Gujarat High Court
Virendrasinh J. Thakur vs State Of Gujarat on 13 August, 2025
NEUTRAL CITATION
C/SCA/15441/2008 JUDGMENT DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15441 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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VIRENDRASINH J. THAKUR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner
MS DHWANI R TRIPATH, AGP for the Respondent(s) No. 1 - State
SERVED BY AFFIX. (R) for the Respondent(s) No. 2 - School Management
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/08/2025
ORAL JUDGMENT
1. The present petition, under Articles 226 and 227
of the Constitution of India, is filed by the petitioner with
the following main prayers.
“10A. Your Lordships may kindly be pleased to
issue a writ of certiorari and/or any other appropriate
writ, order and direction to quash and set aside the
impugned order passed by the Gujarat Secondary
Education Tribunal, Ahmedabad dated 21/22.02.2008 in
Application Nos.227 of 2006 and 176 of 2007 atPage 1 of 33
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Annexure A to this petition.
B. Your Lordships may kindly be pleased to held
and declare that the order dated 17.02.2007 passed by
the present respondent No.1 District Education Officer
is illegal, unjust, arbitrary and discriminatory.
C. Your Lordships may kindly be pleased to direct
the present respondent No.1 District Education Officer
to declare the present petitioner as a surplus employee
as per the rules and regulations and further be
pleased to direct the present respondent No.1 to
accommodate the present petitioner in other school or
education institution in Ahmedabad City.
D. Your Lordships may kindly be pleased to direct
the present respondent No.1 to pay the regular salary
to the present petitioner and further be pleased to
direct the present respondent No.1 to pay the arrears
of salary with effect from August, 2004 till date, to
which the present petitioner is entitled to.
E. Pending hearing and final disposal of this
petition, Your Lordships may kindly be pleased to
direct the present respondent Nos.1 and 2 to pay the
regular salary to the present petitioner.”
2. The facts of the case, as noted by the Tribunal,
are epitomized as under.
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2.1 The Shantiniketan Education Trust runs a
secondary school in the name and style of Shantiniketan
Hindi High School in Odhav area of Ahmedabad City. The
said school is a registered private secondary school and is
fully aided by the State Government. The Government has
recognised the school as a linguistic minority institution. The
petitioner was initially appointed as Junior Clerk on
20.07.1987. He was promoted to the post of Senior Clerk
w.e.f. 15.06.1989 and then promoted as Head Clerk w.e.f.
15.06.1991. He was working, as such, in the school till its
closure.
2.2 His appointment is approved by the District
Education Officer (‘the DEO’ for short) and he has received
his salary from the Government grant till 14.07.2004.
2.3 Two teachers of the School lodged a complaint
with the Vigilance Commissioner, Gujarat State, Gandhinagar
about the large-scale illegalities and fraud practiced by the
school Management. Upon receipt of the said complaint from
the office of the Vigilance Commissioner, the sleuths of
Education Department have, on 12.04.2004, raided the school
premises and found out several illegalities.
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2.4 On the basis of the report submitted by the
Inspecting Team, the Commissioner of Schools has passed an
order on 14.07.2004 in exercise of powers under Rule 95 of
Grant In Aid Code and has withheld complete grant to the
school. The Commissioner has also ordered prosecution of two
employees i.e. the present petitioner and other one, so also
the trustees). The Commissioner has observed in his order
that by showing the inflated strength of pupils (ghost
students), the school has got more classes and appointed
several teachers, most of whom happened to be the relatives
of trustees. By showing the inflated strength of pupils, the
management has obtained grant from the Government and
there was a large-scale fraud. It is also in the order of the
Commissioner that several employees were not even attending
the school but the salaries were being regularly assessed etc.
2.5 Pursuant to the said order, an FIR bearing C.R.
No.503 of 2004 dated 28.10.2004 came to be filed in the
Odhav Police Station, Ahmedabad City against the Trustees
and others, including the present petitioner for the offences
punishable u/s.406, 409, 420, 467, 468, 470, 471, 120(b) of
Indian Penal Code .
2.6 On the basis of the above-referred order of the
Commissioner of Schools, the Gujarat Secondary and Higher
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Secondary Education Board has vide order dated 08.12.2004
cancelled the registration of the school.
2.7 Feeling aggrieved by these orders, the school
management has filed Special Civil Application No.16742 of
2004 before this Court challenging the order of the
Commissioner of Schools dated 14.07.2004 and the order of
the Gujarat Secondary Education Board dated 08.12.2004.
