1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"(A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ directing respondent no.1 and 3 to consider the case of the petitioner as a candidate of the scheduled tribe and further directing to the respondent no.1 and 3 to give the benefit pertains to scheduled tribe and to consider the petitioner as selected candied for item/merit no 280 of the final result dated 26/4/2011 Annex At Annexure-L. in the interest of justice (B) Pending admission hearing and final disposal of this petition, It may be directed to the respondent no-1 and 3 to kept one post vacant for Scheduled tribe male candidate for next posting for the petitioner in the interest of justice.
(C) Any other appropriate relief grantable by this Hon'ble Court may kindly be granted in the interest of justice."
2. The facts emerging out of the record of the petition are that the petitioner vide application dated 7.6.2006 filed an application before the competent authority of the State Government i.e. Mamlatdar, Porbandar for certificate of Scheduled Tribe based upon the notification of the State Government dated 29.10.1956.
3. It further transpires that the respondent-Gujarat Public Service Commission issued a public advertisement in the local newspaper for recruitment for the post of Class-I and Class-II for Gujarat Civil Service on 26.6.2006. It appears that the petitioner applied for the same in the category of Socially and Educationally Backward Class pursuant to the said advertisement dated 26.6.2006. The application submitted by the petitioner was scrutinized by the respondent Commission and the petitioner was asked to appear in the preliminary examination which was scheduled on 25.2.2007. It transpires that the petitioner appeared in the said preliminary examination and thereafter, the petitioner was asked to appear in the final examination which was scheduled on 20.12.2007. It is the case of the petitioner that the Mamlatdar, Porbandar issued a certificate to the effect that the petitioner belonged to Scheduled Tribe dated 22.11.2007 which was received by the petitioner on 14.2.2008. It is further the case of the petitioner that on receipt of the same, the petitioner made an application to respondent No.1 to consider the candidature of the petitioner in the category of Scheduled Tribe on the basis of fresh certificate issued vide communication dated 26.2.2008. Thereafter, the petitioner was issued an entrance receipt for the final examination which was held between 19.5.2008 to 26.5.2008. The result of the said examination was declared by the respondent Commission on 26.11.2008, wherein the petitioner was declared as one of the successful candidate. The petitioner was thereafter called for oral interview on 22.12.2009 and the interview of the petitioner was taken on 19.4.2010. It appears from the record that the final result came to be declared by the respondent Commission on 13.5.2010. The petitioner again vide application dated 13.4.2011 requested the respondent Commission to consider the case of the petitioner in Scheduled Tribe category instead of Socially and Educationally Backward Class as a special case as considered in the case of one of the candidate - Parbat A. Chavda. It further transpires from the record that the respondent Commission modified the result on 26.4.2011. It is the case of the petitioner that the petitioner had secured 580 marks out of 1100 marks. However, both the applications filed by the petitioner, as aforesaid, were not considered. Being aggrieved by the same, the present petition is filed.
4. The respondent Commission has filed a detailed affidavit denying the contentions raised in the petition by the petitioner. The affidavit filed by the respondent Commission is also adopted by the State Government as submitted by Ms. Sangeeta Vishen, learned AGP for respondent Nos.2 to 4.
5. Heard Mr. Deepak P. Sanchela, learned advocate for the petitioner, Mr. Dipak G. Shukla, learned advocate for respondent No.1 Commission and Ms. Sangeeta Vishen, learned AGP for respondent Nos.2 to 4.
6. Mr.
Deepak P. Sanchela, learned advocate for the petitioner has taken this Court through the factual matrix of the matter and has contended that in a similarly situated case i.e. in the case of Parbat A. Chavda, the respondent Commission has considered the case, pending the recruitment process and has considered the candidature of Parbat A. Chavda as belonging to Scheduled Tribe, even though the certificate to that effect was produced after the application was made by Parbat A. Chavda. The learned advocate for the petitioner submitted that thus, the decision taken by the respondent Commission, in not considering the case of the petitioner as belonging to Scheduled Tribe is arbitrary and violative under Article 14 of the Constitution of India. It is submitted that the petitioner had informed well in advance about the grant of certificate by the competent authority, namely, Mamlatdar, Porbandar and has also sent a copy of the said certificate whereby the petitioner is declared to be belonging to the Scheduled Tribe. Still however, the case of the petitioner is not considered by the respondent Commission and has considered the case of Parbat A. Chavda. It is submitted that therefore, the prayers prayed for in the petition deserves to be granted. No further contention is raised by the learned advocate for the petitioner.
