Gujarat High Court
Puransingh Nimbsingh Chauhan vs Deputy Inspector General Of Police & ... on 12 December, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/MCA/3206/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 3206 of 2014
In
SPECIAL CIVIL APPLICATION NO. 9493 of 2013
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PURANSINGH NIMBSINGH CHAUHAN....Applicant(s)
Versus
DEPUTY INSPECTOR GENERAL OF POLICE & 1....Opponent(s)
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Appearance:
MS VIDITA D JAYSWAL, ADVOCATE for the Applicant(s) No. 1
MR DHARMESH DEVNANI, AGP for the Opponent(s) No. 2
MR KALPESH N SHASTRI, ADVOCATE for the Opponent(s) No. 1
RULE SERVED BY DS for the Opponent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 12/12/2014
ORAL ORDER
1. In this application, the applicant has prayed, inter alia, that:
"6B. YOUR LORDSHIPS may be pleased to kindly review the Judgment and order dated 27.11.2013 in Special Civil Application No.9493 of 2013 after considering the contention raised by the present applicant in the memo of this application.
C. Your Lordship may be pleased to condone the delay in preferring present application in the interest of justice."
2. The applicant is original petitioner in the 1 C/MCA/3206/2014 ORDER main petition being Special Civil Application No.9493 of 2013.
3. After having taken out a substantive appeal being Letters Patent Appeal No.916 of 2014 against the order dated 27.11.2013 passed in main petition being Special Civil Application No.9493 of 2013, the original petitioner has taken out present application seeking abovequoted relief.
4. So as to appreciate and consider the request made by the applicant in present application, it is relevant to take into account the relief prayed for by present applicant in his main petition being Special Civil Application No.9493 of 2013. In the said petition, the applicant herein prayed, inter alia, that:
"9(b) This Honourable Court may be pleased to issue appropriate writ, order or direction to direct the Respondent No.1 to consider the case of the petitioner positively for the post of Cook in CRPF and further be pleased to direct Respondent No.2 to inquire into the matter and thereby revive the Domicile Certificate of the petitioner."2 C/MCA/3206/2014 ORDER
5. The applicant herein had taken out the said petition on the allegations and claim that in February 2004, he was selected for the post of Cook with the respondent No.1.
6. It is pertinent that though it was a specific condition that the candidate must produce Domicile Certificate, he, undisputedly, could not, rather did not, produce the Domicile Certificate at the relevant time / on the relevant date.
7. The fact that the petitioner did not produce Domicile Certificate at the relevant time is an undisputed or rather admitted fact. The petitioner further alleged and claimed that his name was included in the waiting list and he was granted time until 2.6.2014 to submit the Domicile Certificate.
8. The petitioner has also claimed that subsequently, he submitted the Domicile 3 C/MCA/3206/2014 ORDER Certificate. The petitioner further alleged that he did not receive any response from the respondents, therefore, in September 2006, he again forwarded the Domicile Certificate alongwith translation.
9. Thus, even according to his own admission, the petitioner made the second attempt after two years, i.e. in 2006.
10. According to petitioner's allegation, it was in response to the said second attempt that respondent No.1, vide its letter dated 14.9.2006, informed him that his case cannot be considered for appointment since the requisite certificate was not produced at the relevant time.
11. In the petition, the petitioner also alleged that after the said response from respondent No.1, he served a notice to respondent No.1.
12. During the hearing of the petition, it also 4 C/MCA/3206/2014 ORDER emerged that on receipt of the notice, respondent No.1 forwarded reply and clearly informed the petitioner that on scrutiny it was found that the Domicile Certificate was procured by submitting fake documents and the authority, who issued the said certificate, had itself cancelled the same. The said reply was forwarded by respondent No.1 in November 2006.
13. In the petition, the petitioner had alleged that in August 2010, he was informed by the District Magistrate that he should approach Court for revival of the certificate.
14. It is pertinent that in backdrop of all such facts, the petitioner ultimately preferred the petition in May 2013, i.e. after delay of almost 7 years from the date on which he was informed (i.e. September 2006) that since he had not submitted the certificate at the relevant time, his case cannot be considered for appointment and considering from the date on which petitioner's 5 C/MCA/3206/2014 ORDER name, according to his allegations, was put in waiting list, the delay in taking out the petition comes to about 9 years.
15. In this background, learned counsel for the petitioner was heard at length during the hearing of the petition which came to be decided vide order dated 27.11.2013.
16. In the said order, this Court observed and recorded that:
"8. Thus, in connection with his alleged selection in 2004, the petitioner has, after delay of 9 years, taken out this petition in 2013. Actually, on this ground, the petition does not deserve to be entertained.
