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SCA/2727/2006 1/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2727 of 2006
With
CIVIL
APPLICATION No. 4643 of 2006
In
SPECIAL CIVIL APPLICATION No.
2727 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
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 ?
=========================================================
GOSWAMI
SUDARSAN JIVANGRI - Petitioner(s)
Versus
DIRECTOR,
PRIMARY EDUCATION & 2 - Respondent(s)
=========================================================
Appearance
:
MR
HASHIM QURESHI for
Petitioner(s) : 1,
MR JASWANT K SHAH AGP for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 20/01/2010
ORAL
JUDGMENT
1.0 The
petitioner has preferred the present petition
challenging the order passed by respondent Nos. 1 and 2 cancelling
the Caste Status Certificate and consequently his admission into
First Year PTC Court (Hindi Medium).
2.0
The facts of the
case appear to be that it is the case of the petitioner that the
petitioner belongs to Socially and Economically Backward Class
( SEBC for brevity).
On 30.05.2005, a
caste certificate was issued by the Taluka Development Officer,
Daskoi certifying that the caste of the petitioner is belonged to
SEBC and based on the said certificate, the petitioner applied for
admission to PTC and he was granted admission on 27.05.2005. It
appears that thereafter respondent No.2 summoned the petitioner for
verification of his case qua Caste Status Certificate vide letters
dated 03.08.2005, 13.09.2005 and 05.10.2005. As the petitioner has
changed his residence the letters could not be received by him.
Thereafter, after receiving information from the person residing
nearby vicinity, the petitioner remained present before respondent
No.2 but since it was the first occasion for the petitioner, he has
prayed for time upto 25.11.2005. The petitioner received
a letter dated 12.01.2006 from the respondent No. 1 intimating the
petitioner that his admission to the PTC has been cancelled
considering his Caste Certificate having been cancelled by respondent
No.2. The petitioner has not received any communication/order/letter
from either of the respondents. The petitioner thereafter preferred
Special Civil Application No. 1320 of 2006 before this Court which
was withdrawn by the petitioner in view of decision of respondent
No.2. The petitioner thereafter received decision from respondent
No. 2 on 18.01.2006 cancelling the Caste Status Certificate of the
petitioner. Hence, petitioner has approached this Court by
preferring the present petition.
3.0 The
petition is admitted vide order dated 20.03.2006 however, interim
relief was declined saying that it would amount to allowing the main
relief in the petition. The Court has also directed the respondents
to consider the application preferred by the petitioner opting for
‘General Category’ provided sears are vacant preferably prior to
commencement of examination. The petitioner thereafter preferred
Civil Application No. 4643 of 2006 for seeking compliance of the
order of this Court dated 20.03.2006 passed in the petition. The
Civil Application is heard today with the petition.
4.0 Heard
Mr. Qureshi, learned counsel appearing for the petitioner and Mr.
Jaswant K. Shah, learned Assistant Government Pleader for the
respondent State. Respondent No. 3 is served but no-one has appeared
on behalf of the respondent No.3.
5.0 Learned
advocate for the petitioner submitted that petitioner
is Goswami by Caste and Hindu by religion which was mentioned in his
School Leaving Certificate. The surname mentioned as ‘Giri’ is
admittedly ‘Goswami’. He further submitted that father of the
petitioner has been residing in Ahmedabad since 1960. The petitioner
has born and brought up in Gujarat.
5.1 Learned
advocate for the petitioner further submitted that prior to receipt
of the letter from the PTC college he did not receive any
communication/order/letter from either of the respondents. Thus, the
petitioner had preferred a petition and during the pendency of the
petition, the respondent No. 2 requested to supply copy of order
dated 20.12.2005 by which admission of the petitioner was cancelled.
Thereafter, respondent No. 2 issued letter of cancelling the
admission of the petitioner vide order dated 18.01.2006. Learned
advocate for the petitioner further submitted that respondent No. 2
has taken decision on 18.01.2006 while the petitioner’s admission was
cancelled on 12.01.2006. He further submitted that the decision was
taken behind the back of the petitioner relying upon the order
non-existent at the relevant time. Hence, grave injustice was caused
to the petitioner when his admission is cancelled as no decision was
taken by respondent No.2 and the petitioner’s Caste Status
Certificate was not cancelled on that day. Hence, the decision which
is taken behind the back of the petitioner is illegal.
5.2 Learned
advocate for the petitioner submitted that action on the part of the
respondents is pre-determined. Before respondent No.2 took decision,
admission of petitioner was cancelled by respondent No.1. This shows
the pre-meditated and pre-determined act on the part of the
respondents. Such action of the respondents is not sustainable in
law.
5.3 Learned
advocate for the petitioner further submitted that the petitioner had
admittedly produced before respondent No.2 a copy of School Leaving
Certificate of his uncle, a copy of the certificate issued by the
employer showing that the petitioner’s father was serving in a Mill
since 1975 and a copy of affidavit showing pedigree and other
relevant documents including the School Leaving Certificate of the
petitioner. It is also submitted that in the decision dated
18.01.2006, the dispute which is relied on by the authority is as to
whether the petitioner is residing in the State of Gujarat before
1978. He further submitted that affidavit of the mother of the
petitioner as well as his uncle showing that the petitioner and his
brothers were born in Gujarat. Therefore, if the petitioner’s case is
not considered it will cause grave injustice to the petitioner.
6.0 Learned
Assistant Government Pleader for the respondent- State authorities
contended that if the petitioner has taken any undue benefits of the
certificate issued on any incorrect record, then in that case the
petitioners have to face the consequence
of taking undue benefit, to which they were not legally entitled.
7.0 The
issue involved in the present petition is squarely covered by the
decision dated 12.03.2008 of this Court rendered in Special Civil
Application No. 7853 of 2005.
8.0 In
view of the above, the impugned order passed by respondent No.2 is
not interfered with, but with the observations that it would be open
to the petitioners to file appropriate civil suit for appropriate
declaration that the petitioner belongs to SEBC category. It is
further observed that if such a declaration is given by the Civil
Court, thereafter it would be open to the petitioners to move the
authority for issuance of the certificates in accordance with law.
9.0 It
is clarified that if the aforesaid suit is filed by the petitioners,
the Civil Court shall independently examine the matter and shall not
be guided by the order of this Court.
10.0 The
petition is partly allowed to the aforesaid extent. Rule made
absolute accordingly.
11.0
Since the petition is disposed of, Civil Application does not survive
and the same is disposed of accordingly. Rule is discharged.
(K.S.JHAVERI,
J.)
niru*
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