THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.4357 of 2001 (Dated: 01-07-2011) Between: Smt. P.Yashodhara W/o PYLN Chary …Petitioner A n d The Secretary to Government, Educational Department And three others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.4357 of 2001 ORDER: The writ petitioner-Smt. P.Yashodhara joined as a Teacher in Tagore’s Home New Era High School, Secunderabad on 17.6.1985 on ad hoc basis with consolidated pay of Rs.300/-per month to teach Telugu subject for lower classes. As she was appointed on ad hoc basis, the management used to terminate her services at the end of academic year and again re-appoint her at the beginning of the academic year. 2. The Government issued G.O.Ms.No.326, dt.17.10.1989 admitting 18 posts including Telugu Pandit Gr.II to Grant-in-aid. The petitioner submitted representation for absorption in grant-in-aid post of Telugu Pandit Gr.II. She filed W.P.No.8347 of 1993 seeking a direction to the Director of School Education, Andhra Pradesh, Hyderabad, Regional Joint Director, School Education, District Educational Officer, Hyderabad District, Hyderabad, and the Correspondent, Tagore’s Home New Era High School, Secunderabad to absorb her in the post of Telugu Pandit Gr.II and also payment of salary as per G.O.Ms.No.326 dated 17.10.1989. Pending the writ petition, the District Educational Officer, Hyderabad District, Hyderabad issued proceedings Rc.No.38/458/D2/93, dated 8.7.1993 absorbing the petitioner into aided post of Telugu Pandit Gr.II sanctioned for Tagore’s Home New Era High School, Secunderabad in G.O.Ms.No.326, dated 17.10.1989. The text of the proceedings issued by the District Educational Officer reads as hereunder:- “ As per instructions of the Director of School Education, A.P., Hyderabad under reference cited, the District Educational Officer, Hyderabad District is pleased to absorb Smt. P.Yashodhara in Grant in aid post of Telugu Pandit Gr.II sanctioned for the school i.e., Tagore Home New Era High School, Sec’ bad, in G.O.Ms.No.326 Edn., dt.17.10.1989 as the incumbent has been in continuation service from 17.6.1985 till the date of inspection i.e., 18.4.1989 and by virtue of her qualification and age with effect from 1.11.1989. Action may be taken accordingly”. 3. While the writ petition (W.P.No.8347 of 1993) was pending, one Smt. S.Hanumayamma filed implead petition being W.P.M.P.No.958 of 1995 seeking her impleadment as one of the respondents in W.P.No.8347 of 1993. The said W.P.M.P.No.958 of 1995 came to be ordered on 27.2.1996. The Writ Petition came to be disposed on 16.4.1996. The order passed in W.P.No.8347 of 1993 reads as hereunder:- “ This writ petition is filed by Smt. P. Yasodhara who was working as Telugu Pandit Grade-II in the 4th respondent school. By this writ petition, she sought a direction to the respondents to absorb her in the post of Telugu Pandit Grade-II and also to grant-in aid as directed in G.O.Ms.No.326, dt.17.10.1989. Since her name was not included in the proposals sent to admit the teachers to grant-in-aid posts where sanctioned under G.O.Ms.No.326, dt.187.10.1989, the petitioner filed the present writ petition seeking relief referred to above. Even before filing of the writ petition, the petitioner made representations to the District Educational Officer and various authorities requesting them to direct the respondent school pursuant to which proceedings dt.8.7.1993 was passed. On the basis of the said representations the respondents called for the proposals from the school authorities. The authorities have sent proposals pursuant to which the respondents have admitted the petitioner to Telugu Pandit Grade-II grant- in-aid post. Therefore, no orders are necessary in this writ petition and the writ petition is accordingly disposed of. No costs. However, the respondents are directed to implement the order dt.8.7.1993 within six weeks from today”. 4. Dissatisfied with the aforesaid order, Smt. Hanumayamma filed Writ Appeal No. 1224 of 1996. The said writ appeal came to be dismissed with certain clarifications on 07.10.1996. The order passed in Writ Appeal No.1224 of 1996 reads as hereunder:- “There does not appear to be anything in the impugned order which the appellant herein can find to be offending any of his legal rights. It appears, however, a genuine apprehension that in case there is enquiry, the appellant has asserted, such enquiry is sought to be held into the genuineness of the certificates etc. of the qualifications the petitioner-respondent has claimed, the same may be effected by the direction that the respondents are directed to implement the order dated 8- 7-1993 of the District Educational Officer. We are of the opinion that any enquiry as to the genuineness of the certificates etc., of the petitioner-respondent shall not be precluded by the above observations in the writ petition.” 