Gujarat High Court
Ranjitsinh vs Chief on 8 June, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
SCA/1071/2012 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1071 of 2012 ========================================================= RANJITSINH SHANTILAL DAMOR - Petitioner(s) Versus CHIEF FACTORY MANAGER - Respondent(s) ========================================================= Appearance : MR MA KHARADI for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR KM PARIKH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 03/09/2012 ORAL ORDER
1. The petitioner has prayed for below mentioned relief/s:-
"10 (A)..........
(B) Allow present petition by issuing a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction directing the respondent to consider the Date of Birth mentioned in the Birth Certificate issued under the provisions of the Birth and Death Registration Act and thereby selection of the petitioner, being vocational trainee under the Apprenticeship Act, may be maintained, in the interest of justice.
(C)............
(D)...........
(E)............"
2. Mr. Kharadi, learned advocate has appeared for the petitioner and Mr. Parikh, learned advocate has appeared for the respondent.
3. It appears that somewhere in June 2011 the respondent had issued advertisement inviting application for persons who were interested in Apprentices Trade under the provisions of Apprentices Act 1961 (hereinafter referred to as the "Act"). It appears that the applicant herein submitted his application in response to the said advertisement.
3.1 According to the advertisement the applications were invited for different categories / trades mentioned in the advertisement dated 8-6-2011 which included Instrument Mechanic Trade for which the petitioner had submitted his application.
3.2 The said advertisement prescribed eligibility criteria which included age limit as well. According to the advertisement the age of the applicant should not be more than 24 years on the date of application. The petitioner being member of Scheduled Caste was entitled for relaxation up to maximum five years as per terms and conditions of the advertisement. As per the advertisement duration of the Apprentice Training for the Instrument Mechanic Trade is of 12 months.
4. So far as the present petitioner's application is concerned, upon scrutiny of the application the competent authority noticed that though the petitioner had mentioned 28.7.1982 as his date of birth, the copy of the school leaving certificate (which he had annexed to the petition) reflected that the petitioner's birth date is "28.7.1981".
4.1 The competent authority noticed that at different stages petitioner had relied on the birth date mentioned in the school leaving certificate.
4.2 According to the respondent authority for the purpose of considering eligibility of birth date the school leaving certificate had to be taken into consideration. Therefore, concerned competent authority proceeded on the basis of the date of birth reflected from the petitioner's school leaving certificate.
4.3 Accordingly the petitioner's application was considered "age barred" and therefore his candidature was not accepted. Aggrieved by the said decision of the respondent authority the petitioner preferred present petition.
5. Mr. Kharadi, learned advocate for the petitioner has submitted that the petitioner has mentioned his date of birth in the application on the basis of the date of birth recorded in petitioner's birth certificate and that therefore competent authority committed error in not taking into account the said date of birth mentioned in the birth certificate and in relying on the birth date mentioned in the school leaving certificate.
5.1 He submitted that there is error in the date mentioned in the school leaving certificate and petitioner's correct date of birth is 28.7.1982.
5.2 Mr. Kharadi, learned advocate for the petitioner has further submitted that in light of the date of petitioner's birth mentioned in the Birth Certificate, the decision of the respondent authority treating petitioner's application as age-barred is incorrect and unjust.
6. Mr. Parikh, learned advocate for the respondent corporation has relied on the reply affidavit filed by the respondent and reiterated details mentioned in the reply affidavit.
6.1 He in particular referred to and relied upon the details mentioned in paragraph Nos.7, 8.1 to 10 and 12 which read thus:-
"7.
In reply to para-3 of the petition, I humbly submit that the factual aspects narrated by the petitioner are not known to the respondent. The petitioner himself got registered his date of birth in School Leaving Certificate as 27/07/1981 as well as in I.T.I. Certificate - Provisional National Trade Certificate issued by the Member Secretary, Gujarat Council of Vocational Training and Employment and Training, Gandhinagar as 27/07/1981. Thus, the date of birth shown by petitioner as per Birth Certificate is 28/07/1982, which came to be changed by petitioner from 27/07/1981 to 28/07/1982 and therefore, petitioner throughout had shown his correct date of birth as 27/07/1981 and represented that his correct date of birth is 27/07/1981 and got registered his name with the Employment Exchange also and obtained the Registration Card issued by Employment Officer of the Employment Exchange, Dahod showing date of birth of the petitioner as 27/07/1981 and thus, petitioner represented that his date of birth is 27/07/1981 and therefore, averements made in this para by the petitioner to justify his correct date of birth as 28/07/1982 cannot be acceptable to the respondent. The entire story narrated in this para by the respondent is nothing but a got up story, so as to gain sympathy from this Hon'ble Court for getting his selection as apprentice with the respondent Railway. Such unhealthy approach on the part of the petitioner should be deprecated by this Hon'ble Court.
