Patel Jagrutiben Manharlal vs Director of Primary Education and Others

V.M. Sahai, J.—This Appeal has been filed challenging the order dated 6th March, 2009 passed by Respondent No. 3 removing the Appellant from service as Vidya Sahayak. The order of termination has been upheld by the learned Single Judge on 21st July, 2009 in Special Civil Application No. 2838 of 2009.

The facts in brief are that the Appellant has passed her Secondary School Certificate Examination. She passed her Higher Secondary Certificate Examination in March, 2000 with 71.83% marks. She has also passed Art Teachers Diploma (for short "ATD") Examination with 84.38% marks in the year 2004. She being a football player, participated in Gujarat Women''s Football Championship organised at Ahmedabad by Gujarat Women''s Foodball Organisation during 1.11.2003 to 2.11.2003. She also participated in 27th Women''s Football National Championship organised during 26.12.2003 to 29.12.2003 conducted at Lonawala by Maharashtra Women''s Football Association. Applications were invited by the Respondent No. 3 by advertisement in daily newspaper "Gujarat Samachar" on 14.7.2004 for the post of ATD Vidyasahayak. That the Appellant applied for appointment for the post of ATD on 22.7.2004. The Appellant was directed to remain present for verification of the certificates. The Respondent No. 3 issued the appointment letter for the post of Vidya Sahayak to the candidates upto serial No. 8 of ATD general category. The Appellant was at serial No. 9 and as the Appellant was not appointed as Vidya Sahayak, she preferred Special Civil Application No. 15466 of 2004 before High Court and the learned Single Judge vide order dated 8.12.2004 allowed the said Special Civil Application directing the Respondent to consider the claim of the Appellant for recruitment to the post of Vidya sahayak in sports quota, after verification of the certifictes regarding the participation in the football camp and by further observing that Director of Primary Education can initiate appropriate inquiry to find out the genuineness of the certificate produced by the Appellant.

As per the Appellant, in spite of the aforesaid direction, the Respondent neither initiated any action to inquire regarding the sports certificate of the Appellant nor the Appellant was appointed by giving the benefit of additional marks of sports quota, therefore, the Appellant again approached this Court by way of Special Civil Application No. 6091 of 2005, which was allowed by the learned Single Judge vide order dated 6.9.2006 directing the District Primary Education Committee, Sabarkantha to appoint the Appellant as Vidyasahayak (ATD) teacher. However, in the meantime, the Respondent No. 3 sent a letter to the Appellant dated 22.2.2007 asking clarification from the Appellant within 10 days regarding the sports certificate. The Appellant sent her clarification. Thereafter, the Appellant was appointed vide order dated 1.3.2008.

The Respondent No. 3 issued a show cause notice to the Appellant on 16.4.2008 alleging that sports certificate produced by the Appellant was not genuine and the Appellant was present at the college at the time of when football championship was organised. Being dissatisfied with the aforesaid show cause notice dated 16.4.2008, the Appellant preferred Special Civil Application No. 6982 of 2008 before this Court. The said Special Civil Application came to be dismissed by the learned Single Judge by order dated 5.5.2008. The Appellant preferred Letters Patent Appeal No. 546 of 2008 and the Division Bench vide order dated 14.5.2008 rejected the Appeal confirming the order dated 5.5.2008 passed by the learned Single Judge. Thereafter, the Appellant submitted her reply to the show cause notice dated 16.4.2008 on 5.6.2008.

That the Respondents appointed one Shri Dr. C.S. Vyas, Deputy District Primary Officer as Inquiry Officer and one Smt. Kamlaben K. Patel, Education Inspector, Punsari was appointed as Presenting Officer. The Inquiry officer vide communication dated 28.7.2008 informed the Appellant the date of hearing on 4.8.2008. It is the case of the Appellant that she requested the inquire officer to permit her to engage one Mr. Prabhudas Jethabhai Patel to assist her. The inquiry officer informed the Appellant that she was requested to produce the permission of the Institute where Shri P.J. Patel was serving. Accordingly the Appellant obtained the permission from Shri Malpur Taluka Kelavani Mandal and filed it before the Inquiry Officer. By communication dated 4.9.2008 the Inquiry Officer informed the Appellant she had not permission obtained from the competent authority and therefore, her request to engage Shri P.J. Patel as legal assistant had been rejected.

The Presenting Officer submitted his written arguments with respect to charges levelled against the Appellant and the same was sent to the Appellant on 23.10.2008. The Appellant received the letter dated 21.11.2008 from the inquiry officer to submit her reply in defence on the written submission of the Presenting Officer which was sent on 23.10.2008 within five days from the receipt of the above letter. By letter dated 26.11.2008, Appellant informed the inquiry officer that she has not received the written submission dated 23.10.2008 of the Presenting Officer. In spite of the letter dated 26.11.2008, the inquiry officer again by letter dated 26.12.2008 directed the Appellant to submit her reply in defence on the written statement of the Presenting Officer dated 23.10.2008. Without waiting for the defence of the Appellant, the Inquiry Officer submitted his report dated 12.1.2009 holding that the charges levelled against the Appellant were proved.

The Respondent No. 3 by letter dated 9.2.2009 sent the copy of the report to the Appellant and sought explanation by way of final reply of the Appellant on the basis of the report. The Appellant by letter dated 2.3.2008 sent her reply to the notice/letter dated 9.2.2009 and thereafter the impugned order has been passed by the Respondent No. 3 removing the Appellant from service, by order dated 6.3.2009 holding that the certificate produced by the Appellant with respect to participating in 27th Women''s Football Championship organised during 26.12.2003 to 29.12.2003 held at Lonawala by Maharashtra Women''s Football Association was bogus and in fact the Appellant had not participated at all in the said Football National Championship orgnised at Lonawala as the Appellant was present in the institute/college on 26.12.2003. Being aggrieved and dissatisfied with the impugned order dated 6.3.2009 of removing the Petitioner from service, the Appellant preferred Special Civil Application No. 2838 of 2009 which has been dismissed by the learned Single Judge on 21.7.2009. Both the orders have been challenged in this Appeal.

