Ashwinbhai Bahecharbhai Patel vs State Of Gujarat
2022 Latest Caselaw 1113 Guj

     C/LPA/246/2020                                      ORDER DATED: 02/02/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 246 of 2020
           In R/SPECIAL CIVIL APPLICATION NO. 4315 of 2016
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
             In R/LETTERS PATENT APPEAL NO. 246 of 2020
==========================================================
                       ASHWINBHAI BAHECHARBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MRS FALGUNI D PATEL(2053) for the Appellant(s) No. 1
MS DHWANI TRIPATHI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent - State Government authorities
==========================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                         Date : 02/02/2022
                          ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the order dated 14.2.2019 passed by the learned Single Judge in Special Civil Application no. 4315 of 2016, the appellant-original petitioner has preferred this intra-Court appeal under Clause 15 of the Letters Patent.

2. Following facts emerge from the record of the appeal:-

2.1 It is the case of the appellant that he passed B.Sc. from North Gujarat University in the year 1973 and B.Ed. from Gujarat University in the year 1995 and M.Ed. from Bundelkhand

C/LPA/246/2020 ORDER DATED: 02/02/2022

University, Jhansi, U.P. in the year 1997. It is the case of the appellant that after obtaining no objection certificate on 27.11.2001 for filling up a substantive vacancy of a teacher for Maths/Science subject, the respondent-school issued advertisement dated 11.8.2002 inviting applications from B.Sc. B.Ed. candidates. It is a matter of record that the appellant applied in response to the said advertisement. It is the case of the appellant that at that time, the appellant was not aware that his certificates and mark-sheets of M.Ed. qualification issued by Bundelkhand University were fake and not genuine.

2.2 It is the case of the appellant that the Committee was constituted as provided under Section 35 of the Gujarat Secondary Education Act, 1972 and the Commissioner was asked to give hearing to the parties and pass a reasoned order and the same culminated into a reasoned order dated 9.7.2010. It is the case of the appellant that instead of Commissioner, Joint Director of Education (Secondary Section) passed an order dated 10.11.2010 again holding that the appellant's appointment is not approved and on the ground that M.Ed. degree was fake. The appellant filed a representation on 20.11.2010, which was

C/LPA/246/2020 ORDER DATED: 02/02/2022

rejected vide order dated 11.9.2012 the appellant again filed a representation on 18.10.2012 which came to be rejected on 6.1.2014. Being aggrieved by the same, the appellant approached the Tribunal by way of filing an application being Application no.16/2014 which was numbered as Appeal no.542/2014. The said appeal came to be rejected vide order dated 7.1.2016. It appears that the appellant on 29.2.2016 filed a Writ Petition, inter-alia, challenging all orders from 2009 till 2016 and prayed as under:-

"(a) to admit this petition and to issue notice for final disposal on returnable date;

(b) to quash and set aside the impugned orders at Annexure-H colly., namely, order dated 29-8-2009 passed by the Commissioner of Schools and the consequential order dated 9-9-

2009 passed by the DEO and the consequential order of the termination dated 14-9-2009 passed by the School;

(c) to quash and set aside the order of the Commissioner of Schools dated 10-11-2010 at Annexure-K declining to approve the petitioner's appointment;

(d) to quash and set aside the orders of the State Government dated 11-9- 2012 at Annexure-M and dated 6-1-2014 at Annexure-O;

         (e) to         quash       and        set       aside          the





      C/LPA/246/2020                              ORDER DATED: 02/02/2022

judgment and order dated 7-1-2016 passed by the Gujarat Educational Institutions Services Tribunal, Ahmedabad in Appeal No.542/2014 (Old Application No.16/2014) (Secondary Section) as per Annexure-P;

(f) to direct the reinstatement of the petitioner in service with continuity and all other consequential benefits;

(g) to direct the respondent State Authorities to forthwith pay the unpaid salaries of the petitioner for the period from September 2006 to the date of termination order dated 14-9-

2009 during which period the petitioner has regularly discharged his duties as Teacher / Shikshan Sahayak in the respondent School after his selection and appointment was duly approved by the DEO by order dated 18-9-2002 as per Annexure-E;"

2.3 The learned Single Judge, after considering the submissions made, was pleased to dismiss the petition, against which, the present appeal is filed.

