Gujarat High Court
Prakasdan Rameshdan Gadhvi vs State Of Gujarat & 3 on 16 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10492/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10492 of 2015
[On note for speaking to minutes of order dated 02/07/2015 in
C/SCA/10492/2015 ]
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PRAKASDAN RAMESHDAN GADHVI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
BELABEN M NAYAK, ADVOCATE for the Petitioner(s) No. 1
MR BHUNESH C RUPERA, ADVOCATE for the Petitioner(s) No. 1
MR.SWAPNESHWAR GAUTAM, AGP ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/07/2015
ORAL ORDER
By this note in the form of a speaking to minutes, it has been pointed out that in paras 11 and 12 of the order passed by this Court dated 02.07.2015 in the Special Civil Application No.10492 of 2015, the date of issue of the non-creamy layer certificate in Parishist "K" has been shown as 24.05.2015, whereas the correct date is 24.06.2015.
The Registry shall effect the necessary correction and issue a fresh writ of the order. The note is accordingly disposed of.
(J.B.PARDIWALA, J.) dharmendra Page 1 of 1 1 of 11 C/SCA/10492/2015 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10492 of 2015 =============================================== PRAKASDAN RAMESHDAN GADHVI....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) =============================================== Appearance:
BELABEN M NAYAK, ADVOCATE for the Petitioner(s) No. 1 MR BHUNESH C RUPERA, ADVOCATE for the Petitioner(s) No. 1 MR.SWAPNESHWAR GAUTAM, AGP SERVED TO GP/PP for the Respondent No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4 =============================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 02/07/2015 ORAL ORDER
1. Draft amendment is allowed. The petition be amended accordingly.
2. Rule returnable forthwith. Mr.Swapneshwar Gautam, the learned AGP, waives service of notice of rule for and on behalf of the respondent.
3. By this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"7.(A) Your Lordship may be pleased to admit and allow this petition;
(B) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents Authorities to consider the candidature of the petitioner for the concerned post;
(C) Your Lordship may be pleased to direct the respondent authority to declare the non-creamy layer certificate (Annexure A) furnished upon in English, produced by the petitioner is valid and just in lieu of Parishist "K";Page 1 of 10
2 of 11 C/SCA/10492/2015 ORDER (D) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to direct the respondents Authorities to stay the further procedure of recruitment as the procedure will be completed by 07.07.2015 by the respondents authority;
(E) Such further and other orders be passed, directions be given and reliefs be granted as this Hon'ble Court may deem fit and proper."
4. The facts giving rise to this writ application may be summarized as under:-
4.1. On 16.09.2014, an advertisement was issued for the post of Clerk, Class III (Non Secretarial Service) by the respondent authority on their official website. The advertisement was issued for filling up of 2444 vacant posts in different departments of the State Government. The interested candidates were asked to apply online.
In pursuance to the said advertisement, the petitioner applied online for the post of Clerk, Class III on 26.09.2014.
4.2. On 02.12.2014, the respondent authority issued online entry pass (hall ticket) to the petitioner for the written examination, which was scheduled to be held 21.12.2014. The petitioner was declared as one of the successful candidates in the written examination and was found eligible for the Computer Proficiency Test, which was scheduled to be held 22.04.2015. On 05.06.2015, the respondent No.3 issued a letter to the petitioner for verification of the documents. The verification of the documents was fixed on 26.06.2015. The petitioner remained present along with the necessary documents before the respondent authority. According to the instructions as contained in letter dated 05.06.2015 relating to the documents, the petitioner had to submit a non-creamy layer certificate in Gujarati (Parishist "K") at the time of the verification of the documents. The petitioner had with him a non-creamy layer certificate in English issued by the Mamlatdar, Ahmedabad City (East). The respondent refused to accept such certificate on the ground that the same was Page 2 of 10 3 of 11 C/SCA/10492/2015 ORDER not in Gujarati (Parishist "K"). On account of one such document, the petitioner was disqualified.
4.3. Being dissatisfied, the petitioner has come up with the present petition.
5. Mr.Rupera, the learned advocate for the petitioner submitted that his client who was otherwise selected on merits is sought to be denied appointment only on the ground that he failed to produce the non-creamy layer certificate in a particular language as stated in the advertisement or in the format according to the Government resolution. He submitted that the petitioner having cleared all the tests but failed to produce the non-creamy layer certificate in Gujarati language should have been given some time to produce the same in Gujarati language.
