District Primary Education ... vs Mehulkumar Natvarbhai Patel
2023 Latest Caselaw 5120 Guj

     C/LPA/39/2022                             ORDER DATED: 03/07/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/LETTERS PATENT APPEAL NO. 39 of 2022
          In R/SPECIAL CIVIL APPLICATION NO. 297 of 2013
                               With
      CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 39 of 2022
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                 DISTRICT PRIMARY EDUCATION OFFICER
                                Versus
                    MEHULKUMAR NATVARBHAI PATEL
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 2, 3
MR.DIPAK B PATEL(3744) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE J. C. DOSHI

                           Date : 03/07/2023

                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. Heard learned advocate Mr. HS Munshaw for the appellant, learned advocate Mr. Dipak Patel for the respondent No.1 and learned AGP Ms. Shruti Dhruve for respondent Nos.2 and 3.

2. This intra Court appeal is filed at the instance of the appellant - District Primary Education Officer questioning the legality and propriety of oral order dated 22.10.2019, whereby, the learned Single Judge allowed the writ petition in terms of judgment dated 17.6.2019 passed by the Division Bench in Letters Patent Appeal No.372 of 2019 and allied matters as well as Letters Patent Appeal No.310 of 2019 and allied matters and directed to reinstate the original petitioner and confer her/his all benefits which are paid to the employee of the said Letters Patent Appeal. Learned Single Judge has also passed an order directing the present appellant to pass necessary order for giving effect

C/LPA/39/2022 ORDER DATED: 03/07/2023

within three months from the date of the order.

3. The facts in brief would be that in response to the application for the post of Vidhya Sahayak, after due process of the selection and due verification of the certificate as well as testimonials, the District Primary Education Officer, Vadodara issued appointment letter dated 6.12.2008 appointing the petitioner as Vidhya Sahayak. Two years later, by order dated 29.4.2011, the District Primary Education Officer, Vadodara terminated the services of the petitioner as Vidhya Sahayak. Said order has been called to challenge by way of filing Special Civil Application No.6927 of 2011 under Article 226 of the Constitution of India. Several other Vidhya Sahayaks have also filed writ petition. Vide common oral order dated 13.7.2011, this Court has disposed of the group of writ petitions by directing the concerned authority to constitute Committee of three officers viz. One officer from the office of the Director of Primary Education, one officer from the Education Department not below the rank of the Under Secretary and District Primary Education Officer to examine the case of the concerned, who are terminated from the services without being influenced by the earlier termination order.

3.1 At the relevant time, it was also directed that the petitioner should be given show cause notice along with other documents that are going to be relied upon by the Committee and also should be afforded personal hearing and the final decision taken by the Committee should be communicated to the petitioner individually by Registered Post. The Committee considering the said order of this Court, examined the case of the petitioner and

C/LPA/39/2022 ORDER DATED: 03/07/2023

again removed her from the service of Vidhya Sahayak without affecting her eligibility for future employment on the ground that sports certificate produced by the petitioner is found to be ingenuine or fake one. Said order of the appellant herein has been brought to challenge by way of filing captioned Special Civil Application under Article 226 of the Constitution of India. Learned Single Judge having considered the decision rendered in Letters Patent Appeal No.372 of 2019 as well as in Letters Patent Appeal No.310 of 2019 passed by this Court, which squarely covered the dispute, was pleased to hold the decision in favour of the petitioner as stated herein above. The findings arrived at by the learned Single Judge can be noticed by reading para 8 to 11 of the impugned order, which are as follows:-

"8. The Division Bench has specifically observed that from the language of the show cause notice issued and the order of dismissal, it is evident that the burden was cast upon the candidate to prove the genuineness of the certificate. The authority itself has presumed that the certificates are bogus. The entire exercise has been carried out with a prejudged mind only under the guise of complying with the order of PIL.

9. In the present case, there are serious allegations doubting the veracity of the Sports Certificate produced by the present petitioner. The show cause notice proceeds on the basis that such Certificate if ultimately is found fake, serious consequences shall be followed. It is not in dispute that after issuing the show cause notice, the respondents while issuing the impugned order of termination on 01.11.2011, respondent No.3 has placed reliance on the letter of the Gujarat State Kabaddi Association, which had issued the Sports Certificate dated 29.09.2011, wherein the Association has stated that the petitioner had not taken part in Kabaddi tournament. It is also not in dispute that no one from the Gujarat State Kabaddi Association has been examined and the letter dated 29.09.2011 has been considered after the petitioner had replied to the show cause notice issued by the respondent No.3.

C/LPA/39/2022 ORDER DATED: 03/07/2023

10. In the considered opinion of this Court, the procedure adopted by respondent No.3 is in violation of principle of natural justice as well as procedure envisaged under the provisions of Article 311(2) of the Constitution of India.

