Heard learned counsels for the parties. 1. Looking to the controversy as it being in a narrow compass the request of counsel for the petitioner was accepted to decide the matter finally and hence as the pleadings are over it was inquired of learned AGP as to whether he would waive service of rule, which he fairly submitted that he will waive. Hence RULE. Rule is waived by learned AGP Mr. Rahul Dave on behalf of respondent No.1 State.
2. The petitioner has approached this Court by way of this petition invoking Article 14, 16 and 226 of the Constitution of India, seeking declaration that the petitioner is eligible and entitled to be treated as SEBC Candidate and be given all the opportunities for further processing his candidature for the post of Sub Inspector, Class-III in Prohibition & Excise Department pursuant to the advertisement No.7/10 dated 7/5/2010 and other incidental benefits.
3. Facts in brief leading to filing this petition as could be gathered from the petition deserve to be set out as under.
The respondent issued advertisement no. 7/10 on 7/5/2010 inviting applications for 50 posts of Sub Inspector, Class-III in Prohibition & Excise Department. Out of 50 vacancies 13 vacancies were earmarked for Socially & Educationally Backward Class (herein after referred to as ‘SEBC’ for the sake of brevity). SEBC candidates were to submit non-creamy layer certificate for the year ending on 31/3/2010 which would have been issued by Mamlatdar from 1/4/2010 to 29/5/2010. Petitioner accordingly obtained certificate of non-creamy layer certificate issued on 11/5/2010 from the concerned Mamlatdar, Deodar, after filing requisite documents for his satisfaction. Petitioner submitted his application along with said certificate on 12/5/2010 and the acknowledgment was issued indicating that the application was received. Petitioner received call letter on 22/2/2011 for appearing at preliminary examination scheduled on 6/3/2011 and was assigned seat no. P- 708116. Petitioner succeeded as per the result declared on 7/7/2011 and thus he was qualified for appearing for physical test. The petitioner passed physical test also qualifying himself for main written examination which was held on 16/10/2011, the result whereof was declared on 24/11/201l. Petitioner succeeded there also. Petitioner received call letter dated 24/8/2012. Petitioner was to produce original certificate including certificate of non-creamy layer obtained during period from 1/4/2010 to 19/5/2010. Petitioner attended respondent no.2’s office on 13/9/2012 with all his original testimonials, including original of non-creamy layer certificate. The concerned authority of respondent no.2 raised oral objection as petitioner's name appearing as “Rajgor” instead of “Gor” in the said certificate dated 11/5/2010. The petitioner's attempt to explain that he has been carrying the surname as ‘Gor’ from the beginning in his school records, certificates and mark- sheets but he belongs to sub-caste Hindu Brahmin ‘Rajgor’ as indicated in his school leaving certificate itself, but the respondent no.2 did not permit the petitioner to appear in the oral interview and obtained an application from petitioner that he will bring relevant documents within 3 days so as to satisfy respondent no.2 about said aspect. However, as mentioned in the petition, respondent no.2 denied the petitioner for giving any such chance. The petitioner approached respondent no.2 on 15/9/2012 along with relevant documents and requested in writing by letter dated 15/9/2012 that he be given a chance of oral test on 15/9/2012 or 17/9/2012. Respondent no.2 denied the same, therefore once again petitioner approached on 17/9/2012 with all the relevant records and submitted an application in writing that as per the list of Socially Backward Class of Government of Gujarat the caste “Rajgor” appears at Sr. No. 144 and therefore petitioner was entitled to be considered for oral test, selection and appointment. The relevant documents lead to one and the only conclusion that the person in whose favour the certificate is issued with a clarification is the same one and so far as the identify and belonging of the petitioner is concerned it was not questioned as the original caste certificate indicating petitioner belonging to SEBC is yet not been cancelled in any manner.