6. On the other hand, this petition has been vehemently opposed by Mr.Gautam, the learned AGP appearing for the respondent-State. He has relied on the affidavit-in-reply filed on behalf of the respondent Nos.2, 3, and 4. He mainly relied on the averments made in Para Nos. 8 and 9 of the reply as under:
"8. I respectfully say and submit that by way of this petition, the petitioner has contended that the petitioner has submitted certificate of Mamlatdar in prescribe format of Parishist "K" in Gujarati by relying on the Annexure-H at page no.32 to the memo of the petition. The answering respondent respectfully submit that as per the advertisement, prescribed date has been mentioned which requires the certificate should issued by the Mamlatdar within specific period of 01.04.2014 to 08.10.2014. It is further respectfully submitted that the certificate submitted by the petitioner in Gujarati is dated 23.07.2013 and the said certificate is issued prior dated to the cut off dates. Therefore, it does not fulfill the condition and the cut off dates is mentioned in the advertisement. Therefore, the said certificate cannot be considered as a valid certificate for considering the candidature of the petitioner.
9. I respectfully say and submit that as per the advertisement, it is crystal clear that the Non-Creamy layer Page 3 of 10 4 of 11 C/SCA/10492/2015 ORDER Certificate should be issued within 01.04.2014 to 08.10.2014 in Gujarati at this juncture it is pertinent to clarify herein that the main reason behind putting such time duration is that the period between 01.04.2013 to 31.03.2014 is financial year and too accurately measure the strength of the person belong to other backward category claiming the benefit of Non-Creamy layer specific time period has been prescribe in the advertisement which commence from 01.04.2014 till 08.10.2014 i.e. last date of application."
7. Mr.Gautam, the learned AGP submitted that when a particular criteria is fixed in the advertisement, it is expected of the candidate to fulfill all such criteria before seeking appointment. He submitted that in the present case also the petitioner was expected to produce the non-creamy layer certificate in a particular format and he failed to produce the same. Mr.Gautam, the learned AGP submitted that it is not the stance of the respondent that the certificate which was produced was in English or that it was a false certificate. He submitted that the contents of such certificate are also not in dispute, but it is only the format that matters.
8. Mr.Gautam, the learned AGP pointed out that as the certificate produced by the petitioner is in English, it would be helpful to him in securing employment with the Government of India but not in the State Government. He pointed out that by virtue of the Government Resolution of the year 1996, there is a prescribed format for such certificate. He prays that the petition be rejected.
9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the relief prayed for in this writ petition.
10. I need not assign my own reasons in this regard. It appears that the issue is squarely covered by two decisions of this Court.
Page 4 of 105 of 11 C/SCA/10492/2015 ORDER 10.1. In the case of Hiteshkumar Babubhai Prajapati v. State of Gujarat in Special Civil Application No.13501 of 2014 decided on 19.11.2014, wherein the learned single judge made the following observations:
"06. The Recruitment Rules, which have not been produced, perhaps would provide only eligibility and the conditions and the certificate, which has been referred, has reference to the aspect of actual verification for the class or category to claim benefit of reservation as OBC. Therefore, it is a matter of only for the purpose of verification and does not refer to qualification or entitlement. Therefore, if the person is selected and otherwise found suitable, he cannot be denied the appointment only on the ground that he has failed to produce such certificate in a particular language as stated in the advertisement or in the formate as per Resolution dated 06.02.1996. It is required to be mentioned that if the person is thrown out on such a technical ground, it would amount to denying such opportunity inspite such policy. Therefore at the most, the petitioner could have been asked to produce such certificate in the proper format as required within stipulated period and opportunity ought to have been given so that it takes care of any apprehension by the authority with regard to the creamy layer. Thus, it could have been verified whether the petitioner belongs to creamy layer or not on the basis of the certificate and the appointment could have been issued only after such verification. But opportunity of producing such certificate in proper format could not have been denied and he could not have been rejected only on this ground. Therefore, the rejection of the claim of the petitioner only on the ground that as required under the advertisement, he has failed to produce the creamy layer certificate in a particular formate in a particular language cannot be approved. It is required to be mentioned that many candidates may apply for the jobs in the State Government as well as in the Central Government or the Government corporation. In some of the corporation or the employment in the Union Government, they would require them to submit certificate in English language. Therefore, it is too technical aspect to reject such claim without providing the opportunity of producing the certificate as required.
07. Therefore, the petitioner is permitted to produce creamy layer certificate as per the formate and language as expected as per Government Resolution dated 06.02.1996 within a period of three weeks, which shall be considered by the respondent no.2 and on being satisfied about the aspect of creamy layer, consequence may follow including the appointment to the post of Compounder.