2.8 The Coordinate Bench of this Court, vide judgment
and order dated 03.01.2005, has quashed the order of the
Board dated 08.12.2004 and has not disturbed the order of
the Commissioner of Schools dated 14.07.2004, as the
alternative remedy was available to the petitioner.
2.9 Education Department has, vide order dated
08.06.2005, decided the school’s appeal against the order of
the Commissioner of Schools dated 14.07.2004 by making
certain modifications.
2.10 Again, on 23.03.2005, the Gujarat Secondary and
Higher Secondary Education Board has cancelled the
registration of the school.
2.11 In appeal against the said order, Education
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Department has, vide order dated 26.07.2005, quashed the
Board’s above-referred order.
2.12 Meanwhile, the Trustees and the other accused
persons, including the present petitioner, have preferred a
Criminal Misc. Application No.11454 of 2004 before this Court
seeking quashment of the above-referred FIR.
2.13 In the said application, the Coordinate Bench of
this Court has, on 03.02.2006 and on 07.02.2006, passed some
orders marking serious observations against the school
management, so also the Education Department. However, on
27.02.2006, the said application has been withdrawn by the
applicants, including the present petitioner.
2.14 Thereafter, on 24.02.2006, the Education
Department has cancelled its order dated 26.07.2005 and
considering the illegalities of the School Management and the
observations of this Court, cancelled the registration of the
school.
2.15 It appears that this order of the Education
Department is assailed by the School Management by filing
Special Civil Application No.4103 of 2006 before this Court,
which is dismissed by the Coordinate Bench of this Court
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vide order dated 06.02.2018.
2.16 The applicants have, thereafter, on 21.02.2006,
surrendered themselves before the Odhav Police Station.
2.17 They have thereafter filed a Criminal Misc.
Application No.6217 of 2006 before this Court for bail and
were enlarged on bail vide order dated 21.07.2006 and from
25.07.2006, they are set to liberty.
2.18 After cancelling the registration of the school vide
order dated 24.02.2006, vide order dated 11.03.2006, the DEO
has instructed the employees of the closed school to mark
their presence temporarily in Gayatri Vidyavihar,
Khodiyarnagar, Odhav.
2.19 As narrated earlier, from 21.02.2006 to 25.07.2006,
the petitioner was in jail. After their release from jail, on
01.09.2006, he went to Gayatri Vidyavihar reporting for duty,
but the Head Master of the school has not allowed him to
join and, therefore, according to him, he has made
representations to the DEO on 11.09.2006, 15.09.2006 and
19.09.2006.
2.20 When the registration of an aided private
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secondary school is cancelled, under the Government
guidelines, the DEO is required to hold hearing of the
employees of the school and then pass orders of granting
them the protection of surplus according to their eligibility
and Government guidelines. The DEO has accordingly held
hearing and vide his order dated 16.09.2006, granted
protection of surplus to 33 employees, whereas the petitioner
and one another person were not given the said benefit on
the ground that these employees were involved in the fraud
and for which criminal cases against them are pending.
2.21 It appears that thereafter also, the petitioners has
made representation to the Management and some
correspondence between the Management and the DEO took
place. The DEO has, therefore, again held a hearing on
08.02.2007 for taking decision in regard to the petitioner. The
DEO has, vide his order dated 17.02.2007, again declined to
extend protection of surplus to the petitioner, mainly on the
ground that he was one of the parties to the large-scale
fraud and he was in the police custody for about 5 months
and, therefore, departmental actions are required to be taken
against the petitioner by the Management, which has not
been done.
2.22 It transpires that this order of the DEO was
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assailed by the petitioner and others before this Court in
Special Civil Application No.8230 of 2007 and the Coordinate
Bench of this Court has disposed of the said petition vide
order dated 28.03.2007 on the ground of availability of
statutory alternative remedy.
2.23 Thus, two orders passed by the DEO : (i) dated
16.09.2006 and (ii) dated 17.02.2007 declining to grant
protection of surplus to the petitioner are the subject-matter
of challenge before the Gujarat Secondary Education Tribunal,
Ahmedabad by filing Applications No.227 of 2006 and 176 of
2007.
2.24 The Tribunal has, vide impugned order dated
21/22.02.2008, after considering the material on record,
submissions made by the learned advocates for the respective
parties, provisions of law and keeping in mind the ratio laid
down by the Hon’ble Apex Court, rejected the said
applications.
