Gujarat High Court
Pravinsinh Mahijibhai Sindha vs State Of Gujarat & on 3 April, 2013
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
PRAVINSINH MAHIJIBHAI SINDHA....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/1283/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1283 of 2013 With SPECIAL CIVIL APPLICATION NO. 1284 of 2013 TO SPECIAL CIVIL APPLICATION NO. 1296 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ PRAVINSINH MAHIJIBHAI SINDHA....Petitioner(s) Versus STATE OF GUJARAT &
2....Respondent(s) ================================================================ Appearance:
MR NIKHIL S KARIEL, ADVOCATE for the Petitioner(s) No. 1 MR PADMRAJ K JADEJA, ADVOCATE for the Petitioner(s) No. 1 MR ALKESH SHAH, AGP for the Respondent No.1 (IN SCA NOS. 1282/13, 1283/13, 1284/13 AND 1285/13 MR BHARAT VYAS, AGP for the Respondent No. 1 (IN SCA NOS. 1291/13, 1292/13 AND 1293/13 MR ROHAN YAGNIK, AGP for the Respondent No.1 (IN SCA NOS. 1287/13, 1288/13, 1289/13, 1290/13 MR URSHIT OZA, AGP for the Respondent No.1 (IN SCA NOS. 1294/13, 1295/13 AND 1296/13 MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED BY DS for the Respondent(s) No. 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 03/04/2013 CAV COMMON JUDGEMNT All these petitions arise out of same and similar facts and the prayer prayed for in all the petitions are also same and, therefore, all the petitions are decided and disposed of by this common Judgment.
By way of these petitions, the petitioner in all the above petitions have prayed to quash and set aside the impugned order dated 30.1.2013 as being erroneous and by way of ad-interim relief the petitioners have sought for stay of implementation, execution and operation of the impugned order dated 30.1.2013, and to direct the respondent No.3 not to terminate services of the petitioners.
Brief facts of the case are as under :
The petitioners belong to the Sindha community which is as sub-category of Baraiyya community, declared as a community under the SEBC category. It is alleged in the petition thaton the basis of caste certificate, the petitioners have been appointed as Vidhyut Sahayak in the SEBC category vide order dated 23.9.2008, and working as such in the Dhuvaran Power Station/Ukai Thermal Power station, etc. It is averred in the petition that on 11.6.2010 one Kamsibhai S. Gamit made a complaint to His Excellency Hon ble Governor, State of Gujarat alleging that the persons of Sindha community, though belonging to the Rajput Caste, have obtained false SEBC Certificate and are working as Vidhyut Sahayak in different power stations. The said communication was forwarded to the respondents No.1 & 2 and on the basis of which the Chief Engineer, GSEL Ltd., was informed by the respondents No.1 & 2 to furnish details as to how many persons having the surname Sindha have been appointed in SEBC quota and also to furnish their names, addresses and their application forms along with SEBC Certificates and School Leaving Certificates. On inquiry, it was learnt that around 14 persons having surname Sindha have been appointed on the post of Vidhyut Sahayak . Thereafter, by communication dated 7.9.2010 the petitioner was asked to remain present on 17.9.2010 before respondent No.2, with School Leaving Certificate of standard 10 or 12, school leaving certificate in original or copy thereof in case of his father and any other documents which would prove the petitioner being a member of SEBC community and any other document having probative value as regards the petitioner being a member of SEBC category. Petitioners thereupon produced the relevant documents as asked by the respondent No.2. Thereafter, again the petitioner was called upon to remain present at the office of respondent No.2 on 11.11.2010 with further evidence in respect of the petitioner being a member of SEBC category. Vide G.R. dated 19.12.2008 Scrutiny Committee was set up to scrutinize Caste Certificates of Socialy and Economically Backward Class, as per the guidelines laid down by the Hon ble Supreme Court. It is averred that since the explanation given by the petitioner was not found to be satisfactory as per the guidelines in Government Resolution dated 19.12.2008 the Scrutiny Committee was constituted and the petitioner was directed to remain present before the Scrutiny Committee on 15.6.2011. It is averred that vide order dated 28.8.2012 the caste certificate of the petitioner was cancelled and all the benefits accrued upon the petitioner by virtue of the said Certificate was declared as illegal ab-initio. The said order was challenged by the petitioner before this Hon ble Court in Special Civil Application No. 12114 of 2012 and this Court vide order dated 7.9.2012 while issuing Notice has been pleased to protect the services of the petitioner subject to the petitioner filing an undertaking. Thereafter, during the course of hearing of the said petition, since the petitioner had received information in support of his contention of being a part of Baraiyya community, the petitioner requested this Court for directing the Scrutiny Committee to take into consideration the fresh material available to him and this Court vide order dated 5.11.2012 had accepted the request of the petitioner on condition that the Authority shall look