We have heard Mr. Paresh Upadhyay, learned Counsel appearing for the Appellant, Learned Assistant Government Pleader Mr. N.J. Shah appearing for Respondent Nos. 1 and 2 and Mr. Manish J. Patel, learned Counsel appearing for Respondent No. 3. With the consent of the learned Counsel for the parties, this Letters Patent Appeal has been taken up for final disposal.

The only question on the basis of which the Appellant has been non-suited by the learned Single Judge is that the Appellant did not participate in the 27th Women''s Football National Championship organised during the period from 26.12.2003 to 29.12.2003 held at Lonawala by Maharashtra Women''s Football Association. At the time of appointment, the Appellant had produced certificate that she had participated in the aforesaid football tournament and according to the Respondent No. 3, the certificate submitted by the Appellant was bogus and the Appellant had not participated in the said Football National Championship organised at Lonawala because the Appellant was shown to be present in the institute/college on 26.12.2003. The reason given by the learned Single Judge was that if the Appellant was present on 26.12.2003 in the institute/college, then she could not have remained present at the Women''s Football National Championship at Lonawala. Further, the learned Single Judge has recorded a finding that on 27th December, 2003, the Appellant joined other students `of the institute/college in the tour organised by the college. From these facts, the learned Single Judge came to the conclusion that the Appellant did not participate in the Women''s Football National Championship and the sports certificate submitted by her was bogus and she was wrongly given appointment under sports quota as Vidya Sahayak.

The fate of this case hinges on the question as to whether the Petitioner participated in the Women''s Football National Championship at Lonawala and whether she could have come back and joined the tour organised by the college on 27th December, 2003. The argument of the learned Counsel for the Appellant is that those students who had participated in the Women''s National Football Championship and those students who were to attend the tour organised by the college were marked as present by the college as the students were not required to suffer in attendance because of their participation in the tournament or tour. Their presence was marked so that the students who are interested in sports may participate in sports without being worried about their attendance in the college. Therefore, the Appellant was marked present on 26th December, 2003 which appears to be genuine and this fact has not been disputed. This fact is mentioned in the explanation of the Appellant, but much weight has been given to the fact that how the Appellant was present in the college on 27th December, 2003 actually went on tour with other students. This has been explained by the Appellant in the additional affidavit filed by her, in paragraph-1 whereof, it has been stated as under:

I say that on 26.12.2003, the team of the Appellant lost the very first match of the tournament and thus, knocked out of the tournament. I say that on that day, for the whole day, matches were to be played between different teams in different time slots. I further say that the match which the Appellant had played was slotted before noon. I say that being knocked out of the tournament before noon, in the afternoon, the Appellant had started in a private vehicles from Lonawala and reached Himmatnagar on 27.12.2003.

Learned Counsel Mr. Manish J Patel for Respondent No. 3 has drawn our attention to the additional affidavit-in-reply dated 24.3.2011 and submitted that nowhere the Appellant has given any details of mode of transport whether she came back by road or by train or by other mode of transport and it shows that the Appellant has not participated in any tournament nor she went to Lonawala for the said purpose.

From the above referred averments of the additional affidavit submitted by the Appellant, it appears that she has categorically stated that she had boarded private vehicle from Lonawala and reached Himmatnagar on 27.2.2003 and thus there appears no substance in the submissions made by the learned Counsel for Respondent No. 3.

From the aforesaid explanation, it is apparent that the match of the Appellant was fixed before noon on 26.12.2003 and since they lost in the first round itself and were knocked out of the tournament, therefore, they came back on the same day in a private vehicle from Lonawala and reached Himmatnagar on 27.12.2003 and thereafter, the Appellant attended the college and went on tour organised by the college. The Respondents have tried to dispute this fact by stating that the itinerary of the tournament has not been annexed, but this fact could not be disputed by them that the football match was played before noon and the team was knocked out in the first round on 26.12.2003. Therefore, the Petitioner could have attended the college and as a matter of fact, she did attend the college on 27.12.2003 and went on tour alongwith other students from the college. It is a matter of common knowledge that those students who represent their State and participate in national tournaments are given attendance by the college so that their attendance may not become short affecting their prospect in appearing in the ensuing examination. Therefore, we are of the considered opinion that the certificate submitted by the Appellant that she participated in the Women''s National Football Championship at Lonawala on 26.12.2003 was not a bogus certificate and the Appellant was entitled for appointment in sports quota and she has been rightly appointed under the sports quota by the Respondents.

For the aforesaid reasons, the impugned order passed by the Respondent No. 3 dated 6.3.2009 and the order of the learned Single Judge dated 21st July, 2009 in Special Civil Application No. 2838 of 2009 cannot be maintained.

In the result, this Letters Patent Appeal succeeds and is allowed. The order dated 6th March, 2009 passed by the Respondent No. 3 and the order of the learned Single Judge dated 21st July, 2009 in Special Civil Application No. 2838 of 2009 are set aside. The Respondent No. 3 is directed to reinstate the Appellant in service forthwith with all benefits of service and continuity of service. The Respondents shall also pay her arrears of salary within a period of three months from today.

As the Letters Patent Appeal is allowed, Civil Application does not survive.