5. Smt. Hanumayamma filed Writ Petition No.15046 of 1993 claiming her absorption in to grant-in-aid post of Telugu Pandit Gr.II. According to her, Smt. P.Yashodhara-writ petitioner herein produced fake certificates at the time of her joining in service in Tagore Home New Era High School in un-aided post. She secured interim suspension of the proceedings issued by the District Educational Officer on 8.7.1993 with regard to absorption of Smt. P.Yashodhara (the writ petitioner herein) in Telugu Pandit Gr.II grant-in-aid post. The writ petition filed by Smt. Hanumayamma came to be dismissed on 06.4.2006 on the ground that she was not qualified to be appointed as Telugu Pandit Gr.II as on 17.10.1979. She challenged the said order by filing Writ Appeal No.1225 of 1996. The writ appeal came to be dismissed on 17.10.1996. The order passed in W.A.No.1225 of 1996 reads as hereunder:- “Learned Single Judge has rightly held that when on the date the posts for aid were in the institution concerned person who possessed the qualification could not be thrown out in favour of the petitioner-appellant, who admittedly on that particular date, was not possessing the required qualification. The above, shall not mean, in case the petitioner appellant is not qualified for any aided post and any aided post is available to seek absorption against the same. There is no merit in the appeal. The appeal is dismissed”. 6. The District Educational Officer, Secunderabad conducted a detailed enquiry regarding the genuineness of the certificates produced by the petitioner. The enquiry of the District Educational Officer revealed that the T.C produced by the petitioner at the time of her joining in Tagore Home New Era High School as Telugu Pandit Gr.II in un-aided post on consolidated pay was not genuine. Even the date of birth mentioned in the TC differs from the date of birth mentioned in the TC of training course. As per the entries in the TC issued by Venkatrao Memorial High School, Lal Darwaja, Secunderabad, her date of birth is 15.8.1953 and whereas as per the entries in the Training Course is 15.8.1959. The writ petitioner submits that her date of birth has been wrongly mentioned in the training course TC as 15.8.1959 and her correct date of birth is 15.8.1953 and she submitted representation to the authorities for correction of her date of birth. 7. The District Educational Officer has furnished the enquiry report to the Director of School Education, Hyderabad under Lr.Rc.No.18/458/D2/93, dated 21.9.1996. The Director of School Education, Hyderabad examined the entire material and directed the District Educational Officer, Hyderabad to cancel the proceedings Rc No.18/458/D2/93, dated 8.7.1993 whereunder orders were issued for absorption of Smt. P.Yashodhara (writ petitioner) into Grant-in-aid post of Telugu Pandit Gr.II in Tagore Home New Era High School, Secunderabad. The District Educational Officer issued proceedings Rc.No.18/458/C1/93, dated 9-1-98 directing the Tagore’s Home New Era High School to terminate the services of Smt. P.Yashodhara by cancelling the absorption orders issued in Proceedings Rc.No.18/458/D2/93, dated 8.7.1993. Accordingly, the Correspondent of Tagore Home New Era High School, Secunderabad terminated the services of the writ petitioner herein under Proceedings No.TH/EST/Rc No.1/98, dated 19.1.1998. She presented an appeal to the Government assailing the order of termination-dated 19.1.1998. When her appeal was not acted upon, she filed Writ Petition No.25207 of 1998. The said writ petition came to be disposed on 14th September 1998 directing the Government to dispose of the appeal within 90 days. She even moved contempt case No.47 of 2000 complaining disobedience of the order dated 14.9.1998 passed in Writ Petition No.25207 of 1998. The Government disposed of the appeal on 5.6.2010. Consequently, the contempt case No.47 of 2000 came to be closed. The Government referred the findings of the enquiry officer dated 29.9.1996 and dismissed the appeal, by Memo No.1772/PS-1/1995-11, dated 5.6.2000. Paras 6 and 9 of the Memo issued by the Government needs to be noted and they read as hereunder:- “6) The Commissioner and Director of School Education, Hyderabad in his proceedings dated 1.12.1997 has shown the following three findings based on the enquiry report dated 21.9.1996 for the terminating of Smt. P.Yashodhara. 