into and pass appropriate orders only after considering the new documents that shall be produced by the petitioner and not on the basis of the documents on which findings have already been recorded, and also granted time upto 21.11.2012 to the petitioner to produce new documents and the authority concerned was directed to take the decision on or before 31.1.2013 and also ordered that till such time the impugned order passed by the authority shall remain in abeyance. Thereafter, before the Authority, the petitioner produced new material in form of record of the Barot (Record Keeper) of Sindha community spread over above 700 years in the past along with statement of Barot (Record Keeper) of their community. It is submitted that the Scrutiny Committee had believed the record of the Barot (Record Keeper) as genuine, but, has rejected the claim of the petitioner and other similarly situated persons on the ground that the community got the surname Sindha after their ancestor who had killed Sindha Bhil but ancestor of the petitioner was a Rajput and based upon such conclusion the Scrutiny Committee had cancelled the SEBC Certificate issued in favour of the petitioners. Being aggrieved by the said decision of the Scrutiny Committee, the petitioner and other similarly situated persons have filed the above mentioned petitions.
Pursuant to the Notice dated 7.2.2013, issued by this Court, the respondents appeared and also filed Affidavits controverting the averments made in the petitions.
Heard learned Advocate Mr. Kerial appearing on behalf of the petitioners, learned A.G.P., appearing on behalf the respondents No.1 & 2 and learned Advocate Ms. Bhaya, appearing on behalf of respondent No.3.
Learned Advocate for the petitioner has contended that the petitioners belong to the sindha community which is as sub-category of Baraiyya community, which is declared as a community falling under the SEBC category and on the basis of SEBC category, they got appointments. He has contended that after the appointments of the petitioners, on the complaint being filed, the Scrutiny Committee inquired into the question as to whether the persons having the surname Sindha should be treated as falling under the SEBC category and would be entitled to the benefit of reservation available to the said category. He has contended that the petitioners have produced all the records, including the record of Barot (Record Keeper) before the Committee and the Committee believed the same as true and correct, but, the Committee illegally rejected the claim of the petitioners as belonging to the Baraiyya community on the ground that 700 years earlier the ancestor of the petitioner was from the Gohil community and, therefore, the petitioners would not be entitled to the benefits flowing from socially and economically backward caste certificate. He has contended that the Scrutiny Committee has without application of mind wrongly treated the petitioner as belonging to the Rajput community. He has contended that the Scrutiny Committee has failed to appreciate that Sindha-Baraiyyas are a relatively new community tracing its origins to an incident which had happened prior to about 700 years ago and merely because the original ancestor was belonging to the Gohil-Rajput community that by itself would not be sufficient since this was not an incident which had happened to the recent past of which the petitioner and other similarly situated persons are attempting to take advantage. Learned Advocate has also relied upon the report of Socially and Educationally Backward Class Commission known as Justice Bakshi Commission and contended that in the report the Committee/commission also recognizes situation where it is possible that new group not based on any caste may have come into existence with the passage of time and the said conclusion would apply to the Sindha community which is a new group or a community. He has contended that the committee has not considered the fact that the Sindha community has nothing in common with the Gohil-Rajput community of Bhavnagar where their entire way of life is totally similar to the way of life of the Baraiyya community. He has contended that it is well settled principles that persons having wrongly obtained false social status certificates have the effect of depriving genuine scheduled caste or scheduled tribe or other backward class candidates from availing the benefits available to them under the policy of reservation as enshrined in the Constitution of India and at the same time it should also be considered that due to lack of proper inquiry a person who is otherwise entitled to the benefit of reservation being a member of SEBC community, should not be deprived of the same. He has also contended that the petitioner has been working as Helper and there is no complaint as regards his performance on the said post. In that view of the matter the order dated 30.1.2013 passed by the Committee may be quashed and set aside. The learned Advocate of the petitioner has also relied upon the decision in the case of KUM. MADHURI PATIL v/s. ADDL. COMMISSIONER TRIBAL DEVELOPMENT, reported in 1996 (4) SCC 241. Reliance has also been placed on the decision in the case of RAMESHBHAI DABHAI NAIKA v/s STATE OF GUJARAT & ORS., reported in 2012 (1) GLH 448.