11. In wake of the fact that no one from the Gujarat State Kabaddi Association, which has issued the certificate, has been examined for the inquiry, the entire proceedings, lapse and the impugned order of termination, which is based on such findings and on basis of the letter dated 29.09.2011 of the Gujarat State Kabaddi Association which is admittedly not supplied to the petitioner, the impugned order of termination is required to be quashed and set aside."

3.2 Being aggrieved, the appellant - District Primary Education Officer is in appeal.

4. Learned advocate Mr. HS Munshaw appearing for the appellant would argue that the petitioner has filed fake sports certificate, which is the base of termination of the petitioner from the post of Vidhya Sahayak. It has been supported by concerned Sports Association that they have not issued such kind of sports certificate or the petitioner has not taken part in the sports tournament. Said letter was forming part of the inquiry held by the Committee and in that facts and circumstances, the learned Single Judge should not have doubted the inquiry undertaken by the Committee. He would further submit that since the petitioner involved in mal-practice to get the job, which by itself is a misconduct per se sufficient to remove from the service and thus, rightly had been removed by the appellant, but by interfering with such order, the learned Single Judge has committed serious error. Upon these submissions, hesubmits to upturn the impugned order by allowing this Letters Patent Appeal.

       C/LPA/39/2022                                  ORDER DATED: 03/07/2023




5.    Strenuously,         opposing   the       argument    of     the      learned

advocate Mr. Munshaw, learned advocate Mr. Dipak Patel for the respondent No.1 would argue that not only in Letters Patent Appeal No.372 of 2019, the Division Bench of this Court has examined very issue in a decision of Letters Patent Appeal No.940 of 2021 as well as in Letters Patent Appeal No.310 of 2019 with allied matters. He would further submit that out of these array of decision, the decision delivered in Letters Patent Appeal No.310 of 2019 and allied matters was tested before the Hon'ble Apex Court in SLP (Civil) Diary No.27575/2020, whereby the Hon'ble Apex Court did not interfere with the impugned order and as such, has confirmed the order passed by the Division Bench of this Court in the aforesaid Letters Patent Appeal.

5.1 Learned advocate Mr. Dipak Patel would further submit that the Committee which has taken the decision to terminate the petitioner from the post of Vidhya Sahayak was bias from the beginning. While passing the order of termination, the Committee has placed reliance upon the letter of the Sports Association inter alia stating that the petitioner has not taken part in the sports tournament. The learned Single Judge has taken note that no one has been examined from the said sports association as to establish the letter which said to have been written by the said sports association. The learned Single Judge therefore, found that this is a blatant violation of principles of natural justice and as such, the learned Single Judge passed the order of reinstatement. Therefore, it is submitted that no illegality is cropped up in the impugned judgment and as such, submitted to dismiss the Letters Patent Appeal.

C/LPA/39/2022 ORDER DATED: 03/07/2023

6. Having heard learned advocates for both the sides, what emerges that the learned Single Judge while passing the impugned order, has taken help of the decision rendered in Letters Patent Appeal No.310 of 2019 and other allied matters, in which controversy in vogue was under adjudication.

6.1 Para 6 of the impugned order reads following:-

"6. The Division Bench in the judgment dated 17.06.2019 passed in Letters Patent Appeal No.310 of 2019 and its allied matters, while deciding the controversy of the dismissal orders based on the bogus Sports Certificate, while confirming the observations made by the Coordinate Bench in similar set of facts, has observed thus:

"18 When the dismissal order dated 23.09.2014 in context of such appointees is read, it makes out a chronology. Reference in the dismissal order is made to notices issued to such candidates by the Committee on 30.11.2012 and 14.12.2012, show cause notice dated 01.07.2013, the representations made by such candidates in response to such notices, order dated 20.8.2014 in PIL 39 of 2012 and also a reference to a personal hearing given to such candidates.

19 The order of dismissal is in standard format which when translated, states that the concerned candidate was placed at a particular serial number in the merit list. An inquiry was conducted by the State Government based on reports that such appointments were obtained on the basis of a bogus Sports Certificate. That the candidates were called for hearing vide notices dated 30.11.2012 and 14.12.2012 and show cause notices were issued. The order further recited that no direct or indirect evidence had been produced by the appointees to show that such candidates had participated in the Kabaddi Competition.

The certificates had therefore been found to be bogus and therefore after giving an opportunity of hearing in consonance with the principles of natural justice, since it is found that certificates were bogus the appointments were cancelled and the appointees were dismissed from

C/LPA/39/2022 ORDER DATED: 03/07/2023

service.