1 ) TC bearing No.63240 dated 22.9.1976 produced by Smt. P.Yashodara is not genuine as certified from the TC Book and admission register of Venkata Rao Memorial High School, Laldarwaza for the particular year. No application form by name Smt. P.Yashodara was found during 1960. 2) Telugu Pandit Training Certificate (from 1.7.1983 to 30.11.1983) is genuine as stated by the Prinicipal, Institute of Advanced Study in Education, Masab Tank, Hyderabad. However, there is a variation in date of birth. Date of Birth as per TC 15.8.1953 Date of Birth as per TC 15.8.1959 Training Certificate 3) Visharada Certificate- There is no proof at the office of the Andhra Saraswatha Parishad, Hyderbad that Visharadha Examination was conducted during 1973 and Smt. P.Yasodhara has written examination at Sircilla during August 1973. Further, there is no signature of the Secretary on the counter foil. There is no signature of any one who has received or taken the certificates and there is no other proof available of any kind except counter foil of the certificate of Visharada 9. As per the finding of the Enquiry Report, the certificates relating to basic qualifications for appointment i.e., Class VIII, the TC Certificate bearing No.62340, dated 22.9.1976 produced by the petitioner Smt. P.Yashodhara, are not genuine as verified from the TC books and Admission Register for that particular year as per the report of the District Educational Officer. As such, without basic general qualifications and Training, qualification certificates produced by the incumbent and the appointment of the incumbent without having required qualification is not eligible to be appointed as a teacher or to be absorbed into Grant-in-aid post in any recognised educational institution in the State”. 8. The petitioner filed Review Appeal before the Government. Her review appeal ended in dismissal on 12.12.2010. Hence, this writ petition assailing the action of the Secretary and Correspondent (R-4) in terminating her services through order bearing No.TH/EST/Rc No.1/98, dated 19.1.1998, the order passed by the Government in Memo No1772/PS-1/1995-11 Education (SE/PS-1) Department, dated 5.6.2000 rejecting the appeal dated 20.02.1998 and also dismissal of the review appeal dated 26.6.2000 by the Government through Memo No.11004/PS-1/2000-2, dated 27.11.2000. She also assailed the action of the respondents in not paying salaries from 01.11.1989 to 6.2.1998 and sought a direction to the respondents to pay salary for the said period. 9. The principle grounds of challenge of the proceedings is that she was not furnished a copy of the enquiry report nor she was permitted to participate in the enquiry conducted by the District Educational Officer, Hyderabad. According to her, she did not study in Venkatrao Memorial High School, Lal Darwaja, Secunderabad and that the TC said to have been issued by the said school was the creation of her opponent Smt. Hanumayama to deprive her absorption in aided post of Telugu Pandit Gr.II. 10. Rule nisi came to be issued on 14.3.2001. An interim direction came to be issued to the respondents to consider the representation of the petitioner dated 7.11.2000 as per orders in W.P.M.P.No.5606 of 2001. 11. Respondents 1 to 3 entered appearance and filed W.V.M.P.No.1268 of 2002 to vacate the interim order dated 3.10.2001 passed in W.P.M.P.No.5606 of 2001. The counter of the respondents 1 to 3, in brief, is:- The petitioner did not possess basic qualification i.e., Class VIII and the TC Certificate 63240 dated 22.9.1976 produced by the petitioner was found to be not genuine during the enquiry. Since she did not possess general qualifications and therefore, she is not eligible to be appointed as a teacher or to be absorbed into grant-in-aid in any recognised educational institution in the State. Paras 6 and 7 of the counter affidavit needs to be noted and they read thus:- “6. It is further submitted as per the findings of the enquiry report the basic qualification (i.e.,) Class