2.25 It is this order impugned, which is challenged by
the petitioner before this Court in this petition and under
these factual background, this petition has heard and decided
this petition today.
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3. Heard learned advocates. Without the consent of
the learned advocates appearing for the respective parties, the
present petition is taken up for hearing and final disposal
today by this Court, as the pleadings are completed by the
parties.
4. It is noted that though served respondent No.2 –
Managing Trustee of Shantiniketan Education Trust has
chosen not to appear and contest this petition before this
court.
5. Learned advocate Mr. Vaibhav Vyas for the
petitioner has submitted that the Tribunal has failed to
appreciate the documentary evidences available on record; and
that the findings recorded by the Tribunal are contrary to
the provisions of the Gujarat Secondary Education Act, Grant
in Aid Code, 1964 and contrary to the Resolution /
Notification of the Government of Gujarat; and that the
Commissioner, Mid-day Meal and School had never informed
to the District Education Officer – respondent No.1 to lodge
the complaint against the petitioner; and that the petitioner
is falsely implicated in the alleged offence; and that
respondent No.2 – Management has decided not to initiate
the departmental proceedings against the petitioner till the
criminal trial is concluded; and that since the registration of
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school has been cancelled, it is incumbent on the part of the
respondent No.1 authority to declare the petitioner as a
surplus employee and he should be accommodated in other
school; and that findings recorded by the Tribunal is contrary
to the ratio laid down by the Hon’ble Apex in the case of
Board of Secondary Education and Teachers Training versus
Joint Director of Public Instructions, Sagar reported in (1998)
8 SCC 555 and in the case of Yunus Ali Sha versus
Mohamed Abdul Kalam reported in AIR 1999 SC 1377; and
that the Tribunal has not properly taken into consideration
the fact that the order dated 17.02.2007 passed by the DEO
is arbitrary and discriminatory; and that as per the rules
and regulations, the DEO is bound to pay the salary to the
petitioner; and that without any justification or reason, the
salary of the present petitioner has been withheld by the
DEO; and that the DEO has already considered the other
Co-employees and they have declared as surplus and
accordingly accommodated in other schools; and that since the
present respondent No.2 – School is closed down, in view of
the cancellation of registration, such contention has not been
accepted by the Tribunal; and that administrative discretion
should not be discriminatory and arbitrary; and that there is
no base or evidence to decline the benefit on the ground of
pendency of the prosecution; and that the Tribunal has not
properly appreciated the ratio laid down by the Hon’ble Apex
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Court in the case of Jairajbhai Jayantibhai Patel versus
Anilbhai Jayantibhai Patel reported in (2006) 3 GLH 227. He
has submitted that the present petition may be allowed.
6. Per contra, learned AGP Ms.Dhwani Tripathi for
the State Authorities has vehemently opposed this petition.
He has drawn the attention of this Court towards the
affidavit in reply filed by respondent No.1 – DEO and has
submitted that the petitioner was appointed as Junior Clerk
vide appointment order dated 20.07.1987 and vide order dated
15.06.1989, the petitioner was appointed as senior clerk and
thereafter, the petitioner was given appointment as Head
Clerk vide order dated 15.06.1991; and that the respondent
authority has not ratified the appointment of the petitioner
at the post of Senior Clerk and Head Clerk; and that the
promotion to the petitioner was never informed to the office
of the District Education Officer; and that on the receipt of
the complaint, the District Education Officer, Bhavnagar and
Junagadh undertook a combined scrutiny of the working of
the said school and in its report to the Director of Schools,
it was brought to the notice of the authorities that at around
10 relatives of the Trustees are appointed as Clerk, Principal,
Assistant Teacher and Peon; and that among which, the
petitioner is younger son of the Managing Trustee; and that
there were various charges which were subsequently proved
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and therefore, after giving opportunity of hearing, the
Commissioner of Schools passed an order dated 14.06.2004,
wherein, it came to be decided that a police complaint be
lodged against the Administrator of the said school; and that
Education Officer accordingly, at that given point of time,
filed an FIR against the petitioner and others before the
Odhav Police Station; and that the respondent authority
declared a list of surplus teachers on 16.09.2006, but, as the
present petitioner was in custody at that given point of time,
the petitioner was not to be included in the list of surplus
teacher; and that the Governing Body of the school has not
taken any departmental inquiry against the petitioner, which
is required as per the Grant in Aid Code; and that in fact,
the Governing Body of the said School decided to reinstate
the petitioner in the said school; and that such decision of
the Governing Body was not accepted by the respondent
authority and therefore, the decision not to declare the
petitioner as surplus was taken; and that the Governing
Body of a closed School reinstated the petitioner, the time
period which is shown as working by the petitioner from
31.08.2006 cannot be counted as effective service; and that
since there is a criminal case pending against the petitioner
and no inquiry or punitive action is taken against the
petitioner, the petitioner cannot be granted protection of
surplus and cannot be accommodated in any educational
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Institute of Ahmedabad. She has submitted that this petition
may be dismissed.