3. Heard Mrs. Falguni Patel, learned advocate for the appellant and Ms. Dhwani Tripathi, learned Assistant Government Pleader for the respondent-State of Gujarat on advance copy.

4. Mrs. Falguni Patel, learned advocate for the appellant has contended that the appellant was

C/LPA/246/2020 ORDER DATED: 02/02/2022

appointed after due process of law and the appellant did satisfy and possess the minimum basic required qualification i.e. B.Sc. B.Ed. Mrs. Patel contended that there was no necessity of any degree of M.Ed. and hence, according to Mrs. Patel, the same should be ignored and on the basis of the appellant possesses the degree of B.Sc. B.Ed., he should be taken back in service. Mrs. Patel also contended that the appellant was not aware about the fact that the degree of M.Ed. given by Bundelkhand University was a fake. It was also contended that the school authorities have no objection in taking back the appellant and that no complaints have been received by the management either from the school or from the students. It was also contended that the appellant stood first and therefore, the prayers prayed for by the appellant deserves to be considered and the appellant deserves to be taken back in service. Mrs. Patel further contended that the appellant is aged about 42 years old and it would be very difficult for him to survive without proper job. It was also contended that though he has rendered service from 10.8.2006 to 14.9.2009, no amount is paid by the respondents. On the aforesaid grounds, it was contended by Mrs. Patel, learned advocate for the appellant that the appeal requires consideration.

C/LPA/246/2020 ORDER DATED: 02/02/2022

5. Per contra, Ms. Dhwani Tripathi, learned Assistant Government Pleader for the State Government authorities has supported the impugned order and has submitted that no interference is called for and the appeal being meritless deserves to be dismissed.

6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. It is an admitted position that even according to the appellant, he got degree of M.Ed. in the year 1997. The advertisement in question was given in the year 2002. Therefore, for a period of 5 years, the appellant remained with the label of having masters degree in education from Bundelkhand University and the same continued till it was found that it is fake and fabricated. Record indicates that Bundelkhand University was also made a party to the Writ Petition and as observed by the learned Single Judge, the University filed an affidavit, wherein it is, inter-alia, stated as under:-

"3. At the outset I say and submit that serial numbers (seat number) of

C/LPA/246/2020 ORDER DATED: 02/02/2022

the regular candidates who had appeared in the M.Ed. examination of the year 1997 starts from 32301 to 32327, whereas the roll numbers from 32451 to 32461 was allotted to the former students. I say that the roll number 2693 which is cited by the petitioner has not been allotted by the University. I further say and submit that the mark-sheet (Annex-31) which is produced by the petitioner on record of this petition has not been issued by the Bundelkhand University and it appears to be fraudulent.

4. I further say and submit that the letter dated 17.06.2008 bearing outward no. BU/Confi.Rec./39163 (Annes-54) and letter dated 13.08.2009 bearing outward number BU/ Confi.Rec/302 (Annex-84) has not been issued by the University. A copy of the outward register entries with the relevant dates are annexed herewith and marked as Annexure R/1 collectively. And the Annexure no. 82 & 83 documents are not received by Bundelkhand University and the document Annex 85 is not issued by Bundelkhand University and the xerox of the dispatch register is attached."

8. Considering the aforesaid position, it is not possible to believe that the appellant was unaware about it. The University has, on the contrary, stated on oath which is not controverted by the appellant that no such roll number was even allotted. The appellant has relied upon Roll no.2693 which, according

C/LPA/246/2020 ORDER DATED: 02/02/2022

to Bundelkhand University, is not allotted. On inquiry made by the Court, Mrs. Patel, learned advocate for the appellant did mention that the appellant had undertaken a correspondence course. However, that would not absolve the appellant from the fact that it is a fake and fabricated degree. The learned Single Judge, having examined these very contentions, has observed thus:-

