, within a period of TWO MONTHS from the date of reinstatement.
51. With the above directions, the petitions stand disposed of. Rule is made absolute to the above extent with no order as to costs. Direct service permitted.
3.0 In view of the aforesaid decision, the petitions are allowed and following order is passed:
(i) The impugned order dated 23.12.2011 passed by respondent no.2, the showcause Notice dated 30.01.2012 issued by respondent no.3, the order of dismissal dated 03.03.2012 and the order cancelling the interdistrict transfers dated 23.12.2011 are quashed and set aside.
(ii) The respondents are directed to reinstate the petitioners on their original post and at the place where they were last serving immediately prior to the passing of the orders of dismissal within a period of FIFTEEN DAYS from today.
(iii) The period during which the petitioners had remained out of service shall be considered as continuous for all purposes and they shall be paid regular salary.
(iv) The arrears of salary shall be paid within a period of ONE MONTH from the date of their reinstatement in service.
(v) The respondents are directed to retransfer those petitioners, who have been transferred pursuant to the order dated 24.01.2012, to the places where they were originally posted prior to the orders of transfer, within a period of TWO MONTHS from the date of reinstatement.
4.0 With the above directions, the petitions stand disposed of. Rule is made absolute to the above extent with no order as to costs. Direct service permitted.
(K.S.JHAVERI, J.) niru*