4. Learned counsel appearing for the petitioner invited this Court’s attention to the documents annexed with the petition and submitted that the certificate of SEBC issued by the competent authority in favour of the petitioner is not challenged or is not in any manner doubted by anyone. The certificate of non-creamy layer issued by the competent authority in the first instance on 11/5/2010 is based upon the documentary evidences produced. The entire controversy as raised is on account of the discrepancy in the surname as his father’s surname is ‘Rajgor’ in the SEBC certificate also candidate’s surname is shown to be “Rajgor” and for the first time in non-creamy layer certificate without making any reference to the surname SEBC certificate is issued which ought not to have been challenged in any manner as it is not the case of the respondent in any manner that the petitioner is not the same person in whose favour SEBC certificate is inuring. The certificate issued by the authority indicating that the petitioner belonged to SEBC category though contains surname “Rajgor” but not containing the surname “Rajgor” in non-creamy layer certificate should not have been objected so as to deprive the petitioner of his precious opportunity of competing in the examination or interview. The denial to the petitioner for appearing in the interview appears to be non-application of mind and hence the same is assailed by way of this petition.
5. The Mamlatdar concerned issued another certificates and in that certificate dated 13/9/2011 also it is indicated that the petitioner is belonging to non-creamy layer and therein in unequivocal terms all details are mentioned which once again was clarified by the Mamlatdar under his certificate dated 14/9/2012 which should have put the controversy at rest as the competent authority who has clarified unequivocally qua the petitioner being eligible to compete as SEBC candidate is not now been to be challenged or questioned by the concerned authorities.
6. Learned AGP appearing for the respondent submitted that the clear discrepancy in the name of the candidate and the certificate issued would justify raising doubts in mind of the candidate and when it is clear that the petitioner's candidate was containing his name to be Gor Dipakkumar Prabhashankar and not as Dipakkumar Prabhashankar Rajgor then the non-creamy layer certificate should not have been accepted rightly as it did not match with the certificates.
7. Learned AGP submitted that the subsequent clarification also would be of no avail as the clarifications would amount to improving upon the candidature’s detail and as such it would amount to relaxing condition in the advertisement where under it was specifically mentioned that the non-creamy layer certificate is to be obtained and produced which is issued within the stipulated time period. The discrepancy in the mind itself was sufficient to deny the opportunity of appearing in the oral test to the petitioner.
8. Learned AGP relying upon the decision of this Court in case of Govaliya Jogidasbhai Nagbhai Vs. Secretary/Dy Secretary in Special Civil Application No. 13378/2012, decided on 5/11/2012 (Coram: K.S. Jhaveri, J) and submitted that there the discrepancy in the name of the candidate was held to be sufficient for denying him the benefit, the present case is also identical and hence the Court in this matter may not interfere in any manner.
9. The fact that the school record all along contains petitioner’s name as “Gor Dipakkumar Prabhashankar” and even the SEBC certificate also contains petitioner's name of “Rajgor Dipakkumar Prabhashankar”, there was no question of doubting certificate of SEBC as the SEBC certificate is containing name which is also shown to be that of his father’s surname. Whereas in non-creamy layer certificate surname is mentioned and the fact remains that in the candidature submitted by the petitioner his surname is shown to be ‘Gor’, that descripancy could not have been overlooked by the authority or else there would have been chances of giving undue benefit to undeserving candidate.
10. Learned AGP invited this Court’s attention to the averments made in reply affidavit in para no. 6 & 7 and contended that the denial to opportunity of appearing to the petitioner is not only on account of discrepancy in non-creamy layer certificate but also on account of SEBC certificate as in SEBC certificate his name is shown to be “Rajgor” whereas his candidature is in the name of “Gor”, therefore when the petitioner has failed to pass the acid test of identity his application was rightly rejected as his identity was not proved beyond doubt.
11. The Court has perused the documents produced on record and heard learned counsels for the parties. The following indisputed aspects emerging there from needs to be set out as under.