20 In the context of these facts, let us consider the finding of the learned Single Judge on the basis of the submissions made by the respective advocates.

21 From the paper book of the Letters Patent Appeals wherein the 32 respondents are concerned, the following documents are on record: (1) the Certificate of the Gujarat State Kabaddi Association which states that it is affiliated to the Amateur Kabaddi Federation of India and Gujarat State Olympic Association. (2) Relevant participation certificate of the candidate having participated in the Kabaddi Championship, (3) Relevant annexure in a format certified by the office bearer of the Kabaddi Association, confirming the candidates participation. (4) Invitation letter of the Amateur Kabaddi Federation of India and proof of travel. (5) Also is on record, in some cases the signatory of the Gujarat State Kabaddi Association, being an office bearer of the Amateur Kabaddi Federation of India and a letter of its recognition by the Ministry of Youth Affairs. (6) Applications made and proof of receipt of the office of the District Primary Education Office of having received such original certificates. (7) Assertions in all cases that the Certificates were verified by the officers in the backdrop of specific instruction of May 2008 made of verification of Sports Association done prior to the appointments.

22 Based on these undisputed facts, representations were made pursuant to the show cause notices. It was the case of the candidates that such sports certificates were verified by the officials, annexed to the applications and receipts were issued in proof of such deposit. Cancellation of appointments was done by the authority on the basis that the Certificates were bogus. It was the case of the petitioners that there was no material available to the authorities to come to a conclusion that the certificates were bogus. The orders of dismissal were also challenged on the ground that they violated principles of natural justice as no departmental proceedings were held, no witnesses were examined. Based merely on a report of an Inquiry Committee formed pursuant to the order in the PIL, orders were passed without supplying copy of the report. The order therefore was violative of principles of natural justice.

C/LPA/39/2022 ORDER DATED: 03/07/2023

30 The learned Single Judge has categorically in respect of the 32 respondents, held that even if the irregularity is accepted, the petitioners cannot be blamed, particularly when, after the appointment or during the process, there were stages of scrutiny and verification which have been done and originals are with the authority. From what is stated in (I) to (VIII) herein above, it is therefore evident that it cannot be said that the candidates have secured their appointment through fraud. Documents which are part of their record reveal that certificates were issued by the Gujarat State Kabaddi Association. The office bearer of the association is one of such office holders of the Amateur Kabaddi Federation of India. The Ministry of Youth Affairs has recognized it. The DPEO officials have, in the course of exercise of recruitment verified certificates, issued receipts pursuant to the preliminary scrutiny of the association carried out by them. It certainly cannot be said to be a case where the candidate knowingly produced a fraudulent / forged document to secure an appointment. From the language of the show cause notices issued and the order of dismissal, it is evident that the burden was cast upon the candidate to prove the genuineness of the certificate. The authority itself has presumed that the certificates are bogus. The entire exercise has been carried with the order of PIL. Reading of the judgment dated 20.08.2014, particularly the quoted portions reproduced hereinabove specifically indicate that the candidates cannot be faulted or be said to have committed a fraud. Even the Inquiry Committee's Report placed on record for the first time in 2018 reveals complete absence of how the conclusion that the Certificates are bogus, has been arrived at."

7. The learned Single Judge having referred the above dictum comes to the conclusion that though burden was cast upon the candidate to prove the genuineness of the certificate, but the authority without awaiting of the proof, itself has presumed that the certificates are fake or bogus. This exercise has been carried out with pre-judge mind. The learned Single Judge hence, did not approve finding, more particularly, in view of judgment of Letters Patent Appeal No.310 of 2019 and allied matters. Apt to

C/LPA/39/2022 ORDER DATED: 03/07/2023

note that the decision rendered in Letters Patent Appeal No.310 of 2019 and allied matters has been carried to challenge before the Hon'ble Apex Court by filing SLP (Civil) Diary No.27575/2020. The Hon'ble Apex Court passed the following order on 13.12.2021:-

"Delay condoned.

We do not find any good ground to interfere with the impugned judgment and order passed by the High Court.

The Special Leave Petition are dismissed.

Pending application(s), if any shall stand disposed of."

8. Since the findings arrived at by the Division Bench of this Court and approved by the Hon'ble Apex Court squarely covers the dispute between the parties, there is no other dimension left in the matter, which can be pressed into for consideration. Therefore, impugned order cannot be said to be improper. On the contrary, the impugned order is found to be just, proper and meritorious. Hence, no interference is warranted.

9. In wake of above findings, present Letters Patent Appeal stands dismissed. Connected CA does not survive and stands disposed of accordingly.

(N.V.ANJARIA, J)

(J. C. DOSHI,J) SHEKHAR P. BARVE