VIII, the T.C.Certificate bearing No.63240 Dt.22-9-76 produced by the petitioner Smt P.Yashodhara is not genuine. As such without basic General Qualifications and training the qualification certificates produced by the incumbent and the appointment of the incumbent without having required qualification is not eligible to be appointed as a teacher or to be absorbed into Grant-in aid in any recognized educational institution in the State. It is clear that Smt. P.Yashodhara, T.P.Gr.II has cheated the Department by producing the bogus certificates of General Educational qualifications and to get absorbed into grant-in-aid post of T.P.Gr.II in Tagore’s home New Era High School, Sec’bad. The orders issued in DSE’s Procs.Rc.No.1431/D1-5/92 Dt.15-4-1993 wherein the directions were issued to the Dist. Ednl. Officer, to absorbed Smt. P.Yashodhara into Grant-in-aid post of T.P.Gr.II are cancelled vide D’s Dt.01-12-1997. 7. Accordingly the Dist. Ednl. Officer, vide Procs.Rc.No.18/458/C1/93, Dt.09-01-1998 has cancelled the orders issued in absorbing Smt. P.Yashodhara, into Grant- in-aid post of T.P.Gr.II vide DEO’s Procs. Rc.No.18/.458/D2/93, Dt.08-07-1993, and also directed the Correspondent, Tagore’s Home New Era High School, Sec’ bad to terminate the services of Smt. P.Yashodhara T.P.Gr.II immediately and if she is continued in service consequences will have to be borne by the Management. The question of payment of salary in Grant-in-aid post does not arise as the petitioner is working as Teacher without any General/Training qualifications by cheating the Department. Accordingly the Management of the School vide order No.TH/Est/Rc.No.1/98, 19-01-1998 had terminated services of the petitioner with immediate effect.” 12 By order dated 19.7.2002, the vacate stay petition being W.V.M.P. 1268 of 2002 filed by respondents 1 to 3 came to be disposed of making the interim order absolute with regard to direction to respondents 1 to 3 to pass fresh orders on the representation dated 7.11.2000. 13. The writ petitioner filed rejoinder to the counter affidavit filed by respondents 1 to 3. Except narrating the sequence of events right from the date of her appointment in un-aided post till the date of filing of the writ petition, no additional grounds have been urged in challenging the proceedings issued by respondents 1 to 3 in terminating her services. 14. On 28.01.2011, a direction has been given to the Government Pleader to produce the entire file. Accordingly, the Government Pleader for School Education, produced the entire file. As could be seen from the letter addressed by the District Educational Officer to the Government Pleader for School Education that the enquiry report as well as the notice served on the petitioner were not traced. It is pertinent to note the relevant portion of the letter bearing No.14325/D2/1996, dated 13.6.2000 addressed to the G.P for School Education, A.P., Hyderabad, which reads as hereunder:- “ In this regard, I submit that the petitioner has cheated the Department by producing bogus certificates of General Educational Qualifications and to get absorbed into grant-in- aid post of T.P.Gr.II in Tagore’s Home New Era High School, Secunderabad and the Correspondent of the above said school is directed to terminate the services of Smt. P.Yashodhara, T.P.Gr.II. In this connection, I submit that the records have been thoroughly verified in the 4th respondent school, Dy.Educational Office and the 3rd respondent office. But the enquiry report and notice served on the petitioner were not traced as the said report was pertaining to 1998 period”. 15. Heard learned counsel appearing for the petitioner and learned Government Pleader for School Education appearing for respondents 1 to 3. 16. Learned counsel appearing for the petitioner submits that the enquiry by the District Educational Officer came to be conducted without putting on notice to the petitioner and even the copy of the enquiry report was not served on the petitioner before passing the orders terminating her services. He would also contend that the petitioner had not produced Transfer Certificate bearing No.63240 dated 22.9.1976 at the time of joining in Tagore Home New Era Secondary School as Secondary Grade Telugu Teacher and the said certificate was concocted by Smt. Hanumayamma, who was aspiring her absorption in Grant-in-aid post of Telugu Pandit Gr.II. In nutshell, it is the contention