9. Respondent No.1 has filed an affidavit and denied averments and allegations made by the petitioner and has placed on record certain relevant factual aspects. It is averred and asserted by respondent No.1 that:
6. With respect to para2, it is submitted that Sh. Puran Singh, S/O. Nimb Singh was selected during the recruitment process at GC, CRPF, Gandhinagar as COOK in CRPF which was exclusively meant for the candidates who had bonafide domicile status of Gujarat State only. But during verification of domicile certificates, the certificate No. AMG/SR/310/03 dated 21/11/2003 submitted by Sh. Puran Singh, S/O Nimb Singh was verified as per the details below and found to be bogus and hence his candidature was cancelled accordingly. It is submitted that the office of opponent no. 1 herein had therefore sent a verification letter to the Mamalatdar, Gandhinagar in 08th March 2004.6 C/MCA/3206/2014 ORDER
Annexed hereto and marked as ANNEXURER/1 is the copy of the said advertisement dated January 2004. Annexed hereto and marked as ANNEXURER/2 is the copy of the letter dated 08th March, 2004 addressed by office of respondent no. 1 herein, the Mamalatdar, Gandhinagar by letter dated 10/03/2004 was pleased to inform the Deputy Inspector General of Police, CRPF, Gandhinagar that the said certificate was procured by producing false documents and therefore the same to be treated as cancelled. Annexed hereto and marked as ANNEXURER/3 is the copy of the letter dated 10/03/2004 addressed by Mamalatdar, Gandhinagar to the office of respondent no. 1 herein.
7. With respect to para 3.1, it is submitted that Sh. Puran Singh S/O Nimb Singh was never eligible for the post of COOK during the recruitment at GC, CRPF, Gandhinagar carried out w.e.f. 25.02.2004 to 29.02.2004, as the recruitment was exclusively meant for the candidates who had bonafide domicile status of Gujarat State. Whereas the Domicile Certificate No. AMG/SR/310/03 dated 21/11/2003 submitted by Sh. Puran Singh, S/o. Nimb Singh during the recruitment was found bogus submitted by the candidate twice.
8. & & & & &
9. & & & & & In reply IGP, W/S CRPF Navi Mumbai vide his letter No. J.II.66/2006W/S Legal dated 02/02/2007 directed Range office Gandhinagar to get the certificate verified first as well as obtain reasons from the concerned authority for its cancellation in first instance and again confirming it to be genuine. Accordingly a letter was sent to the Mamalatdar, Gandhinagar to verify and correctness vide this office letter No. J.II.193/07 DIGP,GNR.EC.II dated 17/07/2007. In reply the Mamalatdar, Gujarat vide his letter no. MAG/Vashi/1248/07 dated 05/03/2007 stated that the certificate dated 21/12/2006 was issued by his office since his office was kept in darkness about the real facts. Further he cancelled the certificate issued on 21/12/2006. Annexed hereto and marked as ANNEXURER/7 is the copy of the letter dated 05/03/2007 issued by Mamalatdar, Gandhinagar.
10. & & & & &
11. & & & & &
12. With respect to para3.9, it is submitted that letter dated 24/08/2012 submitted by Sh. Puran Singh, S/O Nimb 7 C/MCA/3206/2014 ORDER Singh was containing the copy of the same domicile certificate and letter dated 21/12/2006 issued by executive magistrate and mamaltdar, Gandhinagar which was once produced to Range office Gandhiagar alongwith legal notice dated 26/12/2006 submitted by Advocate Rajendra K. Patel. Hence Sh. Puran Singh, S/O. Sh. Nimb Singh was intimated accordingly to avoid unnecessary correspondence with this office vide this office letter No. J.II.193/2006 EC.3 dated 09/11/2012. Annexed hereto and marked as ANNEXURER/8 is the copy of the communication dated 9th November, 2012.
13. & & & & &
14. & & & & &
15. With respect to Para4(A), it is submitted that the contention of the petitioner Sh. Puran Singh S/O. Nimb Singh at this para is not acceptable as the action taken against him was fully legal and constitutional. He never submitted the true domicile certificate and the domicile certificate submitted by him during the recruitment process was found fake.
16. With respect to Para 4(B), it is submitted that experience certificate from various local vendors, hotels and restaurants are not an authenticated documents asked during recruitment process or considered for a Govt. Job as the recruitment was exclusively meant for the candidates who had bonafide domicile status of Gujarat State and the same was also mentioned in the notification issued for the recruitment. In the notification it was clearly mentioned to produce original domicile certificate.
