IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11317 of 2000 with SPECIAL CIVIL APPLICATION NOS.12129,12130,11897,11388, 12002, 11196, 11197, 11198, 11477, 11578, 11579,11580, 11165 to 11195, 11245 to 11250, 11494, 11496, 11497, 11242, 11313, 11350, 11373, 12587, 11894, 11825 to 11832, 11256, 11257,11258, 11277 to 11281, 11318, 11319, 11833, 13236, 11236, 11292 and 13451 all of 2000. For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : to see the judgements? 2. To be referred to the Reporter or not? : 3. Whether Their Lordships wish to see the fair copy : of the judgement? 4. Whether this case involves a substantial question : of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : -------------------------------------------------------------- MANAT KHEMRAJ SOMAJI Versus DIST PRIMARY EDUCATION OFFICER -------------------------------------------------------------- Appearance: MR KB PUJARA, Mr. A.D. Mithani, Mr. J.K. Raval, Mr. N.S. Desai, Mr. D.V.Shah, Mr. Anil Thakore, Mr. M.V. Patel with Mr. J.K. Raval, Mr. Mehul K. Vakharia, Mr. Vanraj D. Pargi, for Petitioners. MR RA MISHRA with Mr. M.N. Popat for Respondent 1to3. Ms. Manisha Lavkumar, AGP for respondent Government in SCA No. 11165,11166, 11242, 11292, 11313, 11578,11579, 11580 all of 2000. -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 27/12/2000 CAV JUDGEMENT There are some basic values which man has cherished throughout the ages. But man looked about him and found the ways of men to be cruel and unjust and so also their laws and customs. He saw men flogged,tortured, mutilated, made slaves, and sentenced to row the galleys or to toil in the darkness of the mines or to fight in an arena with wild and hungry beasts of the jungle or to die in other ways a cruel, horrible and lingering death. He found judges to be venal and servile to those in power and the laws they administered to be capricious, changing with the whims of the ruler to suit his purpose. When, therefore, he found a system of law which did not so change, he praised it. Thus, there was neither hope nor help in man made laws or man established customs for they were one sided and oppressive, intended to benefit armed might and monied power and to subjugate the downtrodden poor and the helpless needy. If there was any help to be found or any hope to be discovered, it was only in a law based on justice or reason which transcend the laws and customs of men, a law made by someone greater and mightier than those men who made these laws and established these customs. Such a person could only be a divine being and such a law could only be 'natural law' or 'the law of nature' meaning thereby 'certain rules of conduct supposed to be so just that they are binding upon all mankind'. It was not 'the law of nature' in the sense of 'the law of the jungle' where the lion devours the lamb and the tiger feeds upon the antelope because the lion is hungry and the tiger famished but a higher law of nature or 'the natural law' where the lion and the lamb lie down together and the tiger frisks with the antelope. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of administrative law, they may have to be replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reason in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, the like principle of audi alteram partem, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its proper spirit and mere presence of compliance with it would not satisfy the requirement of law. It appears that even the executive authorities when taking administrative action which involves any deprivation of/or restriction on inherent fundamental rights of citizens must take care to see that the justice not only done but manifestly appears to have been done. They have a duty to proceed in a way which is free from even appearance of arbitrariness or unrneasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. In this group of petitions, order of termination dated 12th October, 2000 is under challenge. All the petitioners in this group of petitions were working on the post of primary teacher, duly selected and appointed by the District Primary Education Officer, District Education Committee, Junagadh District Panchayat, Junagadh. Since all these petitions raise common questions of law and facts relating to the impugned order of termination dated 12th October, 2000, all these petitions were heard together and are decided by this common judgment. Rule in each petitions, service of which is waived by Mr. R.A. Mishra, and Mr. Manoj Popat, learned advocates appearing for the respondents. With the consent of the learned advocates for the parties and in the facts and circumstances of the case, all these petitions are taken up for final hearing today. The facts which are common to all these petitions are as under: The petitioners belong to scheduled tribe. The petitioners have passed their SSC Examination with more than 55 per cent of marks. That by circular dated 2nd January, 1990, the State Government in its Education Department, decided to fill up about 4900 back log vacancies of primary teachers of scheduled tribes on expeditious basis and, therefore, the respondent NO.1 herein had issued an advertisement dated 15.2.1990 inviting applications from only scheduled tribe candidates to appear at the open interview on 21st February, 1990. The required qualification was that of passing of SSC Examination and the requirement of age was between 18 to 33 years. According to the petitioners, neither minimum marks required for selection and appointment nor number of vacancies were notified in the advertisement. Being eligible and qualified, the petitioners had appeared at the open interview with all of original mark sheets and certificates. The petitioners were duly selected by the duly constituted selection committee and their names were placed in the select list. After fully verifying the original mark sheet and certificates of each petitioners and also after being satisfied about the petitioners,therespondentno.1 had