08. With the above observation and direction, the present petition stands disposed of accordingly."Page 5 of 10
6 of 11 C/SCA/10492/2015 ORDER 10.2. In the case of Mori Uttamkumar Raisinhbhai v. Gujarat Public Service Commission vide Letters Patent Appeal No.732 of 2013 with Civil Application No.5624 of 2013 decided on 27.03.2014. It appears that issue before the Division Bench was almost identical. The relevant observations made by the Division Bench are quoted as under:-
"8. The short question which arises for consideration for this Court is that in the competitive examination, non-creamy layer certificate was required to be produced by the appellant-ori. Petitioner for the financial year beginning from 1.4.2009 to 31.3.2010 and the last date of depositing the form was 31.3.2010. If the respondents themselves have extended the date for depositing the forms to 6.4.2010 whether the date for obtaining the non-creamy layer certificate would also be extended or the date would remains the same is immaterial or has bearing as certificate was to produced later. It is not disputed that the petitioner has applied and he was issued the non-creamy layer certificate on 5.4.2010 that was after the last date of submission of the form as per the earlier advertisement and he has deposited the form online on 6.4.2010. Therefore, it is absolutely clear that the petitioner has applied for non- creamy layer certificate after 31.3.2010. Though the appellant-ori. Petitioner has stated in the writ petition that he has applied for issuance of non-creamy layer certificate on 25.3.2010, but there is no material to show this fact on record. In our opinion, once the last date for submission of form was 31.3.2010 and the non- creamy layer certificate was deposited for the period between 1.4.2009 to 31.3.2010 and the respondents have extended the date for submission of the form to 6.4.2010, the requirement of depositing the non-creamy layer certificate for the financial year from 1.4.2009 to 31.3.2010 has to be deemed to be extended up to 6.4.2010. It is also not disputed that the petitioner has received the non-creamy layer certificate on 5.4.2010 and has deposited the same on-line along with the form before the date specified in the advertisement.
9. The orders debarring the appellant-petitioner from appearing in the main examination will have to be reviewed as annunciated by the court as to what orders on administrative side would be the subject of the judicial review. In this case, the validity of the order which has been challenged by the appellant- petitioner in the writ petition did not find favour with the learned Single Judge as the ground pressed in the said order of the authority was considered and the learned Single Judge felt unnecessary to analyze the same on the touch-stone of principles for judicial review. The learned Single Judge has dismissed the writ petition only on the premise that certificate is bad, which cannot be sustained, in view of the decision of the Hon'ble Apex Court in the case of Commissioner of Police vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 and in case of Page 6 of 10 7 of 11 C/SCA/10492/2015 ORDER Mohinder Singh Gil vs. Chief Election Commissioner, reported in (1978)1 SCC 405.
10. The touch-stone on which the judicial review of the orders of the authority impugned are and will have to be seen on the principle annunciated for judicial review in the aforesaid decisions. It cannot be said that this was a policy decision and the appellant-petitioner did not fulfill any of the criteria. Once the time slot was extended, the petitioner should have been permitted to submit the said non-creamy layer certificate as it clearly goes to show that, in fact, the appellant-petitioner, had the non-creamy layer certificate for the year for which of asked for. The same had to be submitted only when the final examination was to be taken, i.e. after July, 2010 and prior to September, 2010, which has been done by the appellant- petitioner. The respondent-authorities have endeavoured to raise that the alleged violation of terms of advertisement was fatal. Though this is despite the fact that the appellant-petitioner has produced the same and gave his explanation for the same. It appears that the authorities have not permitted him to appear in the examination on hyper technical ground which were not germane to the main purpose for which the non-creamy layer certificate was supposed to be produced, and therefore,the principle annunciated would permit us to interfere with the impugned order as the same is bad in eye of law and is also against contours of administrative law, and therefore, even on the touch-stone of those principles, we deem it fit to interfere with the order of the authority as well as the order passed by the learned Single Judge.
11. The brief analysis of the impugned judgment and order passed by the learned Single Judge brings out the following and we shall now re-ton to the essential factor which shall determine out decision. The learned Single Judge had upturned the submission of the appellant-petitioner on the ground that though Mamlatdar has endorsed on the certificate dated 5.4.2010 that income of father of the appellant-petitioner for the year 2008- 2009 was Rs. 2,40,000/- but then he made further endorsement that income of the father of the appellant-petitioner for the year 2009-2010 was Rs. 3,25,000/-. Such endorsement is found made by the Mamlatdar subsequently as he signed the same on 27.9.2010. Not only this but because of the endorsement by the Mamlatdar as regards the income of the father of the appellant- petitioner for the year 2009-2010, the certificate could not be taken to be the certificate for the financial year ending on 31st March, 2009. Therefore, certificate produced by the appellant- petitioner can never said to be non-creamy layer certificate for the relevant financial year ending on 31.3.2009. In our view, the impugned judgment is indubitably one which cannot be sustained. In the case of Rashmi Metaliks Limited and Anr. vs. Kolkata Metropolitan Development Authority and Ors., reported in (2013) 10 SCC 95, wherein, the Hon'ble Apex Court has observed in para-16, as under:Page 7 of 10
8 of 11 C/SCA/10492/2015 ORDER
16. The following observations found in the celebrated decision in Mohinder Singh Gill v. Chief Election Commr., are relevant to this question:
'8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji, (AIR p. 18, para 9) '9.....public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
12. Therefore, it is a fundamental rights of a person to compete in a examination, and therefore, writ petition under Article 226 of the Constitution of India was maintainable. In the case of Director of Settlements, A.P. v. M.R. Apparao, reported in (2002) 4 SCC 638, the Hon'ble Apex Court stated that "the powers of the High Court under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised lines and subject to certain selfimposed limitations. The expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but yet the courts must exercise the same with certain restraints and within some parameters."
