Back
2015 Supreme(Guj) 442
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Maheshkumar Prabhudas Patel – Appellants
Vs.
Commissioner of Higher Education and Ors. – Respondent
Special Civil Application Nos. 10319 of 2001 and 7655 of 2005
Decided On : 06.08.2015
For the Appellant :Dipak R. Dave, Advocate
For the Respondents: Government Pleader
The main legal point established in the judgment is the entitlement to the protection of surplus and the lack of benefit obtained from an alleged false certificate.
Headnote:
Surplus - Education Officer - Gujarat Higher Secondary School Tribunal - G.R. dated 22.09.1987, 3.3.92 - G.C.C. Examination - Surplus Scheme - Absorption - Full time Steno Instructor - Illegal Inquiry - Protection of Surplus - Tribunal's Order - Commissioner's Inquiry - Illegal Certificate - Benefit of Surplus - Arrears of Salary
Fact of the Case:
The petitioner, a Steno Instructor, was appointed on a part-time basis and later as a full-time instructor. The petitioner was entitled to the protection of surplus but was not given the same by the school, leading to a legal battle. The Commissioner of Higher Education conducted an inquiry against the petitioner, alleging the production of a false certificate. The petitioner challenged the legality of the inquiry and the subsequent order.
Finding of the Court:
The court found that the petitioner was entitled to the protection of surplus and had not obtained any benefit from the alleged false certificate. The impugned order of the Commissioner was quashed, and the petitioner was awarded 50% of the arrears of salary from April 1996 till his absorption in 2004.
Issues: The issues revolved around the legality of the Commissioner's inquiry, the entitlement to the protection of surplus, and the validity of the alleged false certificate.
Ratio Decidendi: The court relied on the orders of the Gujarat Higher Secondary School Tribunal, which declared the petitioner as surplus and entitled to the benefit of the surplus scheme. The court also considered the lack of benefit obtained from the alleged false certificate and the petitioner's reinstatement in service.
Final Decision: The impugned order was quashed, and the petitioner was awarded 50% of the arrears of salary. The Special Civil Application No. 7655 of 2005 was rejected.
J.B. Pardiwala, J.
1. Since the issues arising for my consideration in both the captioned petitions are more or less the same those were heard analogously and are being disposed of by this common judgment and order.
2. The Special Civil Application No. 7655 of 2005 has been preferred by (1) the District Education Officer, (2) Commissioner of Higher Education, Gujarat State and (3) the District Education Office, Vadodara challenging the order passed by the Gujarat Higher Secondary School Tribunal dated 4th April 2001 in application No. 243 of 1998. While issuing Rule in the said petition this Court passed the following order:-
"Heard the learned advocates.
Draft amendment is allowed. The amendment shall be carried out within fifteen days from today.
Rule. To be heard with Special Civil Application No. 10319 of 2001. Mr. Dave waives service on behalf of the respondent No. 1.
In view of passage of time and the Order dated 20th October, 2004 passed in Civil Application No. 3473 of 2004, interim relief pending this petition is refused. The petitioner No. 2 shall, within fifteen days from today, appoint the respondent No. 1 as directed by the Tribunal below. Pending this petition, such appointment shall be treated as ad hoc and appointment afresh, and shall be subject to the result of this petition. In the event the petitioner No. 2 fails to make such order within fifteen days, as aforesaid, the respondent No. 1 shall be entitled to receive pay and allowances commencing from 17th October, 2005. It is further directed that on receipt of the order, the respondent No. 1 shall immediately report for duty wherever he is posted. In the event, the respondent No. 1 fails to report for duty within five days from the date of the receipt of the order, the appointment order shall stand cancelled."
3. The Special Civil Application No. 10319 of 2001 has been filed by the respondent No. 1 of the Special Civil Application No. 7655 of 2005 referred to above calling in question the legality and validity of the order dated 14th September, 2001 passed by the Commissioner of Higher Education.
4. The facts giving rise to the two applications may be summarized as under:-
5. The petitioner was appointed as a Steno Instructor vide order dated 17th March, 1992 on the part time basis. The fixed pay scale of the petitioner was Rs. 403/-. It is his case that he was appointed by the respondent No. 2-District Education Officer after following the due process of recruitment in accordance with the law.
6. In the year 1992 on addition of one Class of standard-XII a vacancy of a full time Steno Instructor arose. In such circumstances, the petitioner was appointed as a full time Steno Instructor with effect from 23rd June, 1992 in the Jaydipsinh Baria High School. The petitioner was asked by the School authorities to pass the GCC Examination. The petitioner cleared the GCC Examination in August, 1992.
7. Having regard to the qualifications of the petitioner, the DEO, Godhara vide order dated 9th November, 1992 sanctioned the appointment of the petitioner as a full timer with effect from 23rd June, 1992.
8. The Higher Secondary stream of the Jaydipsingh Baria High School came to be closed in the year 1995-96. The State Government issued a resolution dated 21.05.1994 declaring that the employees who had been appointed prior to 16th April, 1994 would be given the protection of surplus. Thereafter, on 6th July, 1998 it was resolved by the Government that the employees who had been employed prior to 30th June 1998 would be given the protection of surplus.
9. Indisputably, the petitioner had been appointed on 23rd June, 1992 and was therefore, entitled to the protection of surplus. Since the petitioner was not given the protection of surplus by the school, he had to go before the Tribunal by way of the application No. 1 of 1997. The Gujarat Higher Secondary School services Tribunal (for short the Tribunal) allowed the application of the petitioner and directed the respondent