Learned A.G.P., appearing on behalf of the respondent No.1 and 2 has contended that the decision dated 28.8.2012 of the Scrutiny Committee was taken after considering the evidence on record, applying well settled principles of law and giving detailed reasons on all the issues raised by the petitioner and, therefore, the same does not call for any interference. He has contended that the petitioner got the appointment on the basis of false certificate of S.E.B.C. category and, therefore, the respondent No.3 was requested to provide information in this regard. He has contended that the petitioner was also given full opportunity by the concerned Authority to provide material and evidence to show that he belongs to SEBC category. He has contended that the record and material produced by the petitioner does not establish that he belongs to Baraiyya community which falls under the SEBC category. He has contended that the petitioner belongs to Sindha community which does not fall under the SEBC category and Sindha is not synonym of Baraiyya and to accept Sindha as synonym of Baraiyya there is no decision of OBC Commission or State Government to consider Sindha as synonym of Baraiyya . He has contended that the State Government has considered the direction issued by the Hon ble Supreme Court in the case of KUMARI MADHURI PATIL v/s ADDITIONAL COMMISSIONER, TRIBAL DEVELOPMENT, reported in (1994) 6 SCC 241. He has contended that the Scrutiny Committee is not required to go into social relations and traditions of two communities, namely, Baraiyya and Sindha and the Committee is entitled to review all false certificates of SEBC candidates. Learned AGP has also placed reliance upon a decision in the case of IMRAN ALI RAJABHAI POLARA v/s STATE OF GUJARAT & ORS., reported in 2004 (1) GLR 811 and contended that the competent Authority can cancel the caste certificate after observing principles of natural justice. He has contended that to determine the socio economic status of any caste or class is not within the purview of the Scrutiny Committee, it is the job of the Backward Class Commission appointed under Article 340 of the Constitution or any other order of the State. He has, therefore, contended that the Scrutiny Committee has rightly evaluated the evidence and records put before the Committee and the present petitioners have failed to satisfy the correctness of the SEBC Certificate availed by the petitioners.
Learned Advocate Ms. Bhaya, appearing on behalf of the respondent No.3 has contended that the appointing authority and the terminating authority in this case is Chief Engineer. She has contended that the petitioners were fully knowing that they have been issued show cause notice as to why their services should not be terminated, the same was not produced before this Court though the prayer of the petitioners is against the respondent No.3 that the respondent No.3 should not terminate their service and, therefore, only on the ground of suppression of material facts the petition deserves to be dismissed. She has contended that on the basis of false certificate, the petitioners have obtained appointment and the said certificate has been declared as illegal ab-initio and, therefore, the very foundation of the appointment has collapsed and such persons cannot be continued in service. She has contended that the intention of the petitioners is to continue in the service by applying delaying tactics. She has contended that as per the affidavit filed on behalf of the Government, the Sindha community are coming from Rajput community and in spite of that they have produced false certificate of Baraiyya community and took the benefit of reservation. Learned Advocate has also relied upon the decision in the case of KUMARI MADHURI PATIL (supra) and contended that as per the directions issued in the said decision the State Government has constituted a Committee and the Committee is entitled to review all the certificates of SEBCs. She has contended that there is no instructions issued by the State Government to consider Sindha as synonym of Barraiya in view of decision in the case of STATE OF MAHARASHTRA v/s MILIND & ORS., reported in AIR 2001 SC 393. The learned Advocate has also relied upon a decision of the Hon ble Supreme Court reported in AIR 2004 SC 1469, in which the Hon ble Apex Court has categorically observed that when the caste certificate of the petitioner is illegal ab-initio, the petitioner is not entitled to any benefit out of the recruitment obtained on the basis of said false certificate. The learned Advocate for the respondent No.3 has also relied upon the decisions reported in (i) (2005) 7 SCC 605, (ii) (2007) 2 SCC 335 and (2004) 2 SCC 105. The learned Advocate has lastly submitted that in the facts and circumstances of the present case the petitioners are not entitled to any relief and the petition deserves to be dismissed with costs.
I have heard learned Counsel for the respective parties. I have also gone through the papers produced before me and also gone through the decision of the Scrutiny Committee as also the decisions of the Hon ble Apex Court cited by the parties.