of the learned counsel that the order impugned in the writ petition came to be passed by the authorities in contravention of the principle of audi alteram partem’ and therefore, the same is liable to be quashed and the writ petitioner is to be reinstated into service as Telugu Pandit Gr.II. 17. Learned Government Pleader for School Education submits that the petitioner played fraud on the authorities and secured initial appointment order as well as her absorption in grant-in-aid of Telugu Pandit Gr.II in which case, the principle of audi alteram partem cannot be pressed into service. He would also contend that the District Educational Officer conducted enquiry by following the due procedure and verified the certificates produced by the writ petitioner at the time of her appointment as a teacher on consolidated basis in Tagore’s Home New Era High School and ultimately, the Transfer Certificate produced by the petitioner was found to be fake and therefore, the authorities were justified in recalling the orders issued earlier absorbing the writ petitioner in to aided post of Telugu Pandit Gr.II and directing the Correspondent, Tagore’s Home New Era High School to terminate her services. In support of his submissions, reliance has been placed on the decision of Supreme Court in State of Chhattisgarh v Dhirjo Kumar Sengar1 and Punjab & Haryana High Court v. Megh Raj Garg2. 18. In reply, learned counsel appearing for the petitioner submits that non-furnishing of the copy of the enquiry report said to have been submitted by the District Educational Officer, has caused a great prejudice to the petitioner and therefore, any order passed basing on the said enquiry report is a nullity, in which case, the order passed by the primary authority and as confirmed by the appellate authority is liable to be set aside. 19. Indisputably, the petitioner submitted a representation, dated 26.06.2000 and it is in the form of review appeal. In the representation, it is stated as hereunder: “The meeting was held in the Chamber of Jt. Secretary on 4.8.1997 and the following members were present:- 1.Smt.A.V.Laxmi, Jt. Secretary 2. Smt.P.A.V.Prasad, Asst. Secretary 3. Sri Dharam Raj, G.A. of DEO Hyd. A.P. Ref.F.No.1772/PS-1/95-18 Edn. dtd.23.8.1997. In the meeting same was repeated as stated by the Management. No Truth. In the meeting it was also brought out that P.Yashodhara neither furnished the original nor certified copies of the certificate to the Management without verifying the records in Dept. file simply blaming me and truth to be burried. Please note that I have submitted the certificates on 24/7/1996. Meeting was held on 23.8.1997. More than one year one month passed. The Secretary, Edn. Dept. not received the information about certificate about Higher Authorities. It is clear that no respect on higher authorities – simply lodging the complaints and spreading the ill healthy atmosphere in the Dept. by the Head Master and Hanumayamma spreading the money, fabricated the documents and tampering of record and influencing the officers.” 20. What is to be gathered from the above text in the representation is that she was given an opportunity in the meeting held in the Chambers of the Joint Secretary on 04.08.1997. She was considered for absorption in grant-in-aid post of Telugu Pandit Gr.II on the basis of the certificates filed by her at the time of her joining in the School in unaided post on consolidated pay. The basic certificate i.e., T.C., on enquiry found to be fabricated. As held by the Supreme Court in State of Chhattisgarh v. Dhirjo Kumar Sengar’s case (1 supra), in case of fraud, principles of natural justice are not required to be complied with. When the petitioner has been given opportunity to participate in the meeting, which is explicit from her own representation, dated 26.06.2000, it is impermissible to her to contend that she was not heard before passing the orders impugned in the writ petition. In that view of the matter, I find that the Writ Petition is devoid of merits and it is liable to be dismissed. 21. Accordingly, the Writ Petition is dismissed. No costs. __________________________ B. SESHASAYANA REDDY, J Date: 01st July, 2011. Note: The record produced by the A.G.P. is returned herewith. B/O RAR/Cs THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY Writ Petition No.4357 of 2001 Date:01st July, 2011 1 2009(13) SCC 600 2 2010 (6) SCC 482