7. In rejoinder, learned advocate Mr.Vyas for the
petitioner has submitted that the District Education Officer
had included the petitioner in the list of Direct Salary
Scheme as per the appointment order dated 15.06.1991; and
that the petitioner was working as Head Clerk at the
relevant point of time; and that upon closure of a school, as
per the rules, an employee is required to be declared as
surplus and is required to be absorbed in any other school;
and that after being released on bail, the petitioner had
approached the Gayatri Vidyavihar for the purpose of joining
of service, but as he was not permitted to join the service,
he had made representation/s to the respondent authorities
for taking appropriate action in this regard; and that the
Management of the School has paid the amount of so-called
pecuniary loss to the Government and thus, there is no
financial loss to the Government; and that merely, because
the petitioner was in custody at the relevant point of time,
is not a ground not to extend the benefit of the policy of the
Government, which is otherwise available to an employee,
who is serving in a school, which has been closed; and that
upon the release of the petitioner on bail, he was also
required to be extended the benefit of the policy of the
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Government by declaring him as surplus and was required to
be absorbed in any other school; and that the respondent
authority has declined to declare the petitioner as surplus;
and that since the criminal prosecution was already initiated
against the petitioner, the Management of the School did not
initiate any action against the petitioner under the provisions
of the Grant in Aid Code; and that in view of the fact that
the absorbed and surplus employees, who are closely related
to the Management of the school, have given the benefit of
being declared as surplus and the benefits are granted in
their favour; and that the petitioner would have rendered
more than 34 years of service which would entitle to him to
full pension and other allowances. He has submitted that this
petition may be allowed.
8.1 I have considered the rival submissions made by
the learned advocates for the respective parties. I have
perused the documents available on record, including the
impugned order, affidavit in reply as well as affidavit in
rejoinder. From the record, it transpires that the petitioner is
the younger son of the Managing Trustee. The petitioner was
appointed as a Junior Clerk in the office of the school by
the Management on 20.07l1987. The petitioner was promoted
to the post of Senior Clerk on 15.06.1989 and also was
promoted to the post of Head Clerk on 15.06.1991. His
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appointment was by way of a regular employment after
following due procedure or by way of a back-door entry is
not coming on record. However, the way of promotion to the
petitioner itself smacks a lot.
8.2 A complaint was made by two teachers of the very
school to the Vigilance Commissioner. Pursuant to that
complaint, a raid was carried out by the sleuths of the
Education Department and submitted their report, whereby it
was found that large scale fraud is going on in the school
i.e. various appointments of the relatives of the Trustees
were made on the various posts like Clerk, Administrator,
Principal, Peon, etc., ghost students, dummy teachers and
dummy class rooms were found, obtained grant of the
Government illegally on that basis, etc.
8.3 In view of that report, the Commissioner of
Schools has passed the order under Rule 95 of the Grant-in-
Aid Code, withholding complete grant of the school as well as
initiating prosecution against the erring persons i.e. the
present petitioner and other person/s including the Managing
Trustees.
8.3 Consequently, an FIR being C.R. No.504 of 2004
came to be filed before the Odhav Police Station for the
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offences punishable under Sections 406, 409, 420, 467, 468,
470, 471 and 120-B of the Indian Penal Code. The accused
persons, including the petitioner, were arrested and released
on regular bail. Ultimately, the petitioner was remained
behind the bars for the period from 21.02.2006 to 25.07.2006.
8.4 In view of the order passed by the Commissioner
of Schools noted above, the Gujarat Secondary and Higher
Secondary Education Board (‘the Board’ for short) has
cancelled the registration of the school vide order dated
08.12.2004. Feeling aggrieved by the order of the Board as
well as order of the Commissioner of Schools, the
Management has preferred a petition being Special Civil
Application No.16742 of 2004, wherein this Court has, vide
order dated 03.01.2005, quashed the order of the Board.