It appears that the Hon ble Supreme Court in the case of KUMARI MADHURI PATIL & ANR. (Supra) issued some guidelines to the State Government to constitute a committee of three officers, namely, (i) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (iii) in the case of Scheduled Caste another officer who has intimate knowledge in the verification and issuance of the social status certificate; in the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal community, parts of or groups of tribes or tribal communities. As per the said guidelines the State Government, vide G.R. Dated 19.12.2008, constituted the Scrutiny Committee under the chairmanship of Additional Chief Secretary/ Principal Secretary/Secretary/Additional Secretary/Joint Secretary with three members, namely, (1) the Director, (Developing Caste Welfare), (2) the Director (Tribal Research & Training Center) and (3) Joint Director/Deputy Director (Developing Caste) to verify the caste certificate, to issue social status certificate, etc. In the present case, the petitioners got the appointment in the respondent No.3 on the basis of caste certificate issued by the District Social Welfare Officer. It is the say of the petitioners that they belong to Sindha community which is as sub-category of Baraiyya community, declared as a community under the SEBC category. Thereafter, it seems that on the basis of complaint dated 11.6.2010 made by one Kamsibhai S. Gamit to His Excellency Hon ble Governor of Gujarat, which was forwarded to the respondent No.1 & 2, alleging that persons of Sindha community, though belonging to the Rajput Caste, have obtained false SEBC Certificate and have been working as Vidhyut Sahayak with Thermal Power Station (respondent No.3), and on the basis of the same, vide order dated 18.8.2010, the Chief Engineer was informed to furnish details about the appointment of Sindha community in SEBC category. Thereafter, the petitioners were asked to remain present on 17.9.2010 in the office of respondent No.2 with all the relevant materials, viz. Original school leaving certificates, etc., to prove that they being the members of SEBC community. Thereafter, the petitioners were again directed to remain present before the respondent No.2 on 11.11.2010 with further evidence in respect of the petitioners being the members of SEBC category and since the explanation given by the petitioners was not found satisfactory, the petitioners were directed to remain present before the Scrutiny Committee on 15.6.2011. Thereafter, the Scrutiny Committee vide order dated 28.8.2012 cancelled the claim of the petitioners status of SEBC and all benefits accrued upon the petitioners by virtue of the said certificate was declared as illegal ab-initio. The petitioners challenged the said order dated 28.8.2012 before this Court by way of Special Civil Application No. 12114 of 2012 and this Court, vide order dated 7.9.2012 issued Notice and also protected the service of the petitioners subject to their filing an undertaking. Thereafter, during the pendency of the above petition the petitioner received some material information and, therefore, they requested this Court for directing the Scrutiny Committee to take into consideration the fresh material available to the petitioners. The petition came to be disposed of by giving direction to the Scrutiny Committee to look into the matter and pass appropriate orders only after considering the new documents that shall be produced by the petitioners and not on the basis of the documents on which findings have already been recorded earlier and time was granted upto 21.11.2012 to the petitioners to produce the new documents and the authority concerned was directed to take the decision on or before 31.1.2013 and till then it was ordered that the impugned order passed by the Authority shall remain in abeyance and the liberty was granted to the petitioners to challenge the decision after considering the new material, if such decision is adverse to the petitioners.
It seems that after the above order passed by this Court, the petitioners have informed to the Director, Developing Caste Welfare Department in writing on 19.11.2012 that they want to submit as an additional evidence in the nature of record of Barot (Record Keeper) of their community pointing out the fact that while the origin of the petitioners lay in the Gohil clan of Bhavnagar, but, before 700 years due to certain incidents, ancestors of the petitioners were out-casted since one of their ancestors had married a lady from the Baraiyya community and after being out-casted the ancestors had started living near Khambhat and the Sindha community is descending from the said ancestors. It is also the submission of the petitioners that the Sindha community had marriage relations with the Baraiyya community and in their locality they were termed as Sindha-Baraiyya . The Scrutiny Committee has considered the submission of the petitioners as also the additional evidence produced by the petitioners and has observed as under :
As per the aforesaid submission if Barot is true and oral as well as written statement given by him have probative value, then the same is acceptable. In the case of Sindha Pravinbhai Mahijibhai (the petitioner of Special Civil Application No.1283 of 2013), apart from the written statement of his Barot as well as in his oral statement he has stated that ancestors of Sindha Pravinbhai Mahijibhai were original Gohil Rajputs of Bhavnagar and when they were going on pilgrimage in S.Y. 1326, they had arrived in Khambhat area and at that time to save the chastity of one Brahmin lady they had killed Sindha-Bhil @ Barraiya and had also married his daughter. Since then, on account of this incident they are known as Sindha Barraiya . Barot has given the list of six generations pursuant to this incident up to the time of Sindha Pravinbhai Mahijibhai. However, even if we presume this evidence of Barot to be true, Shri Sindha Pravinbhai Mahijibhai does not prove that he belongs to Barraiya community. Because of the incident of killing of Sindha-Baraiyya (Bhil), his ancestors were known as Sindha and it started to be a new surname. However, the ancestors of the applicant Shri Sindha Pravinbhai Mahijibhai were very much Rajputs . Sindha-Baraiya became a nick-name, but because of that original Gohil-Rajput dynasty of Bhavnagar does not change. Thus, the statement as well as oral evidence of Barot even do not establish the caste of the applicant Shri Sindha Pravinbhai Mahijibhai to be Baraiya . On the contrary, it establishes that they are originally Rajputs of Bhavnagar district. Only by committing murder of Sindha of Baraiya caste, they cannot get the status of Baraiya community, because, ancestors are decided on paternal side and not by committing murder of a person of any community. Thus, even with the new evidences of the second stage also candidate Shri Pravinbhai Mahijibhai could not establish his community to be Barraiya falling under Socially and Educationally Backward Class.