(1) The petitioner has put up his candidature for the post wherein it is clearly indicated that his surname is “Gor” and along with the candidature and application relevant documents were adduced indicating that the petitioner belonging to SEBC and in that certificate of SEBC which is submitted surname is shown to be “Rajgor”.
(2) The petitioner has succeeded in 3 preliminary tests and has qualified himself to be eligible for appearing in the interview. The advertisement did contain the fact that the scrutiny of the certificate would be carried out at the time of oral interview.
(3) The SEBC certificate is issued by the competent authority wherein the petitioner's name is shown to be “Rajgor Dipakkumar Prabhashankar” and the non-creamy layer certificate contains name as “Dipakkumar, son of Shri Rajgor Prabhashankar”.
(4) The clarificatory certificate issued by Mamlatdar contains unequivocal evidence of identity of the petitioner. It goes without saying that the Mamlatdar being the revenue authority is also at places acting as executive magistrate entitled to issue domicile and other certificates of this nature.
(5) The SEBC certificate and two certificates of non-creamy layer coupled with certificate in form of clarification issued by Mamlatdar unequivocally lead to one and only conclusion that there exists no doubt qua the fact that petitioner happened to be son of Prabhashankar Rajgor and it is also undoubtedly proved that “Rajgor” is included in SEBC category.
12. Against the factual backdrop of aforesaid aspects, this Court is to examine the rival contentions raised by counsels for the parties. The authority was not wholly unjustified in raising doubts qua petitioner's certificates as both the certificates admittedly has difference in name, so far as the surname is concerned. If one has to take that alone into consideration then there would be justification on the part of the authority in rejecting the candidate of the petitioner. However, here is the case wherein the identity of the petitioner to be of son of Prabhashankar Rajgor is nowhere at all challenged and naturally this question is not falling in the realm of scrutiny by the authority which is essentially entrusted with the task of conducting examination. But subsequent production of certificates, in my view, could not have been brushed aside as those certificates were amply indicative of the fact that there remains no doubt qua identity of the petitioner. In State of Gujarat the surname of father and son are many a time not the same or similar and therefore this kind of discrepancy are bound to occur. The discrepancy of such nature, if occurred, then, little more caution and care was required to be depicted on the part of the authorities before brushing aside the candidature of the petitioner. The respondents have even in the present proceedings not in any manner doubted that the petitioner's father is not belonging to SEBC nor has it been doubted that the petitioner is not belonging to SEBC. It is only on account of discrepancy on mentioning of surname that this controversy is raised. This Court is of the view that when there is ample evidence available on record then the petitioner could not have been denied an opportunity of being interviewed. At this stage Court inquired of learned AGP, who under instructions informs the Court that appointments are yet not been issued to any candidate and selection list itself is not finalised. The Court hasten to add here that the action of the authority in doubting the certificate is not wholly unjustified. The peculiar facts of the present case persuade this Court to hold in favour of the petitioner for issuing appropriate direction while partly allowing this petition.
13. At this stage it is to be stated that the decision cited at the Bar is of no avail to the respondents as there the name of the petitioner itself was not found to be correct. Whereas in the instant case looking to the evidences on record and the clarificatory evidence in form of certificate from Mamlatdar, that is the authority who can issue identity certificate, the controversy could have rested there only. Therefore the judgment cited at the Bar is not avail to the respondents.
14. Hence the following directions are passed:-
The authorities are at liberty to make further inquiries at their end in respect of identity of the petitioner. If such inquiry is chosen to be conducted, then, the same shall be completed within 15 days (fifteen days) from the date of receipt of this order, and if the inquiry result is not against the petitioner, then, he be given an opportunity of appearing in the interview that may be conducted and after assigning him appropriate marks after he is permitted to appear in the interview on being found that there is no further question qua his identity, declare the final result based there upon.
15. Within this direction, petition is partly allowed. Rule is made absolute to the aforesaid extent. However there shall be no order as to costs. Direct service permitted.
(S.R.BRAHMBHATT, J.) vgn