7. As against this, Mr. Dipak G. Shukla, learned advocate for respondent No.1 Commission has taken this Court through the factual matrix of the matter in detail and has pointed out that the case of the petitioner is considered by the Commission in accordance with the regulations and in accordance with law. It is submitted that the case of Parbat A. Chavda and the case of the petitioner is quite different. It is submitted that Parbat A. Chavda has submitted the certificate of his belonging to Scheduled Tribe at the very initial stage of the recruitment process, whereas the petitioner, even though now claims to be belonging to the Scheduled Tribe, had not declared the same before the respondent Commission and on the contrary had preferred to being in the category of SEBC. It is submitted that the case of the petitioner that earlier by communication dated 26.2.2008 (Annexure-G to the petition), the petitioner sent a copy of the certificate issued by the competent authority, namely, Mamlatdar, Porbandar belonging to the Scheduled Tribe is also not true and that the respondent Commission has never received the same. Mr. Shukla relying upon the record of this petition further submitted that at no point of time, the petitioner had informed the Commission that Mamlatdar, Porbandar has issued a certificate to the effect that the petitioner belongs to the Scheduled Tribe. It is submitted that even after receipt of the said certificate, the petitioner has filled in new form on 31.3.2008 wherein also, he has mentioned that he belongs to SEBC category. Mr. Shukla, therefore, submitted that in fact the petitioner for the first time vide communication dated 13.4.2011 made the application as averred in the petition. Mr. Shukla further pointed out that it would be evident from the record itself that on one hand, the petitioner has stated that the application dated 28.2.2008 was sent by simple post whereas for the first time in the rejoinder affidavit, the petitioner has come out with a new case, that it was sent under the postal certificate. Mr. Shukla submitted that thus, the petitioner himself for the reasons best known to him opted for being considered as a candidate pursuant to the advertisement dated 26.6.2006 in the category of SEBC and after the result was declared, as the petitioner found other meritorious candidates in the category of SEBC, he has sent communication dated 13.4.2011. It is submitted that the petition is misconceived and the case of the petitioner cannot be considered at the stage when the recruitment process is over and the recommendations have been made by the Commission to the State Government. It is, therefore, submitted that the petition is devoid of any merit and the same deserves to be rejected in limine.
8. Ms.
Sangeeta Vishen, learned AGP for respondent Nos.2 to 4 has adopted the arguments made by Mr. Dipak G. Shukla, learned advocate for respondent No.1 Commission and has submitted that the petitions does not require any consideration and deserves to be rejected in limine.
9. Considering the rival submissions made by the learned advocates appearing for the respective parties, it transpires from the record that the respondent Commission issued a public advertisement on 26.6.2006 for combined competitive examination for recruitment to the posts in Gujarat Civil Services, Class-I and Class-II for 283 posts. It also transpires from the record that the respondent Commission had thereafter issued corrigendum on 10.11.2006 and certain posts were to be added in Class-I and Class-II. After the said corrigendum, the total posts advertised were 317. The petitioner submitted an application along with the relevant documents such as school leaving certificate, marksheet, etc. It is also pertinent to note that the petitioner had applied in the category of SEBC i.e. Category No.2. It also transpires from the record that the petitioner thereafter submitted application form for main written examination, wherein the petitioner has mentioned that he belongs to SEBC. Such form was filed by the petitioner on 31.12.2007. Ultimately, the petitioner appeared in the main written examination and thereafter, in the oral interview, as aforesaid. It has also come on record that because of some litigation by way of filing Special Civil Application Nos.15593 of 2008, 2375 of 2009, 5142 of 2009 and subsequently, Letters Patent Appeal No.388 of 2010, personal interviews were delayed and were actually held between 18.1.2010 to 4.5.2010 for all 1090 candidates who had cleared the written test. The result of the personal interviews were declared on 13.5.2010 and the merit list of 316 successful candidates was published, wherein the petitioner was declared unsuccessful. It also transpires from the record that after the rechecking of marks was done, the recommendation for appointment has already been made by the respondent Commission to the State Government on 29.7.2010. It further transpires that at the instance of the State Government and more particularly, respondent No.3, the Commission was requested to consider the question of rectifying the result declared by the Commission on 13.5.2010 in light of the judgments of the Hon'ble Supreme Court. On such a request being made by the State Government, the respondent Commission considered the provisions of the Rules i.e. Gujarat Civil Services (Class-I and Class-II) Competitive Examination Rules, 2000 as well as the principles laid down by the Hon'ble Supreme Court and ultimately, the revised result came to be declared on 26.4.2011 and the names of the successful candidates came to be recommended for appointment to the State Government on 28.4.2011.