issued appointment orders on 28th August,1990. Thereafter, the petitioners immediately joined the duties and discharged the duties honestly and sincerely for more than ten years till the date of their termination. During the said period, the respondent No.1 had sent the petitioners for PTC Training during vacations and the petitioners satisfactorily completed such period of training of PTC and passed the PTC Examination in the year 1994-1995. Since then, the petitioners have been paid the salary as a trained teacher. After the petitioners served for more than five years, the respondent no.1 had issued one show cause notice dated 9th January,1996 alleging that the District Education Committee had passed resolution no. 1/1 dated 1st August, 1990 prescribing minimum requirements of 56.42% of marks in SSC for the appointment and the petitioners were possessing the marks less than that and hence the services of the petitioners were required to be terminated. The petitioners immediately replied the said show cause notice. Thereafter, no further action was taken for further period of five years and then all of a sudden, according to the petitioners, termination order dated 12th October, 2000 has been served upon the petitioners on 30th October, 2000. According to the case of the petitioners, it was never told about the minimum percentage of of marks required for appointment nor any such requirement was prescribed either in the State Government circular dated 2nd January, 1990 nor in the advertisement dated 15.2.1990. The petitioners had produced original mark sheets and certificates and the selection committee duly selected them and the respondent no.1 duly appointed them with open eyes and now, after more than ten years' blotless services, the respondents have no authority in law to terminate their services on the alleged ground of some resolution having been passed on 1st August, 1990 by the District Education Committee ["the Committee" for short].It is also submitted that the District Education Committee is different from the selection committee and it is for the committee to prepare the select list. The petitioners were placed in the select list and the first respondent had rightly issued the order of appointment to the petitioners.The petitioners had not indulged into any illegality at any stage of selection process. Therefore, the petitioners cannot be visited with the impugned order of termination at this late stage after more than ten years' service. It is contended that no chargesheet was served upon the petitioners, no specific allegation of guilt has been alleged against the petitioners, no departmental inquiry has been held and no reasonable opportunity was given to them before passing the impugned orders of termination against the petitioner. That the petitioners have already completed the age of 33 years and now the petitioners have no chance of getting any alternative employment at this stage and,therefore,the impugned order of termination is contrary to all the canons of equity, law, justice, fair play and natural justice and,therefore,required to be quashed and set aside. The petitioners have specifically contended that according to the impugned orders of termination, the petitioners had obtained the present appointment by irregularity and,therefore, the impugned orders of termination has been passed by way of punishment. However, before passing such punitive orders, no chargesheet has been issued and it has been passed without specifically alleging the misconduct and initiating departmental inquiry into the charges and,therefore, the impugned orders of termination are violative of the basic principles of natural justice. The petitioners have produced on record the government resolution dated 2nd January, 1990 and advertisement dated 15th February, 1990, appointment order dated 28th February, 199-, directions of the district primary education officer dated 19.9.1990 to the concerned principals of the schools wherein it is stated that the petitioner has produced all the relevant original certificate before the district primary education officer and it was directed to the principal of the concerned school to allow to resume the duties to the petitioners. The school leaving certificate and mark sheets have been produced on record. The Government circular dated 23.4.1993 has also been produced wherein the list of the primary teacher who has satisfactorily undergone the training has been annexed with the said government resolution. In the said list, name of the petitioners have been recorded. Copy of completion of the PTC Certificate has also been produced on record. The mark sheet of such PTC training in respect of the petitioners have also been produced; copy of the show cause notice has also been produced on record; reply thereto dated 20.1.1996 has also been produced on record and the termination order dated 12th October, 2000 has also been produced on record. The respondent has filed reply to the present petition through one Mr. K.L. Dodiya District Primary Education Officer, District Panchayat Junagadh dated 7.11.2000 and the 2nd reply submitted by the same officer dated 19.12.2000. In their reply, the respondents have denied the averments made by the petitioners herein. It is further contended that the contentions raised are already covered by the decision of this court rendered in special civil application no. 3141 of 1993 and other allied matters. According to the respondents, the appointment has been obtained by practising fraud and illegality and that the petitioners have no right to approach this court under Article 226 of the Constitution of India. The respondents have submitted that the petitioners are having alternative remedy and,therefore these petitions are required to be dismissed on that ground. It is also contended that these petitions are required to be dismissed as the petitions are involving disputed questions of fact which cannot be appropriately decided under Article 226 of the Constitution. It is also