State Of Gujarat Thro The Secretary &

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

LETTERS PATENT APPEAL No. 1109 of 2012

In

SPECIAL CIVIL APPLICATION No. 844 of 2012

With

CIVIL APPLICATION No. 9960 of 2012

In LETTERS PATENT APPEAL No. 1109 of 2012

For Approval and Signature:

HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE G.B.SHAH

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GOPAL K PATNI ­ Appellant(s) Versus

STATE OF GUJARAT THRO THE SECRETARY & 1 ­ Respondent(s)

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Appearance :

MR VAIBHAV A VYAS for Appellant(s) : 1, MR RAKESH R. PATEL, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, =====================================

CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI

and

HONOURABLE MR.JUSTICE G.B.SHAH

Date : 10/10/2012 ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE G.B.SHAH)

1. This Letters Patent Appeal has been filed by the appellant – original petitioner challenging order dated 15/06/2012, passed by the learned Single Judge of this Court in Special Civil Application No. 844 of 2012 by which, the learned Single Judge was pleased to dismiss the writ petition of the petitioner – appellant herein.

2. Facts in nutshell of the case of the appellant – original petitioner are that in pursuance to the advertisement issued by respondent No. 2 herein ­ Gujarat Subordinate Service Selection Board inviting applications for appointment to the posts of Armed and Unarmed Lok Rakshaks, the appellant – original petitioner, who belongs to SEBC category, made application for the same. It is the case of the appellant – original petitioner that though he had obtained 67 marks and though the cut­off marks prescribed for SEBC category were 59 marks, his case was not considered by the authorities and he was not appointed to the post in question. On inquiry being made by the appellant – original petitioner as to why his case was not considered, it was found that his case was not considered on the ground that he did not produce the Non Creamy Layer Certificate at the time of oral interview. He, therefore, challenged the action of the respondents by way of filing the aforesaid writ petition, which came to be rejected by the learned Single Judge. Being aggrieved by and dissatisfied with the order passed by the learned Single Judge, the appellant – original petitioner has preferred present Letters Patent Appeal praying for quashing and setting aside the aforesaid order passed by the learned Single Judge.

3. We have heard Mr. Vaibhav A. Vyas, learned counsel for the appellant – original petitioner and Mr. Rakesh R. Patel, learned Assistant Government Pleader, appearing for the respondents and have also gone through the impugned order.

4. The short question involved in the case on hand, which is a question of fact, is whether the appellant – original petitioner had produced the Non­Creamy Layer Certificate or not, which was required to be produced at the time of interview. On the aforesaid question of fact, the learned Single Judge has elaborately observed the same in the impugned order in Para 6 as under:

“6 I have perused the said Check List, which is produced at Annexure­R­II to the reply affidavit. The petitioner has placed his signature on the same. In the notes column it has been mentioned that though the petitioner had filled in the form in SEBC Category, he has not produced Non Creamy Layer Certificate. Thus, it is apparent that the petitioner has not produced the said Certificate at the time of interview. Assuming that the petitioner might have produced it on record after the interview was over, then also, the interview of the petitioner was scheduled on 7th October 2008 at 8 AM and the certificate, issued by the City Mamlatdar Officer, Ahmedabad was of even date. Assuming that it is issued on 7.10.2008, it would not have been physically impossible (sic) for the petitioner to go to Ahmedabad situated at 30 km away and brought it and produce it on the same day. Further, on the Check List there are remarks made by the committee members to the effect that since Non Creamy Layer Certificate was not produced, the case of the petitioner falls under general category, but looking to the age of the petitioner his case is time­barred. Thus, there is a disputed question of fact as regards production of Certificate at the time of interview by the petitioner. Merely because in the documents provided to the petitioner under RTI Act the certificate of Non Creamy Layer Certificate was present, it cannot be said that the same was produced at the time of interview. In that view of the matter, no interference is called for. The petition is devoid of merits. Hence, the same is dismissed.” (emphasis supplied)

5. The learned counsel for the appellant has drawn our attention to relevant portion of Para 6 of the affidavit in rejoinder filed by the appellant – original petitioner in Special Civil Application No. 844 of 2012, which reads as under:

“...In this regard, it is respectfully stated that on the date of the interview i.e. on 7.10.2008 I had reported for interview at the scheduled time i.e. 8 a.m. and had informed the concerned officer that I had went twice to the office of the City Mamlatdar, (lastly on 6.10.2008 at evening) but as the City Mamlatdar was on leave, I could not get the Non Creamy Layer Certificate and having regard to the fact that my interview was scheduled on 7.10.2008, I was informed by the office of the City Mamlatdar to collect the said Non Creamy Layer Certificate at the time of opening of the office in the morning on 7.10.2008. Upon so informing the concerned officer of the respondent Board, I requested him that since there was sufficient time to go for my turn as about 300 candidates were being called for interview, I may collect the said certificate from the office of the City Mamlatdar and accordingly, having regarding to my genuine difficulty, I was permitted to go and accordingly, I had collected the said certificate from the office of the City Mamlatdar and had returned for my interview and even at that time my turn for interview was yet to come and thereafter, when my turn came, I had produced the original Non Creamy Layer Certificate to the respondent Board and I was thereafter interviewed...”

5.1 It is submitted by the learned counsel for the appellant that the said above­referred case has not at all taken into consideration by the learned Single Judge. We have carefully considered the same but in our considered view, the said case is an afterthought and not at all believable more particularly when in Para 9 of the affidavit in reply it has been specifically averred that Check List, which was prepared before starting the interview, it was clearly mentioned that the appellant – original petitioner has not provided the Non Creamy Layer Certificate at the time of interview.

6. In view of the aforesaid clear position, we are in agreement with the order passed by the learned Single Judge and we do not find any merits in the appeal. This appeal fails and the same is accordingly dismissed along with Civil Application.

[ V. M. Sahai, J. ]

[ G. B. Shah, J. ]

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