SCA/13154/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13154 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== BHAILALBHAI GIRDHARBHAI BARIYA Versus MANAGING DIRECTOR- GUJARAT WATER RESOURCES DEVELOPMENT & others ====================================== Appearance : Mr. D.P. Joshi for the petitioner Ms. Asmita Patel, AGP, for the respondents ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 17/01/2008 ORAL JUDGMENT SCA/13154/2007 2/4 JUDGMENT 1 The prayer of the petitioner in the present petition under Article 226 of the Constitution of India to quash and set aside the order of suspension dated 13.8.2002 and the order of dismissal dated 20.10.2002, as confirmed by the Appellate Authority vide order dated 12.3.2007, is to be considered in the following backdrop of the facts of the petition. 2 Initially the petitioner was appointed as Rajamdar Chokidar on 1.6.1981. According to the petitioner, in the recruitment rules for the post of Chokidar, no specific educational qualification is prescribed and there was no requirement of submitting any certificate with regard to work experience or educational qualification as the case may be. The case of the petitioner is that the petitioner worked with the respondent- Corporation for more than 22 years and rendered service to the respondents to the utmost satisfaction and, when there was no requirement of submitting any certificate for educational qualification for recruitment to post of chokidar, any action taken on the basis of submission of a fake certificate of passing Std VII examination and entering into the service record in this regard has no relevance and unwarranted and it cannot be said to be suppression, which may have bearing on the performance of duty as chokidar and later on as work charge bore operator when he was subsequently promoted. Therefore, according to the learned counsel for the petitioner, the order passed by the competent authority ignoring the above facts and confirmed by the Appellate Authority is required to be quashed and set aside. 3 Pursuant to the notice issued by this Court, the respondent- Corporation filed affidavit in reply and, relying on the same, the learned SCA/13154/2007 3/4 JUDGMENT Assistant Government Pleader has contended, inter alia, that [i] the petitioner obtained employment as chokidar by producing a fake certificate of Std. VII and has committed fraud with the respondent; [ii] he was found guilty of serious misconduct; [iii] the order of dismissal is passed after following the due procedure and, therefore, when the disciplinary authority and the appellate authority upon verification of facts passed the orders, the power under Article 226 of the Constitution of India need not to be exercised. It is further submitted that the petitioner produced a fake certificate of Std. VII, namely, school leaving certificate issued by the Taluka Panchayat Sikshan Samiti, Nandod, wherein the date of birth is mentioned as 1.6.1962 and the date of entering in school is 29.7.1970 and the date of school leaving is shown as 12.8.1975 and left the primary school on 12.8.1975 within the period of five years of initial admission in the school. Thus, according to the respondents, when another certificate issued by the Zilla Panchayat Sikshan Samiti, Vadodara and the school leaving certificate produced by the petitioner, it indicates that he had joined the school on 7.7.1974 and left the school on 1.7.1975. It also mentions about passing of Std VII by the petitioner and necessary entries were made in the service record. Such conduct on the part of the petitioner, according to the respondents, irrespective of fact whether there was any requisite educational qualification or not, amounts to serious misconduct, which is proved in the departmental enquiry and which need not be disturbed by this Court. 4 Having heard the learned counsel for the parties and considering the facts and circumstances of the case and upon perusal of the orders passed by the Disciplinary Authority and the Appellate Authority, it is clearly established that the petitioner has produced fake certificate for SCA/13154/2007 4/4 JUDGMENT getting employment as chokidar and later on promotion as bore operator. Whether a particular educational qualification is the requirement of recruitment rules or not is a different question, but, when a fake certificate is produced for getting an employment and promotion as bore operator, certainly it has a bearing on grant of employment considering the said educational qualification. The Competent Authority has come to the conclusion that the petitioner has availed benefits of service on the basis of fake certificate after affording adequate opportunity of explanation and confirmed upto the appellate stage. In view of the above, since the appointment of the petitioner is an illegal appointment, no interference is called for in exercise of power under Article 226 of the Constitution of India. 5 In the case of Ashok Kumar Sonkar vs. Union of India, reported in (2007) 4 Supreme Court Cases 54, the Apex Court, while distinguishing 'irregular appointment' and 'illegal appointment', observed that if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity and sympathy, as is well known, should not be misplaced. 6 Considering the above aspects, this petition has no substance and is rejected. Notice is discharged with no order as to costs. (ANANT S. DAVE, J.) (swamy)