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SCA/16002/2008 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16002 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
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?
=========================================================
JOSHI
BHOOMI PRATAPBHAI BEING MINOR THROUGH HER FATHER AND - Petitioner(s)
Versus
SECRETARY-ADMISSIONCOMMITTEEFORPROFESSIONAL&DIPLOMA
& 3 - Respondent(s)
=========================================================
Appearance
:
MR
AR THACKER for
Petitioner(s) : 1,
MS CHETANA M. SHAH ASST.GOVERNMENT PLEADER for
Respondent(s) : 1 - 2.
RULE SERVED BY DS for Respondent(s) : 1 -
3.
MR SUNIT SHAH WITH MR NV GANDHI for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 02/03/2010
ORAL
JUDGMENT
1. The
petitioner has filed this petition under Article 226 of the
Constitution of India praying for quashing and setting aside the
order passed by the respondent No.1-Admission Committee for
Professional and Diploma Courses, Gujarat State, dated 16.12.2008.
The petitioner has also prayed for a direction to the respondent
No.3-College to permit the petitioner’s daughter-Bhoomi, to appear in
the first semester examination on and from 01.01.2009 and allow her
to continue study in respondent No.3-College.
2. During
the pendency of this petition and pursuant to the order passed by
this Court in Civil Application No.9058/2009 on 27.08.2009, the
petitioner has made one more prayer in the petition seeking interim
direction to the respondent No.4 to issue the caste certificate to
the petitioner on the basis of the letter dated 13.08.2009 addressed
by Vice President of Rajgor Community to respondent No.4.
3. Earlier
this Court vide order passed on 30.12.2008, granted ad-interim relief
in favour of the petitioner and the petitioner’s daughter was
permitted to appear in the examination without creating any
additional equity in her favour, subject to further orders that may
be passed by this Court. Thereafter, on 04.03.2009, further order was
passed by this Court directing this petition to be heard with Special
Civil Application No.124/2009. Special Civil Application No.124/2009
was heard and disposed of on 18.08.2009 on the basis of the order
passed by the Chair Person, Commission for the Other Backward Classes
dated 20.05.2009 certificate granted by the Deputy District Director
(Vikasati Jati), Rajkot dated 06.07.2009, whereby it was certified
that the said petitioner belonged to Rajgor Community and to the
Socially and Educationally Backward Class(SEBC).
4. Since
the present petition was ordered to be heard along with Special Civil
Application No.124/2009 and since the said petition is already
disposed of, the present petition is taken up for final disposal.
Heard Mr.A.R. Thacker for the petitioner, Ms. Chetana Shah for the
respondent Nos.1 & 2 and Mr.Sunit Shah with Mr.N.V. Gandhi for
the respondent No.4. Despite service of notice, nobody appears on
behalf of the respondent No.3.
5. The
dispute between the parties is that after filing of the petition and
during the pendency of this petition, survey was undertaken by the
respondent No.4. The petitioner could not appear before the
Commission during the course of survey and hence the petitioner’s
application could not be considered. As against the stand of the
Commission, the petitioner’s contention is that the petitioner, in
fact, sent an application to the leader of the community. However,
inadvertently or through oversight the application could not be
forwarded and because of that the petitioner’s application was not
considered during the course of survey. However, the petitioner did
appear before the Commission, but the petitioner was asked to
approach through the leader of the community. Immediately on the next
day, the leader of the community has sent representation but that has
not been considered till this date. It is also the case of the
petitioner that the other members of the petitioner’s family were
issued necessary caste certificate. However, the petitioner’s case
has not been considered. It is, therefore, the case of the
petitioner that if the application forwarded through the leader is
considered, the petitioner would certainly get the caste certificate
as requested for.
6. The
stand taken by the petitioner was strongly opposed by Mr.Sunit Shah,
learned advocate appearing for the Commission and detailed affidavit
was filed on behalf of the respondent No.4-Commission. It was stated
therein that the caste certificate was issued in favour of those
persons, who were surveyed by the Commission and whose names appeared
in survey report. This process of 100% survey was in consonance with
the observations made by the Hon’ble Apex Court in the case of Indra
Sawhney reported in AIR 1993 SC 477. It is further submitted
that the leaders of Rajgor Community had provided information for
about 4661 families and more than 60% of the members of the Rajgor
Community were left out and hence as an exception, order was passed
on 23.07.2008 for re-survey. Pursuant to the said order, leaders of
the community have submitted a list of 9837 families of Kathi Gor
and 3305 families of Ahir Gor . Accordingly survey was carried
out and report was submitted. It was further stated that the
petitioner’s name was not included by leaders of the community at
the time when survey was carried out and completed. Despite the fact
that the petitioner was aware about this survey, the petitioner did
not make any effort to verify and ascertain whether or not his
daughter’s name was included in the list submitted by community
leaders. It is therefore submitted that now, as the survey has been
carried out practically, that too on case to case basis, no
permission should be issued by this Court directing the Commission to
undertake this exercise again and to grant the certificate.
7. Having
heard the learned counsel appearing for the parties and having
considered the documents produced on record and in view of the fact
that the petitioner’s daughter has continued her study on the basis
of interim order of this Court and the petitioner’s other family
members are enjoying the caste certificate and only because of some
misunderstanding or mistakes on the part of the caste leader, the
petitioner’s application could not be forwarded and hence the same
was not considered, the petitioner or his daughter should not suffer.
It is therefore in the interest of justice that the petitioner’s case
is required to be considered. The Court is taking this view looking
to the peculiar facts of this case and that too, when the petition
was pending before this Court when the survey was undertaken by the
Commission. Hence without treating this case as any kind of
precedent, the respondent No.4-Commission shall consider the
petitioner’s case in light of the letter forwarded by the Vice
President of the Rajgor Community on 13.08.2009 in relation to the
petitioner’s daughter and issue the necessary caste certificate in
her favour at an early date. Till such exercise is over, interim
protection granted by this Court would continue. If any adverse view
is taken by the Commission, the same shall not be implemented for
the period of 15 days from the date of communication of such decision
and it shall be open for the petitioner to challenge such decision
before this Court by way of a substantive petition, if so required.
8. With
this direction and observation, this petition is, accordingly,
disposed of. Rule is made absolute to the above extent without any
order a to costs.
(K.A.Puj,J.)
rakesh/
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