However, this Court has confirmed the order of the
Commissioner of Schools on the ground of alternative
efficacious remedy of appeal available to the Management.
The Management filed an appeal before the Education
Department, wherein the Education Department has, vide
order dated 08.06.2005, made certain modifications in the
order of the Commissioner of Schools. Again, the Board has
cancelled the registration of the school vide order dated
23.03.2005. Again, the Management has challenged the same
in appeal proceedings before the Education Department,
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wherein the Education Department has, vide order dated
26.07.2005, quashed the Board’s order.
8.5 In view of the FIR, the petitioner and others
preferred an application for quashment of the said FIR being
Criminal Misc. Application No.11454 of 2004 under Section
482 of the Code of Criminal Procedure, 1973 before this
Court, which was ultimately withdrawn by them on
27.02.2006. However, the Coordinate Bench of this Court has,
vide orders dated 03.02.2006 and 07.02.2006 observed as
under.
“Order dated 03.02.2006
By filing this application under Section
482 of the Criminal Procedure Code, the
applicants, who are the trustees of Shantiniketan
Education Trust, Ahmedabad, have prayed for
quashing FIR, which is at annexureA and
registered as C.R.No.I503 of 2004 before Odhav
Police Station, Ahmedabad. Said complaint is filed
by Education Inspector, D.E.O. Office, Ahmedabad
for offences under Sections 406, 409, 420, 467,
468, 479, 471 read with Section 120B of the
Indian Penal Code on the ground that the
trustees have committed a fraud by preparing
false documents and on such false representation
grant worth Rs.38,19,921/- is obtained for the
period between 17.6.1996 to August, 2004. As perPage 18 of 33
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the allegations made in the F.I.R., salary is paid
to certain teachers even though they are not
discharging their duties. It is also alleged that
about 178 ghost students were found in
institution. It is also alleged that some of the
employees of the institution are closely related
with the trustees.
During the course of hearing, it is
submitted by learned APP that the present
applicants, who are the trustees of the institution
are absconding and they have been declared as
“absconders” by issuing appropriate declaration.
It is a matter of regret that an
institution, which has kept its name
“Shantiniketan” has indulged in fraudulent and
dishonest means in running the institution.
Inspite of the fact that this Court passed
an order dated 122006 asking the police inspector
to arrest the trustees of the institution and
produce them before this Court by issuing a
nonbailable warrant, today, MR.R.V.Nandasana,
Police Inspector, Odhav Police Station, has
informed the Court that he is not in a position
to arrest the trustees of the institution and they
are absconding and a declaration is also issued in
this behalf showing them as “absconders”.
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From the record of the case it is found
that some of the teachers were attending classes
in a drunken condition and relatives of the
trustees are employed in service of the institution.
The Commissioner of Education (who will
hereinafter be referred to as “the Commissioner”
for short) has also given a detailed report in this
behalf. It is also noticed by looking to the file
that many ghost students are enrolled only for
the purpose of taking benefit of salary grant and
large public money is squandered away in the
matter of payment of grant to the institution.
The file of the case reveals a very sorry state of
affairs where the Secretary of Education
Department has recommended payment of salary
grant in favour of such institution where even
the trustees are absconding and surprisingly till
date the Education Department does not think it
fit even to cancel the registration of such an
institution. It is difficult to appreciate as to what
type of education this institution can impart to
the innocent students, whose trustees are declared
“absconders” by issuing declaration under the
Criminal Law. When it is found that some of the
teachers of the institution are attending the
classes in a drunken condition, it is not possible
for this Court to understand as to why inspite of
aforesaid fact, the Education Department of the
State has shown a sympathetic view in favour of
such institution.
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Education Department, who is present before the
Court has submitted that he is agreeing with the
report given by the Commissioner regarding
loopholes in the educational institution, but he
states that ultimately he is required to put
appropriate noting as per the submission of the
institution and as per the record. In my view, it
is not necessary to go in detail and put any
embarrassing question to Mr.Dhaduk at this stage
in this behalf.