10. It is pertinent to note that firstly by letter dated 14.10.2010, the petitioner requested the respondent Commission to prepare waiting list so that if the vacancies are not filled in, other eligible candidates may be available. However, in the said communication dated 14.10.2010, the petitioner did not mention that vide communication dated 26.2.2008, the petitioner has submitted the certificate issued by the Mamlatdar, Porbandar for Scheduled Tribe issued on 22.11.2007. As far as, the only contention which is raised by the learned advocate for the petitioner that the case of the petitioner is discriminated and that in case of one Parbat A. Chavda, the Commission has permitted him to submit his certificate of belonging to the Scheduled Tribe later in time and that the Commission has acted in an arbitrary manner while considering the case of the petitioner, if examined on the basis of the record of the petition, it transpires that the said Parbat A. Chavda made an application on 2.9.2006 and the same was received by the Commission on 5.9.2006. It is pertinent to note that even though the date of the said application made by Parbat A. Chavda is mentioned in the said communication is 2.9.2007, the stamp receipt of the respondent Commission indicates that it is dated 2.9.2006. Mr. Shukla, learned advocate for the respondent Commission made available the original record of the Commission and has submitted that the date which is mentioned in the said communication is a wrong date. Whereas the said application was received by the Commission on 5.9.2006 and the same was processed by the Commission on 14.9.2006 and accordingly, vide communication dated 26.9.2006, the said Parbat A. Chavda was informed that the respondent Commission had considered his case as Scheduled Tribe category candidate. It is also evident from the record that the said Parbat A. Chavda filled in the form for main written examination on 29.12.2007, wherein he has mentioned that he belongs to Scheduled Tribe. Whereas while comparing the case of the petitioner, the petitioner also filled in the form for main written examination on 31.12.2007, wherein he has mentioned that he belongs to SEBC. It also transpires from the communication dated 14.10.2010 addressed by the petitioner to the Secretary of the respondent Commission requesting him that the waiting list may be prepared. However, in that communication also, it is nowhere mentioned that the petitioner had sent certificate of his belonging to the Scheduled Tribe vide communication dated 26.2.2008. In addition to that, on bare reading of the communication dated 13.4.2011, it reveals that the petitioner had informed the Secretary of the respondent Commission that he had sent a copy of the certificate of his belonging to the Scheduled Tribe by ordinary post. In the said communication itself, the petitioner has also mentioned that at the time of interview, he had submitted the said certificate of his belonging to the Scheduled Tribe also is not correct. It transpires from the record that the petitioner was interviewed on 19.4.2010. Even when the form was submitted at the time of main entrance examination on 31.12.2007, the petitioner has stated in column No.4 of the said application at Annexure-RII to the petition (Page 122) that he belongs to SEBC class. Thus, the case of the petitioner that it was sent by UPC is contrary to his own submission and his communication dated 13.4.2011, as aforesaid. Even while filling in the form on 31.12.2007, the petitioner has, on the contrary, stated that he belongs to SEBC class. It also transpires from the record that Parbat A. Chavda submitted the certificate to the effect that he belongs to Scheduled Tribe on 2.9.2006, which is received by the respondent Commission on 5.9.2006. Whereas the petitioner has submitted such a form, as per the record, only for the first time on 13.4.2011 when the recruitment process was completed. Therefore, the contentions raised by the petitioner that the petitioner is discriminated is without any basis.
11. The case of the petitioner that he has sent the certificate issued by the competent authority i.e. Mamlatdar, Porbandar to the effect that the petitioner belongs to Scheduled Tribe category by a communication dated 26.2.2008 (Annexure-G to the petition) by simple post is denied by the Commission in the affidavit. It is the case of the Commission that no such communication is received by the respondent Commission. It transpires from the conduct of the petitioner itself that he preferred to remain in the category of SEBC till the results were declared, as aforesaid. Even while filling in the form on 31.12.2007, the petitioner himself has declared that he belongs to SEBC category and while requesting the respondent Commission to prepare the waiting list vide communication dated 14.10.2010, the petitioner has not mentioned that he has sent the certificate, as averred in the present petition. The petitioner for the first time in rejoinder has tried to change his case that the certificate of his belonging to Scheduled Tribe sent by UPC vide communication dated 26.2.2008 is not at all believable. The contention raised by the petitioner that his case is similar to the case of Parbat A. Chavda, as aforesaid, is without any basis and contrary to the record of the Commission and on examining the record of the Commission, it reveals that no discriminatory treatment is given to the petitioner. The Commission has acted in a bonafide manner as per the Rules. It transpires from the record that the recruitment process is already over and recommendation is already made by the Commission to the State Government. Hence, the petitioner cannot now be considered as a candidate belonging to Scheduled Tribe. The petition is, thus, misconceived and the same is hereby rejected in limine with no order as to cost. Notice discharged.
[R.M.CHHAYA, J.] mrpandya Top