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LPA/612/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 612 of 2008
In
SPECIAL
CIVIL APPLICATION No. 7389 of 2008
With
LETTERS
PATENT APPEAL No. 613 of 2008
In
SPECIAL
CIVIL APPLICATION No. 7388 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/-
HONOURABLE
MR.JUSTICE G.B.SHAH
Sd/-
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
No
2
To
be referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
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 ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================
THAKORE
BHALABHAI UMABHAI
Versus
STATE
OF GUJARAT AND OTHERS
=========================================Appearance
:
MR KB
PUJARA for
the Appellant
MR NJ SHAH, ASSTT GOVERNMENT PLEADER for Respondent
Nos.1 - 2
MR HS MUNSHAW for Respondent
No.3
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 09/05/2011
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We have
heard learned counsel Mr. K.B. Pujara for the appellant, learned
Assistant Government Pleader Mr. N.J. Shah for respondent Nos.1 and
2, and learned counsel Mr. H.S. Munshaw for respondent No.3.
2. These
Letters Patent Appeals have been filed challenging order passed by
learned Single Judge dated 14.5.2008, passed in Special Civil
Application No.7388 of 2008 and Special Civil Application No.7389 of
2008.
3. The
facts are that the appellants are blind. They applied for recruitment
for the post of Vidhyasahayak (Music) pursuant to the advertisement
dated 17/19.4.2007. Pursuant to the said advertisement, blind
candidates were eligible and they were to be given priority over the
other candidates. The appellants filled in their forms, wherein they
claimed that they belonged to Socially & Economically Backward
Class (SEBC). But, in support of their claims, the appellants did
not file any certificate as the appellants were under impression that
since blind persons have got priority, as per the advertisement, they
would be selected. However, since the appellants did not submit their
caste certificate along with the applications, the respondents
treated the appellants to be in Open General category and there, the
appellants could not succeed.
4. It is
admitted to the counsel for the respondents that had they been
considered in SEBC category, they would have secured first and
second position respectively.
5. The
learned counsel for the appellants has alleged in para 5 of the writ
petitions that other less meritorious candidates have been given
appointment in SEBC category. It has been stated that the appellants
claimed that five candidates had also not submitted their SEBC
certificates along with their applications, but their certificates
were subsequently accepted by the respondents at the time of
interview on 2.5.2008. This fact was denied by learned counsel Mr.
H.S. Munshaw in the affidavit-in-reply filed on behalf of respondent
No.3, which is taken on record. But, in para 2 itself, respondent
No.3 has admitted that one candidate Mr. Bakul Dhrangi belonging to
Scheduled Tribe category had also not submitted his caste
certificate, but he was permitted to produce his caste certificate of
Scheduled Tribe category at the time of interview.
6. On the
argument of the learned counsel for the parties, we are of the
considered opinion that once the respondents permitted Mr. Bakul
Dhrangi to submit his caste certificate at the time of interview,
though he had not submitted the caste certificate along with his
application, similar being the case of the appellants in SEBC
category, the respondents were required to accept the caste
certificates submitted by the appellants at the time of interview and
they could not discriminate the appellants only on the ground that
the caste certificate of Scheduled Tribe category could be accepted
at the time of interview. This reason given by the respondents is
not acceptable to us and the action of the respondents is violative
of Article 14 of the Constitution of India in view of the fact that
in SEBC category, the appellants have received the highest marks and
as a matter of fact, they are first two toppers who are blind but
have topped even in SEBC category in spite of their handicap.
7. In the
result, both these appeals succeed and are allowed. Order of the
learned Single Judge dated 14.5.2008 passed in Special Civil
Application No.7388 of 2008 and Special Civil Application No.7389 of
2008 is set aside. The respondents are directed to consider the caste
certificates of the appellants in SEBC category and accept their
caste certificates and adopt the same procedure for selection which
has been adopted in the cases of other candidates. In case, the
appellants are found successful, they shall be considered for
appointment. The aforesaid exercise shall be completed by the
respondents on or before 30th June 2011.
Sd/-
(V.M.
SAHAI, J.)
Sd/-
(G.B.
SHAH, J.)
omkar
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