submitted by the respondents that all these petitions are raising identical contentions about the order of termination and also regarding the procedure to be followed by the authorities and as per the direction of this court, the petitioners have been issued the notice to show cause and, thereafter, hearing was afforded and ultimately, the order of termination has been passed and the petitioners have obtained appointment by fraud and as the order of appointment itself is fraudulent, the entire procedure thereafter has been vitiated as a result of fraud and therefore, order of termination is quite legal, just and proper and has been passed after due compliance of the procedure. It is also submitted by the respondents that as a result of large scale fraud and illegalities and irregularities, order of appointment are obtained by the petitioners and the respondents have further submitted that the circular issued by the Government on 2nd January, 1990 to fill up the back log of the ST Candidates, appointments were required to be made. In December, 1989, such back log was to the tune of 469 posts and accordingly, advertisement was issued for open interview. The interview took place, list of candidate was prepared and the total number of candidates interviewed were in all 1364 and on the basis of the said list, selection committee prepared the first select list of 1162 candidates and inspite of this fact, the selection committee chairman, secretary and member subsequently included the names of the candidates illegally. The chairman of the selection committee included the names of 170 candidates on 5th March, 1990. The secretary of the committee included the names of 170 candidates. The chairman and secretary of the selection committee also included the names of 18 candidates on 12th March, 1990 whereas in the list of member, nine names were included and on 13.3.1990, 185 names were included in the list of chairman of the selection committee and 254 names were included in the list of secretary of the committee. Similarly, on 14.3.1990, there was not a single name in the list of chairman while in the list of secretary, 76 names were included while 100 names were included in the list of member of the committee. That on 15.3.1990, 67 names were included in the list of the chairman and 306 names were included in the list of secretary and 174 names were included in the list of member. Similarly, in the list of 21.3.1990, four names were included in the list of chairman and no names were included in the list of the secretary and member. The criminal complaint for this large scale irregulrity and fraud has been filed and the entire record is with the police.Thus, according to the respondents, the chairman, secretary and member of the then selection committee illegally included the names of the petitioners in fraudulent manner and also in collusion with the candidates as if they were present at the time of interview. The names of the candidates who have been included in the list mostly belongs to the Panchmahals District. Therefore, these names have been subsequently added and these candidates have not been interviewed by the selection committee. It is also submitted that after the preparation of the first selection list, 346 candidates were given appointment and these appointments were given in the regular manner after following due office procedure noting the appointment orders in the out ward register and sending them by post. Thereafter, large number of candidates have been appointed by the then district primary education officer in illegal and fraudulent manner practising fraud and nepotism without following regular procedure and without noting the orders in the outward register. As the payment to these primary teachers have to be made from the concerned taluka panchayats, these facts did not come to the knowledge of the authorities immediately. There are number of candidates whose names are not figuring in any of the legal or fraudulent registers and yet they have secured appointment orders. Names of the petitioners also do not figure in the back log registers maintained from the initial list of list of 1364 candidates and the select list of 1162 candidates and, therefore, when the initial entry itself is illegal, void ab initio and it was done by the committee in fraud, nepotism and mal practice, such appointment of the petitioners is contrary to the recruitment rules and the government guidelines. Thereafter, the respondents have submitted that in such mal practice and dishonesty committed by the chairman, secretary and member of the selection committee, the Government by letter dated 5.3.1993 directed to take appropriate action in the matter in accordance with law. Therefore, ultimately, the services of the petitioners were terminated by the respondents. All such teachers had approached this court by filing special civil application no. 3141 of 1993 and other allied matters and this court allowed the said matters by quashing and setting aside the orders of termination and it was directed to the authorities to issue the show cause notice fresh before taking any action. Thereafter, the procedure was followed in respect of such teachers. After following due procedure by issuing show cause notice and subsequently termination orders were passed against such teachers which was challenged by filing special civil application no. 7156 of 1994 and other identical matters.On 27th May, 1994, this court relegated such teachers to the alternative remedy of appeal before the tribunal under section 24 of the Bombay Primary Education Act,1947 and thereafter, the tribunal again terminated the services of 323 teachers by order dated 20.4.1994. Again, such orders were challenged before this court by filing petition being special civil application no. 12311 of 1995 and allied matters. All these petitions were allowed only on the ground that the petitioners were not given reasonable opportunity and that they should be permitted to engage lawyer while representing