The committee has also observed that Thus even taking into consideration the new evidence document produced by the applicant as per the common oral order passed by the Gujarat High Court in the case of the petitioner dated 5.11.2012, his caste does not establish to be Baraiya . The caste certificate given by the District Social Welfare Officer (NT), Anand, is given mechanically, without application of mind and without holding any independent inquiry. Therefore, having regard to the aforesaid facts available on the record, as the community Certificate No. 2125 dated 25.6.2008 issued by the District Social Welfare Officer (NT), Anand, to the candidate Shri Sindha Pravinbhai Mahijibhai does not appear to be acceptable, the earlier order dated 28.8.2012 of cancelling caste certificate by the Scrutiny Committee is hereby confirmed and the candidate is directed to immediately deposit the original caste certificate with the Government. Thus, as the certificate of community of the petitioner Sindha Pravinbhai Mahijibhai stands cancelled, the benefit of reservation availed by him becomes illegal ab-initio.
Looking to the facts of the case and the observations made by the Scrutiny Committee, it clearly appears that the petitioners have failed to produce any material evidence to show that they belong to Sindha-Baraiyya community falling in the list of SEBC. The Committee has rightly observed that the statement as well as oral evidence of Barot even do not establish the caste of the applicants (petitioners) to be Baraiya . On the contrary, it establishes that they are originally Rajputs of Bhavnagar district. Only by committing murder of Sindha of Baraiya caste, they cannot get the status of Baraiya community, because, ancestors are decided on paternal side and not by committing murder of a person of any community. Thus, even with the new evidences at the second stage also could not establish the community of the petitioners to be Baraiya of Socially and Educationally Backward Class. Here, in the present case, as per the decision of the Hon ble Supreme Court in the case of KUMARI MADHURI PATIL (Supra) the State Government has constituted a committee to verify and to issue the social status certificate. The Hon ble Apex Court has also observed in Para 15 of the said decision that As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from other study or continue in office in a post. Here, in the present case, in my opinion the Committee has rightly not believed the statement as well as oral evidence of Barot which do not establish the caste of the petitioners to be Baraiya and on the contrary, it establishes that ancestors of the petitioners are originally Rajputs of Bhavnagar district. Only by committing murder of Sindha of Baraiya caste, they cannot get the status of Baraiya community, because, ancestors are decided on paternal side and not by committing murder of a person of any community. The various decisions relied upon by the petitioners are also not helpful to the petitioners because the facts of the decisions cited by the petitioners are different then the facts of the present case. I am, therefore, of the opinion that no interference is called for in the impugned order of Scrutiny Committee, and present petitions are liable to be dismissed.
In the result, all these petitions are hereby dismissed. Notice discharged. Ad-interim relief, if any, stands vacated.
(Z.K.SAIYED, J.) SAS FURTHER ORDER -
After pronouncement of the Judgment, learned Advocate Mr. Kariel for the petitioner has requested to extend the interim relief granted earlier so as to enable the petitioners to approach the higher forum. However, looking to the facts and circumstances of the case and the reasons assigned in the Judgment, the request is rejected.
Date : April 03, 2013 (Z.K.SAIYED, J.) SAS Page 19 of 19