Mr.Pandit, District Education Officer is
also present before this Court. He submitted that
as per the noting of the Deputy Secretary,
Mr.Dhaduk, about Rs.25 Lacs are required to be
recovered from the management. He however
submitted that a sympathetic view is taken by
the Government asking the management to pay
only Rs.10 Lacs and remaining amount is to be
recovered as per the final decision of the
Commissioner. It is pointed out that till today,
Commissioner has not taken any final decision as
the applicants are not remaining present for
hearing. All these things reflects only a sorry
state of affairs as to how the Education
Department of the State is functioning. It is high
time that the things should be put in order by
keeping in mind the State Exchequer and it isPage 21 of 33
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the duty of everyone concerned to see that public
money is not wasted and squandered away.
Mr.Pandit, District Eduction Officer,
further submitted that as per last inspection
report about Rs.38 Lacs are required to be
recovered from the institution. However, he
submitted that he cannot take any action for
recovering this amount till the Commissioner
takes any final decision in this behalf. It is
difficult to understand when the trustees are
declared “absconders” by the police, how they will
appear before the Commissioner to submit their
say and when such final decision will be taken.
Considering the fact that the petitioners
(trustees) are absconding and they are declared as
“absconders”, the police inspector, who is
investigating the case is given one more
opportunity to find out the whereabouts of such
trustees and to arrest them so that such trustees
may also understand that they are not above the
law of the land. On reading of the file, it reflects
a sorry state of affairs at the hands of the
Education Department of the State. Nobody has
right to pollute the field of education and the
same is required to b kept away from all evils of
the society.
Matter is accordingly adjourned to 7th
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February, 2006 at 11 a.m. to find out whether
the police inspector is able to arrest the trustees
of the institution, who have been declared
absconders. Mr.P.Panirvel, Principal Secretary of
Education Department is directed to remain
personally present before this Court along with
Mr.Dhaduk, Deputy Secretary of Education
Department sharp at 11 O’ clock on 7th
February, 2006 to point out as to what action the
State is likely to take against such institution,
which has tried to pollute the atmosphere of
education system and whose trustees have shown
least respect to the rule of law. Looking to the
nature of allegations as well as looking to the
notings on the file, Principal Secretary of the
Education Department may place this file before
Honourable the Chief Minister in order to apprise
him about the things going on in the Education
Department so that he can take appropriate
remedial measures for the purpose of purifying
the Education Department of the State.”
Order dated 07.02.2006
Today, in response to the order of this
Court dated 3.2.2006, Principal Secretary of
Education Department, Mr.P.Panirvel is present
before the Court with other officers. He is
represented by Mr.A.D.Oza, learned Public
Prosecutor. Principal Secretary of Education
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Department pointed out to the Court that
considering the fact that trustees of the
institution are absconding and even a notification
is issued in this behalf under Criminal Procedure
Code, the State Government has taken a decision
to cancel the registration of the institution and
also decided to take appropriate steps to recover
the money, which is paid to the institution
towards the grant. Principal Secretary of
Education Department also pointed out that
appropriate steps are taken at the Government
level to purify the system of education of the
State and, therefore, a method is adopted to find
out ghost students and ghost teachers in various
institutions of the State of Gujarat.
Mr.Oza, learned Public Prosecutor
submitted that initially an order for recovery of
grant was passed, which order was challenged
before this Court by the management by filing a
Special Civil Application and in the said Special
Civil Application, the Government was asked to
hear the management and pass appropriate order
in accordance with law. Mr.Oza, also submitted
that in appeal, the Government permitted the
management to run the institution on certain
conditions.
It is required to be noted that in view of
subsequent events if the Government has decided
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to cancel the registration of the institution, it is
always open for the Government to do so in
accordance with law. It is also pointed out to the
Court that there are serious allegations which are
finding place even on the file maintained by the
State Government and in view of the fact that
the trustees are declared “absconders”, State
Government is contemplating to cancel the
registration of such institution.
Mr.Oza, learned Public Prosecutor pointed
out that in appeal without hearing the board or
even the school, the management was permitted
to run the school by the Government. If that be
so, it is still a very sorry state of affair and now
it is hoped that the State will put its house in
order by passing appropriate order in accordance
with law and if any appeal is pending, the same
may also be disposed of in accordance with law.
It is submitted by learned Public
Prosecutor, an amount of Rs.38 Lacs is required
to be recovered from the institution. In my view,
the Government should take appropriate steps in
order to recover public money as expeditiously as
possible. As assured by the Principal Secretary of
Education Department, it is hoped that now steps
will be taken for smooth administration of the
Education Department of the State.