their case before the tribunal. Thereafter, before the tribunal, opportunity to engage advocate was given and the tribunal allowed all the appeals by order dated 17th October, 1996 and 273 teachers were directed to be reinstated in service within 15 days. Against such decision of the tribunal, the respondents had preferred revision application before the State Government and the said revision application was allowed by order dated 10th June, 1997 and the order of the tribunal dated 17.10.1996 was quashed and set aside. Against that order passed by the Government in revision against the order of the tribunal, such teachers had approached this court and this court by order dated 9.10.1997 passed the order of the State Government in revision and the education secretary was directed to pass appropriate orders after hearing the advocates for the petitioners in those petitions. Thereafter, the education secretary, after hearing the advocate for such teachers, passed order dated 7th April, 1998 quashing and setting aside the orders passed by the tribunal dated 17.10.1996. Thereafter, such teachers approached the chief minister by way of representation on 17.11.1997 and the said representation has also been rejected by the Hon'ble Chief Minister on 22nd April, 1999. However, this whole history has been given by the respondents in respect of some teachers whose services were earlier terminated by the first respondent and none of the petitioners herein were connected with any of such earlier proceedings. By giving such details, the respondents have pointed out that because of the pendency of the earlier proceedings in respect of some of the teachers, delay has occurred in taking action. In this group of petitions, on behalf of the petitioners, mainly Mr. Pujara has appeared and has submitted that in view of the government resolution dated 2.1.1990, the respondent had advertised the posts of the primary teachers on 15.2.1990 in respect of ST Candidates alone. It was an open interview and therefore, at the time of oral interview, candidates were required to tender hand written application as per the proforma prescribed alongwith two passport size photographs and original marksheet, certificate with certified copies of mark sheet and certificate and also required to produce certificate from the social welfare officer or the mamlatdar or any other recognised officer for having member of the scheduled tribe. According to Mr. Pujara, there was no such specific selection committee but each candidates were called for open interview just to produce their basic requirement of having educational qualification and to satisfy the age criteria and to satisfy that he candidate belongs to ST Community. This procedure was followed by each petitioner and as per the appointment order issued by the respondents, it is specifically mentioned that as per the personal interview and on the basis of such personal interview, and also on the basis of the result of the educational qualifications, the petitioners were selected and appointed as untrained primary teachers in the scale of Rs.950-1400 and the appointments were given on probation. IN the order of appointment, names of candidates, place of posting, school etc.has been mentioned. It is also mentioned in the appointment order that initially, the candidate will have to report before the committee and to produce original certificate and marksheet etc. and it is also mentioned in the order of appointment that if the candidate will not report within the period stipulated therein, then,such appointment shall stand cancelled. Such appointment orders were signed by the District Primary Education Officer. Such appointee was required to give bond for serving for five years' period and bond of Rs.10000/-. In view of the appointment orders issued by the respondents, the petitioners have produced all the necessary certificates before the district primary education officer, Junagadh and same has been received and certified by him by letter dated 19th September, 1990 with a direction to the concerned principals of the school to allow the petitioners to report as untrained primary teacher. Learned advocate Mr. Pujara has submitted that almost all the petitioners have completed their training of PTC and have passed the same and necessary certificate and mark sheet to that effect has also been issued by the concerned authority in their favour. Now, he has submitted that after the appointment of the petitioners, more than five years have gone and all of a sudden, on 9.1.1996, the respondent no.1 issued show cause notice to the petitioners wherein two facts were mentioned one of which is the reference made to the orders of this court in special civil application no. 3141 of 1993 and allied matters and it has been alleged against the petitioner that the said appointment has been obtained by adopting illegal means and by committing irregularities and allegation is also made that as per the select list, the petitioners are not possessing requisite qualification and said appointments were obtained by fraud and irregularities and, therefore, explanations were called for from each of the petitioners and the petitioners were directed to submit the same within three weeks and it was accordingly replied by each of the petitioners and in reply, the allegations of fraud and irregularity, nepotism etc. were denied by the petitioners. It is also mentioned by the petitioners that the petitioners were not a party to special civil application no. 3141 of 1993 or any other allied matters and that the original mark sheets, certificates were produced at the relevant point of time during the interview and the same was scrutinised and finalised by the respondents and thereafter the petitioners were selected and appointed to the post of primary teacher and subsequently in result, the petitioners were appointed. It is also submitted that during the total period of five vacation from 1992 to 1994, the petitioners have completed PTC Training and have also cleared