1. The petitioner herein has prayed for quashing and setting aside the order dated 20.09.2011 passed by the Gujarat Higher Secondary Schools Services Tribunal at Ahmedabad in Applications No. 8, 53 & 58 of 2010 and also in Misc. Application No. 8 of 2010. The petitioner has also prayed for directing the respondents to declare the petitioner as surplus and thereby accommodate him in any other school and also to release the unpaid salary of the petitioner from December 2005 onwards.
2. It is the case of the petitioner that he was appointed as a teacher on 13.03.1989 which was approved by the then DEO. However, in the year 1998-1999 the petitioner was declared surplus and was accommodated in respondent no. 1 school in Secondary section. Thereafter on 09.01.2006 a show cause notice was issued to the petitioner alleging that the petitioner had produced forged M.Com marksheet. Therefore the salary of the petitioner was stopped from December 2005. A departmental inquiry was held pursuant to the reply filed.
2.1 Thereafter, as some of the classes of the respondent school were closed down, all the employees except the petitioner were declared surplus. The petitioner, therefore, filed Application No. 17 of 2007 wherein it was observed that till the management passes any termination order as per Section 14(1) of the Act, the management will start paying salary to the petitioner from its own funds. Thereafter on 02.12.2009, punishment of stoppage of one increment was imposed upon the petitioner. The petitioner thereafter filed Application No. 8 of 2010 before the Tribunal to quash and set aside the order of punishment of stoppage of one increment. The Tribunal passed an interim order on 11.03.2010 and directed the Commissioner of Schools to decide the proposal of the school within 45 days pursuant to which an order dated 28.05.2010 was passed by the Commissioner of Schools rejecting the proposal.
2.2 The petitioner thereafter challenged the order of the Commissioner of Schools and the order of the District Education Officer dated 05.06.2010 and 05.12.2006 by way of filing Applications no. 53 and 58 of 2010. Thereafter a committee was constituted for inquiring into the allegations levelled against the petitioner with regard to production of forged mark-sheet which finally exonerated the petitioner.
2.3 The applications being application no. 8, 53, 58 and Misc. Application No. 8 of 2010 was heard together and a common order was passed on 20.09.2011 whereby the applications no. 8, 53 of 2010 and Misc. application no. 8 of 2010 were rejected. However, application no. 58 of 2010 was partly allowed and the suspension order of the school was quashed and set aside. It was also directed therein that it is the duty of the management to pay salary to the petitioner whether grant is available or not. Being aggrieved by the said order, the present petition is filed.
3. Mr.
R.R. Vakil, learned advocate appearing for the petitioner submitted that the learned Tribunal has failed to consider the report dated 10.09.2006 as report of the inquiry committee. He submitted that infact it was a preliminary inquiry report and the said committee had directed the school to proceed as per section 36(1) of the Act.
3.1 Mr.
Vakil submitted that the Tribunal has failed to appreciate the fact that after order passed by the Commissioner of Schools dated 28.05.2010, the school held a departmental inquiry wherein the petitioner was exonerated. He also submitted that the Tribunal ought to have considered that the petitioner was having qualification of B.Com with 56% marks which is as per the advertisement issued by the respondent school.
4. Mr.
Pranav Dave, learned AGP appearing for the respondent State submitted that the petitioner is not possessing valid mark-sheet and instead he was appointed on a document which was forged by him. He submitted that the petitioner is not at all entitled for the service and he could not be treated as in service from 1989 to 2005.
5. Having heard learned advocates for the parties and having perused the papers on record, this Court is of the view that considering the communication dated 30.12.2005 addressed by the Deputy Registrar (Examinations), it is cleared that the petitioner has not cleared M.Com examination. However, the petitioner was appointed as an Assistant Teacher vide order dated 10.03.1989 on the basis of M.Com degree and the same was also accepted by the petitioner on 11.03.1989. The petitioner vide letter dated 27.09.2005 stated that all the documents including the M.Com marksheet were destroyed in the flood which occurred in the year 1994.
6. This Court vide order dated 28.01.2009 passed in Special Civil Application No. 637 of 2009 in an identical situation has observed as under:
"3. Heard learned counsel for the parties. The main grievance of the petitioner is that without there being any misconduct on his part, the respondent has terminated his services. On perusal of the record, it appears that the petitioner at the time of his appointment has produced the school leaving certificate of the school which was not in existence at that time and that he has produced bogus school leaving certificate.
3.1. Even otherwise, in the case of R. Vishwanatha Pillai v. State of Kerala reported in (2004)2 S.C.C. pg.105, the Hon'ble Court has held that where an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
4. Thus, as the petitioner has produced bogus school leaving certificate, his services were terminated by the respondents. Looking to the facts of the case, I am of the opinion that the respondent-authority was completely justified in terminating the services of petitioner. Hence, I do not find any reason to interfere in this petition in exercise of powers under Article 226 of the Constitution of India."
6.1 The above order was challenged before the Apex Court and the Apex Court by way of Letters Patent Appeal confirmed the order of this Court. In the present case also, the petitioner has produced forged documents at the time of appointment and therefore this Court does not find any infirmity in the impugned orders. The appointment which has been acquired by way of forged documents cannot be allowed to be continued any further.
7. In the premises aforesaid, petition is dismissed.
(K.S.
JHAVERI, J.) Divya// Top