Director of Higher Education vs Ishwarbhai M. Vaghari (Valmik) and Others

J.C. Upadhyaya, J.—This petition filed by the petitioner - Director of Higher Education [for short ''DHE''], under Articles 226 and 227 of the Constitution of India is directed against the impugned judgment and order dated 15/7/1993 passed by the Gujarat Affiliated Colleges Services Tribunal [for short ''the Tribunal''], whereby the order cancelling the appointment of the respondent No. 1 as ''Peon'' is quashed and set aside.

The facts giving rise to this petition is that the respondent college intended to fill in the post of Peon as well as post of Sweeper and for said purpose, after obtaining N.O.C. for filling the posts, advertisement was issued. In the advertisement, two posts were advertised, one was that of a Peon and another was that of a Sweeper. The post of Peon was specified as reserved for Scheduled Tribe [ST] and post of Sweeper was kept open for unreserved category of candidates. In response to the advertisement published in the newspaper of 16/2/1992 the respondent No. 1 applied for post of Peon on 20/2/1992 and in said application, the applicant/respondent No. 1 had described himself as ''Valmik Ishvarbhai Mohanbhai''. In the application itself the respondent No. 1 had stated that he was a candidate belonging to Backward Classes. The name of respondent No. 1 was styled as ''Valmik even in the body of the application. Interview was arranged on 13/3/1992. Even in interview call letter, the respondent No. 1 was addressed as ''Valmik Ishvarbhai''. The Selection Committee was formed which included management representative, namely one Shri Prafulbhai C Shah, the Principal of the college and one Shri Adalja, who was representative of Director of Higher Education. The committee unanimously selected the respondent No. 1 in the post of Peon. The respondent No. 1 resumed duty on 27/3/1992. After the respondent No. 1 resumed his duty, ministerial staff of the college found that name of the respondent No. 1 is actually ''Ishvarbhai Vaghri''. Even in the certificate annexed by the respondent No. 1 with his application, the respondent No. 1 had been certified as person belonging to Vaghri community and he was certified to be a member belonging to Socially and Educationally Backward Class [for short ''SEBC''].

2.1. Pursuant to the above, the respondent college authority issued order dated 25/4/1992 that the appointment of the respondent No. 1 was cancelled. The respondent No. 1 challenged the said action before the Tribunal.

2.2. The Tribunal vide judgment and order dated 15/7/1993 allowed the petition preferred by the respondent No. 1 and the impugned order cancelling the appointment of the respondent No. 1 was quashed and set aside and the respondent No. 1 was declared as legally selected and appointed as Peon in the respondent college. However, the Tribunal directed that the appointment of the respondent No. 1 would take effect from 1/8/1993 and he would be allowed to join duty with effect from 1/8/1993 and would be paid regular salary as per rules with effect from that date. The Tribunal further directed that the salaries of the respondent No. 1 as Peon shall be held admissible for the purpose of grant with effect from 1/8/1993. The said order passed by the Tribunal is under challenge in this petition.

Mr. K.L. Pandya, Ld. AGP representing the petitioner - State of Gujarat, submitted that the impugned judgment and order rendered by the Tribunal is contrary to law and facts on record. It is submitted that admittedly the respondent No. 1 does not belong to ST category for which the post was reserved. Despite this, the respondent No. 1 described himself as ''Valmik'' and applied for the post. Soon after his appointment, this fact came to the notice of the college institution that as a matter of fact the respondent No. 1 belonged to SEBC category and not ST category and, therefore, the institution was justified in cancelling his appointment. It is further submitted that even before publishing the advertisement for the post, due sanction was not obtained from the Government.

3.1. Mr. Pandya, Ld. AGP assailed the impugned judgment and order rendered by the Tribunal and submitted that the Tribunal in the impugned judgment admitted the situation that the respondent No. 1 did not belong to ST category. That despite this, the Tribunal was not justified in quashing the order regarding cancellation of his appointment.

3.2. Mr. Pandya, Ld. AGP further submitted that so far as the petitioner - State of Gujarat is concerned, the question is of releasing the grant for the salary of respondent No. 1. It is submitted that as a matter of fact, when the prior approval of the Government was not obtained before appointing respondent No. 1 as Peon in the institution and when the respondent institution cancelled the appointment of the respondent No. 1 Peon, the Tribunal was not justified in directing the Government to provide grant for the pay of the Peon.

3.3. In the above view of the matter, Mr. Pandya, Ld. AGP representing the petitioner - State, requested that the petition be allowed and the impugned judgment and order rendered by the Tribunal be quashed and set aside.

Mr. AD Oza, Ld. Advocate representing respondent No. 1 fully supported the impugned judgment and order rendered by the Tribunal and submitted that the Tribunal rightly observed that there was no fraud practiced by the respondent No. 1 while applying for the post and even the respondent college institution during the course of interview found the respondent No. 1 fit for the post and he was selected. It is submitted that in the Selection Committee, representative of the college as well as representative of the Director of Higher Education remained present and thus the submission advanced on behalf of the petitioner that the college authority started recruitment process without the knowledge of the concerned authority cannot be accepted.