7.1...........
8..............
8.1 I submit that petitioner in his application for engagement as Trade Apprentice had intentionally not enclosed the copy of School Leaving Certificate as mentioned in the Notification dated 08/06/2011 and therefore, petitioner had suppressed his correct date of birth before the respondent authority and thereafter, approached this Hon'ble Court showing his innocence to get easy entry in the respondent railway. Copy of the Employment Notification dated 08/06/2011 issued by Chief Workshop Manager, Dahod is annexed hereto and marked as ANNEXURE-R/1 to this reply. I crave leave oft his Hon'ble Court to refer to and read over condition No.5(5) of the said Notification in support of the averments made by me in this para. I further submit that petitioner had submitted application in the prescribed form dated 23/06/2011 and also enclosed necessary annexures thereto. Copy of the application form with annexures duly submitted by the petitioner to the respondent is annexed hereto as ANNEXURE-R/2 (Colly.) to this reply.
8.2 I further submit that petitioner had enclosed Birth Certificate dated 22/07/2010 issued by Sub Registrar (Birth-Death) Nagar Seva Sadan, Dahod shows his date of birth as 28/07/1982. It is pertinent to note that as per stipulations and mandatory conditions of the Notification at Annexure-R/1, petitioner was duty bound to enclose copy of School Leaving Certificate for verification of the age aspect of the petitioner as apprentice. By not doing so, petitioner had suppressed the material facts before the authority.
8.3 I further submit that the Competent Authority prepared panel of the eligible candidates for the Year 2011-12 for apprentice and name of the petitioner was shown in the said panel on the strength of birth certificate dated 22/07/2010 as produced by petitioner along with his application for apprentice, instead of producing the School Leaving Certificate before the authority and the same was also placed on the notice board of the office of the respondent at Dahod.
8.4 It is pertinent to note that petitioner had represented and declared his date of birth as 27/07/1981 before the Director of Employment Exchange as true and correct. On the said date, petitioner was having original birth certificate also and the same was not furnished to the Direct of Employment and Training and Employment Exchange for reasons best know to him. Thus, to obtain ITI certificate and Employment Registration Car from the authority, petitioner had shown his correct date of birth as 27/07/1981 as shown in the School Leaving Certificate and for making application as trade apprentice with the respondent Railway, petitioner had shown his date of birth as 28/07/1982 based on birth certificate. Thus, petitioner is playing approbate and reprobate with the respondent Railway for the reasons best know to him.
8.5 I further submit that on close scrutiny of Annexure-B and Annexure-C, it becomes crystal clear that place of birth shown in Annexure-B is "Cottage Hospital, Dahod", while place of birth shown at Annexure-C is "Village Katwara", Dahod and thus, both the annexures are not creating confidence about it contents and therefore also, both the annexures be not accepted by the Hon'ble Court as gospel truth as canvassed by the petitioner. It becomes crystal clear that date of birth and place of birth of the petitioner differs in both the above certificates produced at annexure-B and C to this petition.
8.6 It is pertinent to note that copy of Gazette Publication produced by the petitioner along with his application to the respondent shows that there is change of birth date and not birth place and therefore, entire petition is devoid of any merits.
8.7 I further submit that at the time of issuance of Medical Memo by the respondent, petitioner produced copy of School Leaving Certificate dated 08/07/2009 issued by the Principal, Post Basic School, Dahod, wherein, date of birth is shown as 27/07/1981 and place of birth is shown as Katwara, Dahod. Thus, petitioner had shown different date of birth and place of birth before the authority in different manner.