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Since the Principal Secretary has stated
that steps are likely to be taken in this matter,
now it is not necessary for the Principal
Secretary, Education Department and other
officers of the Government departments to remain
present before this Court, except the investigating
officer.
Investigating office has submitted that he
is still trying to find out the applicants and he
may be given some time.
S.O. to 10th February, 2006.”
8.6 In view of the observations made by the
Coordinate Bench of this Court, the Board has again
cancelled the registration of the school vide order dated
24.02.2006.
9.1 The question before this Court would be that the
order of cancelling the registration of the school as well as
not to declare the petitioner as surplus, under the above
chequered history, is valid or not.
9.2 With regard to the issue of cancellation of registration
of the school is concerned, the report submitted by the
sleuths of Education Department by raiding the school
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premises is relevant. In the report of the said team, it is
categorically stated that there was a large scale fraud going
on in the school by appointing near relatives in the school on
the posts of Clerk, Administrator, Principal, Peon, etc. The
petitioner is the best example for it. The petitioner is the
younger son of the Trustee. He was appointed as a Clerk
and thereafter, within short span of two-two years, he got
promotion to the post of Senior Clerk and Head Clerk,
respectively, which is a matter for record and undisputed
fact. Further, there was ghost students, dummy class rooms
and dummy students in the school. Further, the Management
was taking government grant under the guise of these illegal
activities for many years. Even on approaching this Court by
the Management, this Court had not entertained the petition
at the relevant point of time. In appeal proceedings also, the
Education Department has observed many things against the
Management and the petitioner and cancelled the registration
of the school. Under the circumstances, this Court finds that
the action of cancelling the registration of the school by the
authority is just and proper and no interference need to be
warranted by this Court.
9.3 With regard to the question of declaring the
petitioner as surplus in view of the cancellation of
registration of the school is concerned, it is noted that
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consequently, the District Education Officer has, vide order
dated 11.03.2006, instructed the employees of the closed
school to mark their presence temporarily in Gayatri
Vidyavihar, Khodiyarnagar, Odhav, Ahmedabad City in view
of the surplus scheme evolved by the State Government
under such situation. With regard to the petitioner is
concerned, the Tribunal has observed in paragraphs 7 and 8
of its judgment, which are as under.
“7. In order to appreciate the controversy in proper
perspective, it is apt to notice the surplus scheme
evolved by the State Government, which is briefly
narrated as under :
The secondary education in the state of Gujarat is
regulated by the Gujarat Secondary Education Act
1972 (hereinafter to be referred to as “Act” for
brevity). Gujarat Secondary Education Regulations 1974
(hereinafter to be referred to as “Regulations” for
brevity) and grant-in-aid Code rules. U/s.31 of the Act
the registration of the school with the Board is a
condition precedent for running the school. Under the
provisions of the Act, Regulations and grant-in-aid
Code, if any such school is found to be mismanaging
its affairs or is found to be violating the provisions of
the Act, Regulations or grant-in-aid Code and/or
committing any illegality, it is open for the Gujarat
Secondary and Higher Secondary Education Board (toPage 28 of 33
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be referred as “Board” hereinafter for brevity) to
cancel the registration of the school. After the Board
cancels the registration of the school the right of the
employees w/r.33 is to get appropriate compensation
mentioned therein. Meaning thereby once the school is
closed the employees have to face termination and are
only entitled to the compensation as provided u/r.33.
However, the state of Gujarat has in the interest of
education and with a laudable object to retain good
people in the field of education evolved the scheme of
surplus. Under this scheme which is to be found in
the G.R.s issued time to time, due to closure of a
school or reduction of classes, an employee gets
protection to his service tenure if he fulfills the
conditions stipulated in the guidelines. Meaning
thereby even if the school is closed or the classes are
reduced rendering the employee without work then
also under the scheme of the govt. he need not face
termination but the govt. gives him protection of
surplus by protecting his all service conditions intact.
Such an employee is declared surplus by D.E.O.’s
order and then he is absorbed in any other aided
school. It, thus, becomes clear that the object of the
govt. in extending the benefit of surplus is to retain
good talents in the field of education and which is
clearly in the interest of education of students in the
state. This scheme is not flowing from any statutory
provision. From the facts noticed above, it is quite
clear that due to the closure of the respdt. school the
question of rehabilitation of the employees arose. ThePage 29 of 33
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D.E.O. has passed orders granting protection of
surplus to as many as 33 employees except the 3
employees out of which two are before this Tribunal.