13. As early as in the year 1964, the Hon'ble Apex Court in the case of State of Orissa v. Ram Chandra, reported in AIR 1964 SC 685, has observed as under:
"Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said Article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Article 226 is wide in that sense, the Page 8 of 10 9 of 11 C/SCA/10492/2015 ORDER concluding words of that Article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegal invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226."
14. Thus, the fundamental rights of the appellant-petitioner is just and proper and the learned Single Judge ought to have protected the fundamental rights of the appellant-petitioner and issued a writ or direction.
15. Further, the facts reveal that the non-creamy layer certificate was at least produced and submitted to the authorities by the appellantori. Petitioner for the relevant period, which is at page 19 and also 20. The learned Single Judge despite the fact that there were no pleadings that the certificate is interpolated or forged, has come to the conclusion that the certificate produced by the petitioner can never said to be non-creamy layer certificate for the relevant financial year.
16. We are unable to persuade ourselves to agree with the observation made by the learned Single Judge in para-10 of the impugned judgment and order, and therefore, the order passed by the learned Single Judge requires interference on the ground that the appellant-petitioner had already submitted non-creamy layer certificate which is dated 5.4.2010 which was issued prior to the main examination. It was nobody's case that there was any interpolation, and therefore, the finding of facts by the learned Single Judge, that there cannot be said to be a non- creamy layer certificate, at all, requires to be interfered with.
17. It appears that another certificate at page 20 is also issued on 28.8.2010 for the financial year 2008-2009 and the certificate dated 5.4.2010 at Annexure-E at page 19 also for the same financial year 2008-2009 and the income of the family was Rs. 2,40,000 for the financial year 2008-2009 and for the year 2009- 2010 was Rs. 3,25,000/-. A reference is made to the order passed by this Court in Special Civil Application No. 172 of 2010 Annexure-F page 21, and therefore, the order passed by the learned Single Judge cannot be sustained. There is another aspect of the matter about terms and conditions. In instruction no. 15, it is mentioned that the candidate belonging to the SEBC, if not produce non-creamy layer certificate after 1.4.2009, then his candidature shall stands cancelled for appearing in the main examination. What was required to be done was to submit the non-creamy layer certificate for the financial year 2008- 2009 between the period from 1.4.2008 to 31.3.2009, before the main examination is commenced. As far as reply is concerned, on 21.8.2010 the respondent-commission has asked to submit the non-creamy layer certificate, and therefore, the appellant- petitioner had obtained the same and submitted it on 28.8.2010, and therefore, his case ought to have been considered for appearing in the main examination and he cannot be denied for Page 9 of 10 10 of 11 C/SCA/10492/2015 ORDER his right. It is brought to our notice that by interim order dated 23.5.2013, the appellant-petitioner was permitted to appear in the main examination and therefore the respondent-commission shall also declare his result.
18. In the result, this appeal is allowed. The impugned judgment and order dated 2.5.2013 passed in Special Civil Application No. 2161 of 2011 is quashed and set aside. The respondent-Commission is also directed to declare the result of the appellant-petitioner along with other contesting candidates who have appeared in the competitive examination."
11. It appears that the petitioner was not able to procure the non- creamy layer certificate as required by the respondents in Parishist "K" in accordance with the Government Resolution of 1966 between 01.04.2014 and 08.10.2014. The petitioner could procure the certificate in Parishist "K" on 24.05.2015 which ought to have been issued on 01.04.2014 to 08.10.2014. I am of the view that as an exceptional case and without citing as a precedent, the petitioner should be given one chance and should not lose his appointment when he was otherwise successful in clearing all other tests.
12. In the result, this petition is allowed. The respondent is directed to accept the certificate issued by the Mamlatdar, Maninagar, Ahmedabad City in Parishist "K" dated 24.05.2015 annexed along with the affidavit-in-reply filed on behalf of the respondent Nos.2, 3 and 4 at page 62.
13. With the above, the petition is allowed to the aforesaid extent. Rule is made absolute. Direct service is permitted.
14. At this stage, Mr.Gautam, the learned AGP prays that the operation of the order may be suspended for a period of 2 weeks. In view of above the observations made in the order, the request is declined.
(J.B.PARDIWALA, J.) dharmendra Page 10 of 10 11 of 11