Krishna Hare Gaur vs Vinod Kumar Tyagi And Ors

3. Brief facts which led to the filing of this appeal are as under:- Vidyapati Junior High School, Jageshwar, Murshangate, Mahamaya Nagar, District Hathras, U.P., which is an aided and recognized Junior High School, issued an advertisement on 28.07.2010 in the daily newspapers inviting applications from the eligible candidates for appointment on the post of Headmaster. Krishna Hare Gaur, the appellant along with Vinod Kumar Tyagi, respondent No.1 and several other persons applied for the said post. Respondent No.1 was selected and his appointment was approved by the District Basic Shiksha Adhikari on 09.09.2010 and appointment letter was issued on 10.09.2010. Based on the information obtained through RTI, the appellant made a representation dated 04.10.2010 to all the concerned authorities alleging that respondent No.1 had obtained appointment by using forged experience certificates along with his application. The appellant also submitted another complaint dated 15.10.2010 to the District Magistrate, Mahamaya Nagar. Since no action was taken by any of the authorities, the appellant filed Writ Petition No.70074/2010 raising objections to the said appointment. The learned Single Judge of the High Court, after hearing the parties, vide order dated 02.12.2010 directed the District Basic Shiksha Adhikari to pass a reasoned order within a period of six weeks. The District Basic Shiksha Adhikari, vide order dated 3.02.2011, rejected the representation of the appellant. Aggrieved by the said order, the appellant preferred Writ Appeal No.13537/2011, which was also dismissed, vide order dated 10.03.2011, holding that the District Basic Shiksha Adhikari has recorded a categorical finding that he inspected the original records and found that Respondent No.1 has requisite five years teaching experience.

5. Aggrieved by the cancellation of appointment, Respondent No.1 filed Writ Petition No. 20297/2012 before the High Court, impleading the appellant herein as one of the respondents. The learned Single Judge of the High Court, vide order dated 22.05.2012, dismissed the writ petition on the ground that appointment of respondent No.1 is contrary to the statutory provisions as he did not possess the relevant experience certificates. Aggrieved by the above order, the respondent No.1 herein, preferred a Special Appeal No. 1165/2012 before the High Court which was allowed by the Division Bench by applying the principle of res judicata. Being aggrieved by the order of the Division Bench, the appellant (respondent No.8 before the High Court) preferred this appeal by special leave assailing the correctness of the order of the Division Bench.

11. Based on the complaint made by the appellant to the District Magistrate, the District Magistrate directed Additional District Magistrate to conduct an inquiry, pursuant to which the Additional District Magistrate conducted an inquiry and submitted his inquiry report on 31.03.2012. On a perusal of the order passed by the District Magistrate dated 3.04.2012 and the report of the Additional District Magistrate, it is seen that the Additional District Magistrate has conducted a detailed inquiry and perused all the relevant documents viz., inquiry proceedings conducted by the District Basic Education Officer dated 03.02.2011 and attendance and salary registers of various colleges from whom respondent No.1 obtained experience certificates. Respondent No.1 produced experience certificates from five schools to satisfy the mandatory norm of Rule 4(2)(c) read with Rule 2(h) of the 1978 Rules which prescribes a minimum of five years of teaching experience for appointment on the said post. On perusal of the relevant records, the Additional District Magistrate noticed that in the registers of Mata Premlata Tiwari Inter College, the name of respondent No.1 was shown at the end of the respective months. The Additional District Magistrate noticed that even the ink and handwriting with which the names of other teachers and respondent No.1 were written was found to be different. The salary registers produced did not bear the signatures of the Headmaster and Salary Clerk. Similar disparities were noticed in the records of B.M. Inter College. Upon perusal of those records, attendance register and salary registers of various schools, the Additional District Magistrate submitted his report opining that the first respondent obtained forged certificates for securing appointment. The Additional District Magistrate also observed that the Basic Education Officer did not thoroughly conduct the inquiry and, therefore, the said report of District Basic Education Officer cannot be relied upon.

14. The Division Bench did not go into the merits of the matter, but dismissed the writ appeal mainly applying the principle of res judicata. The Division Bench observed that the appellant has not disclosed the dismissal of the earlier writ petition and also the Writ Appeal No. 13537 of 2011 and thus the second writ petition challenging the appointment is barred under the principles of res judicata to challenge the appointment of respondent No.1. As discussed earlier, from the materials on record, it emerges that respondent No.1 did not possess requisite experience of five years and his appointment is in contravention to Rule 4(2)(c) read with Rule 2(h) of the 1978 Rules, and therefore, the appointment of respondent No.1 is not valid in law and the earlier Writ Appeal No. 13537 of 2011 was dismissed mainly on the ground that the District Basic Education Officer has recorded a finding that respondent No.1 has the requisite five years teaching experience. The Additional District Magistrate, as noticed earlier, observed that the District Basic Education Officer did not thoroughly conduct the inquiry, and therefore, dismissal of the earlier writ appeal cannot be taken as res judicata.

Since respondent No.1 obtained appointment on the basis of bogus certificates, in our considered view, the principle of res judicata will not be attracted to the case on hand.

17. Since the appointment of respondent No.1 is conditional that in the case of any concealment of facts, the approval is liable to be cancelled, the Basic Shiksha Adhikari rightly passed the order cancelling the appointment which was rightly upheld by the learned Single Judge. The Division Bench was not right in setting aside the order of the learned Single Judge on the principles of res judicata and the impugned order of the Division Bench is liable to be set aside.

18. In view of the above, the order passed by the Division Bench of High Court in Special Appeal No.1165 of 2012 is set aside and the appeal is allowed. The parties are left to bear their own costs.

February 11, 2015