10. It has emerged from the record that when the petitioner submitted his Domicile Certificate, the respondent authorities got the said certificate verified and upon verification, the respondent authorities were informed that Domicile Certificate was obtained by producing bogus material / document and that, therefore, the said Domicile Certificate is cancelled."
17. Having regard to the facts of the case, the Court also observed and recorded in the said order that:
8 C/MCA/3206/2014 ORDER
"14. So long as Domicile Certificate remains / stands cancelled in view of the fact that the petitioner obtained it on the basis of the bogus material, the request made by the petitioner in present petition cannot be granted.
15. Even otherwise, the entire thing would, even if petitioner's submission that the petitioner was placed in waiting list in 2004 is taken into account, relate to the time of 2004 and on the basis of waiting list, which was prepared in 2004, any prayer in 2013 cannot be granted, particularly so long as there is nothing on record to show that as of now there is any vacancy on the post of Cook and the respondents are making any appointment on the post and any procedure for selection and appointment on the post of Cook is in progress.
16. On this count, it is necessary to mention that the petitioner has not stated as to whether recently any advertisement inviting applications for the post of Cook has been issued by the respondents or not and if such advertisement is issued recently then, when was such advertisement issued. The petitioner has also not clarified as to whether in response to any recent advertisement, or even otherwise, the petitioner has submitted any application for appointment on the post of Cook or not. Furthermore, the petitioner has also not produced any material on record to demonstrate the eligibility criteria, etc. prescribed by the respondents for the post of Cook and as to whether the petitioner posses such qualifications or not and whether he is eligible for consideration, selection and appointment of such post or not."
18. After the said order dated 27.11.2013 was passed, the petitioner preferred Letters Patent Appeal and challenged the said order.
19. It appears that the petitioner withdrew the appeal with request to permit him to file review application.
9 C/MCA/3206/2014 ORDER
20. Thus, the appeal came to be disposed of vide order dated 26.8.2014. The said order reads thus:
"Ms.Vidita Jayaswal, learned counsel seeks permission to withdraw the appeal with a view to approach the learned Single Judge for seeking review of the order on account of the facts which she pleaded may help the cause of the petitioner and she seeks liberty to approach the Court by way of appeal as the present appeal is being withdrawn without canvassing anything on merit. Permission as sought for is granted. The appeal is disposed of as withdrawn. No order in Civil Application."
21. Subsequently, after delay of almost 273 days, the applicant - petitioner preferred present application.
22. By separate application being Civil Application No.11688 of 2014, the applicant prayed that the delay may be condoned. By order dated 7.11.2014, this Court condoned delay of 273 days and learned counsel for the applicant is heard on merits. During the hearing, learned counsel for the applicant reiterated the details mentioned in paragraphs No.3(a) to (c). Any 10 C/MCA/3206/2014 ORDER other submissions are not made.
23. So far as the submission that while in the order it is recorded that the petitioner had never challenged the decision cancelling Domicile Certificate and the petitioner had approached the District Magistrate, is concerned, it is relevant to mention that the said observation was made on the basis of the submission by learned counsel for the applicant and the material on record at relevant time.
24. In this context, it is relevant to mention that at the time of hearing of this application, learned counsel for the applicant again tried to rely on communication dated 5.3.2007 (AnnexureR, page 88) said to have been written by Mamlatdar, Gandhinagar.
25. In this context, the Court again inquired in light of the details / text of the said communication dated 5.3.2007, from learned 11 C/MCA/3206/2014 ORDER counsel for the petitioner that how does the petitioner rely on the said document and/or what is his explanation with regard to the said communication inasmuch as the said communication is with reference to a person named 'Puransinh Jamsinh Chauhan', whereas the petitioner's name is Puransinh Nimbsingh Chauhan.
26. Any explanation as regards this discrepancy does not come forth. Even in the legal notice issued by learned counsel for the petitioner, the petitioner has mentioned his father's name as 'Nimbsingh'. Even the communication dated 14.3.2004 (AnnexureR3, page 81), which is the communication by Mamlatdar, Gandhinagar to the Deputy Inspector General of Police (CRPF), the father's name is shown as Nimbsingh. It is the said communication on which the authorities relied.
27. Thus, the authorities relied on the reply by 12 C/MCA/3206/2014 ORDER Mamlatdar which is with reference to the petitioner, whereas in the communication placed on record at AnnexureR7, pages 87 and 88 middle name, i.e. father's name is mentioned and shown as Jamsinh. Any convincing and satisfactory reply and explanation is even this time (i.e. in this application and during the hearing of this application) not offered by the applicant / learned advocate for the applicant.