The D.E.O. has declined to give the benefit of surplus
to these employees on the ground that these
employees happened to be the relatives of the trustees
and not only that but they were found to be involved
in the fraud played by the management against the
state govt. defrauding it to the tune of lakhs of
rupees. The D.E.O. has also noted in his order that
the prosecution against these two employees is
pending. It is also clearly brought on record that the
school has got the sanction of more classes and more
employees from the state govt. by fraudulently showing
the inflated strength of pupils. Meaning thereby the
school has shown 178 ghost students who were not
there at all. It is pertinent to note at this stage that
the strength of classes and the strength of employees
depend upon the strength of pupils. In view of these
facts, the D.E.O. has felt that the applicants cannot
be given the benefit of govt. policy by declaring them
surplus. In this context, the arguments advanced on
behalf of the applicants about the decision of the
D.E.O. being arbitrary and illegal does not commend
to me.
8. It is true that as of today there is only
allegation against the applicants about their
involvement in the fraud. The D.E.O. has declined the
benefit to them on the basis of pendency ofPage 30 of 33
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prosecution. Having regard to the very object of the
scheme of surplus and considering the fact that the
applicants are not only the relatives of the trustees
but were also the parties to the fraud, I am not
persuaded to accept the submission of L.A. for
applicants. This is the case of exercising the
administrative discretion by the D.E.O. Having regard
to the facts and Circumstances of the case and in
view of the reason given by the D.E.O., it cannot be
said that the discretion exercised by the D.E.O. is
either illogical or suffers from procedural impropriety.
Admittedly, before rendering the decision the D.E.O.
has given audience to the applicants and he has also
given reasons in support of his decision. As many as
33 employees of the school even though many of them
happened to be the relatives of the trustees have been
given the benefit of surplus as they were not found
involved in the seam. I do not find any element of
arbitrariness or unreasonableness in the decision of
the DEO. Having regard to the object of the govt.
policy of surplus, it has to be noted that the said
policy is to retain good people in the field of
education and not for the persons like the applicants
who have allegedly supported the management in
showing the inflated strength of students and
defrauding the govt. to the tune of lakhs of rupees. It
may be noted that under the grant-in-aid code rules
one class is available to the school for 50 students
and the ratio of teachers provided per class is 1.5.
The allegation against the management is that it has
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shown 178 ghost students in the school. It, therefore,
becomes clear that if the allegation ‘is ultimately
proved to be right then the school has got the
sanction of more than 3 classes illegally. Against 3
classes about 5 teaches were illegally appointed and
similarly the non-teaching staff was appointed. All
these aspects are required to be inquired into before
granting protection to the employees and, therefore, I
do not find any arbitrariness or illegality in the
decision of the D.E.O.”
9.4 Further, the representations made by the petitioner
were replied by the respondent authorities vide
communication dated 20.12.2006, whereby it was informed to
the petitioner that as he was in custody during the
publishing of the surplus teachers list, he could not be
declared as surplus. Further, it is a matter of record that
the petitioner was behind the bars for the period from
26.02.2006 to 25.07.2006. As per the Grant-in-Aid Code 69.7
and 69.10, no inquiry was undertaken against the petitioner
and no punitive action was taken and the Governing Body of
the said school decided to reinstate the petitioner in said
school. The said decision of the Governing Body was not
accepted by the respondent authorities. Further, as the
Governing Body of a closed school reinstated the petitioner,
the time period which is shown as working by the petitioner
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from 31.08.2006 cannot be counted as effective service and
therefore, the decision not to declare the petitioner as surplus
was taken by the authorities, which is legal and proper and
no interference is required by this Court.
9.5 Under the circumstances, the petitioner has
criminal history as well as no inquiry or punitive action is
taken against the petitioner, he cannot be granted protection
of surplus and cannot be accommodated in any educational
institute. Further, the scheme of surplus does not flow from
any statutory provision. It is the scheme evolved by the
State Government with a laudable object to ensure that good
people are retained in the field of education and do not run
away from the field of education due to frustration of
retrenchment owing to the closure of schools or reduction of
classes.
10. In view of above, this Court finds that the present
petition needs to be dismissed and is dismissed accordingly.
Rule is discharged. No order as to costs. Interim relief, if
any, stands vacated.
(SANDEEP N. BHATT,J)
M.H. DAVE
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