BHARGAVA, J. - (1.) THE petitioner in response to advertisement (Annexure-2) applied for the post of Assistant Instructor in the Food Craft Institute, Rajasthan, Jaipur, hereinafter referred to as the 'institute'. THE petitioner was selected as Assistant Instructor in Hotel Reception and Book Keeping in the Institute, vide order dated 4. 12. 1976 (Sch. A) to the writ petition. THE petitioner received a memorandum dated 20th September, 1978 (Schedule-B) alongwith a charge-sheet, to which he submitted a detailed reply, and thereafter, an enquiry was conducted under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the 'rules of 1958') as adopted by the Institute. After a show-cause notice, the petitioner was served with an order dated 28. 2. 1983 (Annexure-5 ). THE petitioner challenged the said order in the court of Additional Munsif, under the impression that no appeal lies against the order of dismissal and therefore, lateron, he preferred an appeal against the order of dismissal to the Chairman but the same was not decided even for more than 4-1/2 years and thereafter, the petitioner had to file Writ Petition No. 1826/1983 and this Court allowed the same vide its order dt. 28. 9. 83 directing that the appeal should be decided within one month. Inspite of orders of this Court, the appeal was not decided within one month and the petitioner had to file a contempt petition in this Court. Show cause notice was issued and during the pendency of the contempt petition, the petitioner received a notice for dismissal of the appeal. Ultimately, the appeal was dismissed by order dated 22. 11. 83. But the petitioner was not informed about it. He was informed vide letter dated 12. 6. 84. It is against this order that the present writ petition has been filed by the petitioner on 7. 8. 1984. Notices were issued and reply has been filed by the non petitioners.
(2.) WE have heard learned counsel for the parties and have also perused the record of the case. The Institute framed service rules, known as Food Craft Institute Service Rules, 1977, (hereinafter referred to as the 'rules of 1977' ). According to Rule 28 of the Rules of 1977, matters which are not covered and governed by these Rules, will be governed by the rules applicable to the Rajasthan Government employees and hence, the Rules of 1958 are applicable to the employees working in the Institute. It is not disputed that the Institute is a 'state' under Article 12 of the Constitution of India for the purpose of Part-Ill of the Constitution. The case of the Institute is that the petitioner submitted a false certifi-cate alongwith his application in pursuance of advertisement (Annexure-2) and he was not qualified in terms of the advertisement. Therefore, the order of his dismissal from service was justified. The petitioner has also filed a rejoinder to the reply of writ petition filed on behalf of the Institute. Alongwith the rejoinder, he has submitted the photostat copy of the original mark-sheet issued by the Government of Haryana, Department of Tourism, State Institute of Catering, Panipat, showing that the petitioner had passed the one yeas course of Diploma in Hotel Management, Catering and Nutrition, and the same was issued on 28. 3. 88. Previous to this, the petitioner had enclosed with his application a certificate in original (Annexure-1), wherein it was mentioned that the petitioner had passed the final examination of two years diploma course in Hotel Management Catering and Nutrition held in July/august, 1975 securing 713 plus 5 marks out of 1400 marks. In pursuance of the advertisement, the minimum qualification was mentioned as under: - "the candidate should be Higher Secondary with a certificate in the respective trade with two years' experience in the Hotel Industry or in a Catering Institute". The petitioner, in his application, mentioned his educational qualification being B. Sc. and having appeared in M. A. (Final) and regarding technical qualification, it was mentioned-One year Diploma in Hotel and Tourism Management but alongwith the reply, the non petitioners showed us the original application wherein 'one' was deleted and 'two' has been mentioned for which the petitioner has submitted clarification that since in the certificate issued by the Principal, State Institute of Catering, Panipat (Annexure-1), dated 22. 11. 1976, it had been mentioned 2 years' diploma, therefore, the petitioner had also deleted 'one' in his original application and mentioned 'two' in place of one. This has been further explained by the fact that originally, the petitioner had joined one year diploma and the petitioner had failed in the annual examination held in the year 1974. Meanwhile, this course was converted into 2 years' course, Diploma in Hotel Management and the petitioner was allowed to appear in the examination in the year 1975, for two years' diploma course as he had failed in 1974 and he was declared successful. Therefore, by inadvertence, the Principal had issued the provisional certificate (Annexure-1) on 22. 11. 76 that the petitioner had passed the final examination of 2 years' diploma course and mis-guided by this provisional certificate, the petitioner had also corrected his original application form submitted to the Institute in pursuance of the advertisement. The petitioner had explained all this in his explanation and also at the time of appeal. The petitioner had also submitted the provisional certificate (Annexure-9) issued on 17. 10. 79 showing that he had passed diploma course of Hotel Management, Catering and Nutrition (one year's course) and had obtained 713 + 5 marks out of 1400 marks but inspite of this explanation, the petitioner was dismissed from service. Since in the advertisement, the only minimum qualification prescribed was a certificate in the respective Trade, it did not mention whether it should be one year's course or 2 years' course and therefore, there was no mensrea on the part of the petitioner in having mentioned '2' in his application, though it was obvious from the original application which was shown to us that he had mentioned one year diploma wherein one was cut and two was mentioned being mis-guided by the certificate issued by the Principal, on 22. 11. 76 (Annexure-1) which was enclosed alongwith the application. It is not the case of the non petitioner that the petitioner was selected and inducted in service on the basis of the fact that he had passed 2 years' diploma.
(3.) WE are therefore of the view that the petitioner's dismissal from service on the above count is not proper and therefore, his dismissal order deserves to be quashed. In the result, this writ petition is allowed, the order dated 28. 2. 79 (Anx. 5) and order dt. 22. 11. 83 (Annx. 7) are hereby quashed. The petitioner shall be deemed to be in continuous of service of the Institute and the intervening period shall be counted for his future promotion, seniority, pension etc. However, since the petitioner has not worked during this period and had to approach this Court thrice, we are of the opinion that the petitioner should be paid l/4th of the emoluments which he would have received in regular course but for his dismissal from service. The petitioner is also entitled to costs of this petition, which we assess at Rs. 1100/ -. .;