9. In reply to para 3.2 of the petition, I submit that respondent acted on the strength of application dated 23/06/2011 submitted by the petitioner along with annexures annexed thereto and therefore, name of the petitioner was included in the panel list dated 01/12/2011 and based on the same, call letter at Annexure-G was issued to the petitioner.
10. In reply to para-4 of the petition, I deny that petitioner had complied with all the conditions of notification at Annexure -R/1 as alleged in this para. Petitioner was fully aware on 08/07/2009 that he had School Leaving Certificate showing his date of birth as 27/07/1981 and place of birth at Katwara, Dahod and while filing application on 23/06/2011 with the respondent, the same was not produced, furnished, filed and annexed by the petitioner with his application for the reasons best known to him. Thus, action of the respondent to remove the name of the petitioner from the panel list on the ground of over age is justified, legal and correct. I deny that action of the respondent is illegal, arbitrary and unconstitutional as averred by the petitioner. It is the petitioner's conduct, behaviour, presentation and approach, which dragged him before this Hon'ble Court by way of petition and not the respondent's action dragged him before the Hon'ble Court as alleged. Petitioner is not entitled to approbate and reprobate before the respondent authority as well a before this Hon'ble Court. Such reasons cannot become the ground to invoke extra ordinary and discretionary writs jurisdiction under Article 226 of the Constitution of India.
11.........
12. In reply to para-5 of the petition, I submit that the averments made by the petitioner in this para are devoid of any merits. The petitioner tried to obtain public employment on the basis of the date of birth shown in the petition. While on the other hand, petitioner's date of birth as per School Leaving Certificate is 27/07/1981 and if, it is considered as date of birth as per requirement of the notification at Annexure-R/1, petitioner became over age for engagement as trade apprentice. I further submit that explanation offered by the petitioner about the prevalence of birth certificate over the school leaving certificate cannot be gone into in present proceedings. Since, the petitioner alike other applicants are all duty bound to abide by stipulations and terms and conditions of employment notification at Annexure-R/1, no relaxation can be granted to the petitioner while giving equal treatment to all equal situated similarly and equally. Then also, petitioner cannot expect different treatment to consider his application as trade apprentice on the various grounds and reasons mentioned in the petition. This will cause serious prejudice to all other similarly situated applicants as well as other persons, who are in queue for public employment. Hence the attempt of the petitioner to justify his case to accept the date of birth as per birth certificate cannot be endorsed and accepted by this Hon'ble Court in the above referred background. Rests of the averments are devoid of any merits."
7. It has emerged from the submission of the learned advocate for the petitioner that the petitioner had submitted his application for being engaged as apprentice in the trade of instrument mechanic.
7.1 It has also emerged from the record that the duration for apprentices trade for the said trade is only twelve months.
7.2 From the date on which apprenticeship period is commenced, almost 9 months have expired and that therefore even if the petitioner's contention that instead of details mentioned in the school leaving certificate, the authority ought to have considered the details mentioned in the birth certificate was to be taken into consideration and petition were to be admitted for final hearing, then also it would be it would be difficult to grant any effective relief to the petitioner because duration of the apprentice training period for the trade of instrument mechanic would get over and that therefore any direction to engage the petitioner in pursuance of the said advertisement, which was issued on 8.6.2011 and in response to which the petitioner had submitted his application, cannot be passed.
7.3 As period of almost 9 months since the commencement of the training for the said trade has already expired the request of the petitioner to consider his case for being engaged as apprentices for the trade of instrument mechanic for 2011 and 2012 cannot be now considered.
7.4 In response to the advertisement which may be issued for subsequent period / next year the petitioner may if by that time he has not crossed maximum age limit prescribed for apprentice training in trade of instrument mechanic, make fresh application.
7.5 However for the reason that any effective relief cannot be granted in this petition, the petition is not entertained. Ordinarily the Court would not admit and entertain a petition wherein any effective relief cannot be granted.
7.6 Thus, for the reasons that by the time the petitioner approached this Court, substantial part of apprenticeship training for the said trade has already expired, the petition is not entertained without entering into controversy as to whether respondent authority should have considered the date of birth reflected in birth certificate instead of school leaving certificate.
With the aforesaid clarification the petition stands disposed of. Notice is discharged.
(K.M.THAKER,J.) Suresh*