"6. Having heard learned advocates appearing for the parties and having gone through the material on record, it, prima facie, curled out that the respondent authority as well as tribunal has specifically ensured itself that the certificate which has been pressed into service by the petitioner at the time of securing employment is found to be fake and while coming to this conclusion has not only compared two certificates which are issued by Bundelkhand University. As stated above, it has also come to the conclusion after extending required opportunity to the petitioner concerned and, therefore, when fraud is practiced of securing employment by producing material which is otherwise not lawful. The Court would not like tobe a party to the same by extending any equitable jurisdiction in favour of the petitioner. The fact which is clearly emerged from the record is that it is not in dispute that petitioner has never submitted such degree of M.Ed.

in the process of selection. On the contrary, it is assertion of the

C/LPA/246/2020 ORDER DATED: 02/02/2022

petitioner on oath that he has produced the marksheet of H.Sc., B.Sc., M.A.M.Ed. As well as school leaving certificate as has been reflecting in para:2.1 of the petition averments and further it is not disputed that such certificate was scanned by the authority as well as tribunal. Apparent look on this certificate at page:54 and 84 are clearly in contrast and such seriously disputed question of facts the Court would not like to examine in exercise of extra ordinary jurisdiction. As a result of this, the petition is not possible to be accepted. Accordingly, in view of decision which has been taken by the Apex Court reported in (2016) 10 SCC 767 and (2018) 6 SCC 202, the petition is not possible to be accepted.

7.1 The situation which has been emerged is that even if the Management has no objection to represent the petitioner in the certificates, even if the petitioner is requesting the Court to ignore the degree of M.Ed. As being found to be fake, the Court would not like to exercise the discretion. In the alternative submission made by the learned advocate for the petitioner in view of the fact that on account of such fraudulent production of M.Ed. degree the petitioner has deprived one eligible candidate from getting an employment and knowing fully well that degree of M.Ed is not a valid degree has persuaded the authority to employ, is irrespective of passage of time while in service on the basis of fake document itself,

C/LPA/246/2020 ORDER DATED: 02/02/2022

this Court is not inclined to accept such alternative submissions and would not like to encourage such attempt made by the petitioner.

7.2 In the aforesaid context, when it has been observed from the record that petitioner is beneficiary of such kind of fake certificate and has sufficiently earned the benefit of recruitment though was not entitled the Court would not like to extend any equity in favour of petitioner and as such whatever order which has been passed by the tribunal which is under challenged is just and proper since Tribuinal has exercise its discretion after applying mind and has acted well within the scope of its authority. The finding which has been arrived at is not possible to be construed in any manner as perverse or suffers from material irregularity in any case tribunal once having granted any opportunity by remanding the matter extending the opportunity to the petitioner to represent and then when even thereafter also the position has not altered, the order which has been passed by the tribunal cannot be said to be erroneous in any form. May be that tribunal might not have reiterated or repeated at length the details but the said order has been passed after assigning cogent reasons which are clearly reflecting that the said conclusion is arrived at after extending appropriate opportunity to the parties concerned. In that view of the matter, no case is made out by the petitioner which calls for any interference and this being an extraneous jurisdiction the orders under challenge are not

C/LPA/246/2020 ORDER DATED: 02/02/2022

possible to be disturbed in any manner. In view of this, petition being devoid of merits deserves to be dismissed with no order as to costs."

9. Only because the appellant has been appointed after due process, the appellant cannot now be permitted to select that his degree only of graduation i.e. B.Ed. may be considered because the same corresponds with the requisite qualification for the post. The question is not whether any complaint is received from the school or students. The question which arises is that having relied upon a fake and fabricated degree which even is denied by the University cannot be permitted. It is not on record that the University itself is fake but on the contrary as observed hereinabove, the University has declared before this Court that no such roll number or enrollment number has been allotted or granted to the appellant.

10. Agreeing with the observations made by the learned Single Judge, no different view deserves to be taken in this appeal. Excellence in interview would not be a sole ground of accepting a fake degree and the innocence which is now pleaded by the appellant is nothing but an afterthought. As far as unpaid salary is concerned, it is for

C/LPA/246/2020 ORDER DATED: 02/02/2022

the appellant to approach the concerned school for the same. In totality of facts, all the grounds raised by Mrs. Patel, learned advocate for the appellant deserves to be negatived.

11. The appeal being misconceived deserves to be dismissed and is hereby dismissed. However, there shall be no order as to costs. As the appeal is dismissed, connected Civil Application also stands dismissed.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Maulik