4.1. Mr. Oza, Ld. Advocate for the respondent No. 1 further submitted that the action on the part of the college institution to cancel the appointment of respondent No. 1 was even otherwise bad in law as the Tribunal has rightly observed in the impugned judgment and order that before issuance of the order of cancellation, the provisions contained in Section 14 of the Gujarat Affiliated Colleges Services Tribunal Act [for short ''the Act''] was required to be complied with and in the instant case, admittedly said provisions were not complied with.

4.2. In support of the above submission, Mr. Oza, Ld. Advocate respondent No. 1 relied upon a decision rendered in the case of Chhaganbhai P. Oza v. The Ahmedabad Jesuit Schools Society reported in 1978 G.L.R. 347. Reliance was also placed upon the decision rendered in the case of S.S.K. Trust v. P.N. Patel reported in 1977 G.L.R. 615. Ultimately, it is submitted that the petition may be dismissed.

None appeared for respondents Nos. 2, 3 and 4.

I have given my thoughtful consideration to the dispute raised in this petition which is preferred under Articles 226 & 227 of the Constitution. Before considering the dispute raised in this petition on merits, it would be in the interest of justice, if the ratio laid down by this Court in S.S.K. Trust v. P. N. Patel''s case [supra] is considered. Describing the powers and duties of the Tribunal, this Court categorically held in para. 14 of the said judgment that whole jurisdiction of the Tribunal is to pass the just order bearing in mind the four-fold interests involved in the dispute. It is further observed that the Tribunal is given jurisdiction to pass just order in the larger interest so that justice is done both to the management and the teacher concerned and educational interests prosper. In para. 16 of the said judgment, this Court further observed that a finding of fact recorded by the Tribunal cannot be challenged on the ground that relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain the finding. The adequacy or sufficiency of evidence led on a point and inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.

In the above backdrop, if the dispute raised in this petition is examined, it becomes crystal clear that in the instant case, it is not alleged that respondent No. 1 Peon played any fraud with the institution. The respondent No. 1 Peon did not suppress any material fact. In his application itself, though he styled himself as ''Valmik'', but the certificate annexed with his application contained that he belonged to SEBC category. It is further pertinent to note that he was interviewed by Selection Committee comprising representative of the college as well as Government representative, namely representative from the office of DHE. Even during his interview, he was found to be suitable for the post and, therefore, he was appointed for the post of Peon on 27/3/1992. Perusing the impugned judgment and order rendered by the Tribunal, it further transpires that oral evidence was also led before the Tribunal and the Tribunal evaluated and scrutinized the oral and documentary evidence led before it and came to the conclusion that if at all any mistake cropped up in the selection, the same was bonafide mistake and the mistake was there on both the sides, but was held to be bonafide. The Tribunal further held that from the very beginning, the respondent No. 1 Peon claimed himself to be SEBC and never attempted to claim himself to be ST. The Tribunal assigned cogent and convincing reasons while coming to the conclusion that the evidence adduced on record was sufficient enough to hold that by posing himself as ''Valmik'', thereby it cannot be said that he claimed the status of ST candidate.

In the impugned judgment and order, the Tribunal referred Section 14 of the Act and observed that this provision enjoins on the colleges that before ending the service, employees should be given a reasonable opportunity of being heard and the previous approval of the Vice Chancellor was required to be obtained and in the instant case, admittedly said provision was not complied with. On this point, Mr. Oza, learned advocate for respondent No. 1 relied upon a decision rendered in the case of Chhaganbhai v. Ahmedabad Jesuit Schools Society''s case [supra]. Considering the said judgment, this Court observed that Section 36 of the Gujarat Secondary Education Act [almost similar to the provisions contained in Section 14 of the Act] provided that not only for penal action resulting in dismissal or removal or reduction in rank said provision was required to be followed, but the same was required to be followed in an action which results in termination of service of a teacher otherwise than by way of disciplinary action. Thus, considering the impugned judgment and order rendered by the Tribunal, it clearly transpires that the disputed order dated 25/4/1992 suffers from infirmity namely before issuing said order, the provisions contained in Section 14 of the Act were not complied with.

Considering the submissions advanced by Mr. Pandya, Ld. AGP for respondent - State, it transpires that main grievance ventilated is regarding sanctioning grant for the pay of respondent No. 1 Peon. Mr. Pandya, Ld. AGP submitted that Section 14 of the Act was required to be followed by the college management and if there was any lapse on the part of the college management, the State Government cannot be penalized for the same. I have given my thoughtful consideration to the submissions advanced by Mr. Pandya, Ld. AGP. However, question involved in this matter is protection of right and interest of the employee. In the instant case, so far as the respondent No. 1 Peon is concerned, he is not connected with any inter-se dispute between the Government and the college management. In that view of the matter, any dispute between the Government and the college management regarding the grant would be a different cause of action and for that Government may take suitable action against the college management, but the same shall not be detrimental to the right and interest of Class-IV employee like the respondent No. 1 Peon. However, pursuant to the communication dated 27/9/1994 issued by the office of the Commissioner of Higher Education, pursuant to the interim order passed in Civil Application and in compliance with the said order, grant was sanctioned by the Government regarding the pay of the respondent No. 1 Peon and the appointment was approved for the purpose of grant. However, the same was subject to final outcome of this petition.

With the above observation, this Court is of the opinion that the petition lacks merit and deserves dismissal.

For the foregoing reasons, the petition is dismissed. Rule is discharged.