28. Learned counsel for the petitioner then referred to the document at AnnexureI, page 32 to claim that the decision cancelling the certificate was challenged by the petitioner. From the said document, it becomes clear that the application was allegedly filed in the office of District Magistrate who had informed, vide communication dated 26.8.2010, the petitioner that the petitioner should approach appropriate Court and challenge the certificate and get it cancelled.
13 C/MCA/3206/2014 ORDER
29. However, the petitioner could not show (during the hearing of the petition or even during the hearing of this application) any document to establish that thereafter the decision of cancellation of Domicile Certificate was challenged before appropriate Court.
30. In this view of the matter, the said observation in the order dated 27.11.2013 was made.
31. During the hearing of present application also learned counsel for the petitioner could not throw any additional or further light and could not establish that the decision cancelling the certificate was challenged by the petitioner before appropriate and competent Court after the letter dated 26.8.2010 advising the petitioner to take out appropriate private proceeding before competent authority. Besides this, the said observation in the order dated 27.11.2013 is not the basis or foundation of the order. The Court 14 C/MCA/3206/2014 ORDER declined to entertain the petition mainly on the ground of delay of about 7 years.
32. The other aspect mentioned by learned counsel for the petitioner was with reference to the observation in the order that '... ... ... any prayer in 2013 cannot be granted, particularly so long as there is nothing on record to show that as of now there is any vacancy on the post of Cook and the respondents are making any appointment on the post and any procedure for selection and appointment on the post of Cook is in progress '.
33. It is true that in present application, the petitioner has attempted to place on record document (at pages 25 to 29/E of this application) to claim that subsequently, an advertisement inviting applications for the said post was issued which means that there was vacancy on the said post.
34. In the said order, what the Court recorded 15 C/MCA/3206/2014 ORDER was the position which obtained from the record when the Court passed the order in said main petition.
35. It is an undisputed fact, and is matter of record, that the document, which is now placed at pages 25 to 29/E on record of this application, was not placed on record of main petition. For seeking review of the order which was passed on the basis of the material which obtained on record of the main petition as on 27.11.2013, the applicant - petitioner cannot rely on new / fresh material, i.e. the material which was not on record of the said petition on 27.11.2013 and which is attached to this application and sought to be brought on record for the first time in an application (which is filed after delay of 273 days).
36. It is an undisputed fact that the said documents were not on record of the main petition and that, therefore, the petitioner cannot rely 16 C/MCA/3206/2014 ORDER on the said document to claim that the Court did not take into account the material.
37. Even the petitioner has admitted in present application that 'the same was not produced before this Hon'ble Court as the same came to the notice of the applicant herein only in December 2013'.
38. Thus, even according to the petitioner's admission, the said document was not on record before the Court.
39. Hence, the said aspect does not justify and/or support the request for review of the order.
40. In this context, another relevant and pertinent aspect is that according to the said advertisement (on which the petitioner has sought to rely) the eligibility criterion related to minimum and maximum age prescribed that the 17 C/MCA/3206/2014 ORDER candidate should be in the age bracket of 18 to 23 years as on 1.1.2014.
41. In this context, it is relevant to note that in one of the documents on record of the main petition (page 29), the date of petitioner's birth is shown to be 7.10.1978. During the hearing of application, learned counsel for the petitioner, in reply to Court's query, informed that the petitioner's birth date is 10.7.1978. When the petitioner's age is determined in light of his birth date by taking into account the date 7.10.1978 (or even 10.7.1978), the petitioner would be agebarred for the post in question. Therefore, even otherwise, the said fact, which is sought to be subsequently introduced, does not help the case of the petitioner.
42. In view of the abovementioned facts and circumstances and for the foregoing reasons, any ground or justification for review of the order is not made out.
18 C/MCA/3206/2014 ORDER
43. The petitioner has failed to establish that the order dated 27.11.2013 suffers from any error apparent on the face of the order.
44. The additional / new material, on which the petitioner has sought to rely, also does not help the petitioner.
45. In this context, it cannot be said that the petitioner was not aware about the said material / advertisement or that it was not within his knowledge, despite due diligence.
46. The said public notice / advertisement seems to have been published in the newspaper at the relevant time and therefore, it cannot be claimed that despite due diligence, the petitioner had no knowledge about the same.
47. Thus, the criteria contemplated under Order 47 are not fulfilled and the petitioner's case / 19 C/MCA/3206/2014 ORDER application does not fall within purview of the said provision and does not fulfill the requirement to justify request for review of the order.
48. Even otherwise, since about 2003 the petitioner appears to be agebarred for the post in question. In that view of the matter also, the petitioner has failed to justify case for review of the order dated 27.11.2013.
49. Accordingly, the application fails and deserves to be rejected and is hereby rejected.
(K.M.THAKER, J.) Bharat 20