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2016 DIGILAW 892 (GUJ)

JESANGBHAI DHULABHAI WAGHELA v. STATE OF GUJARAT

2016-04-25

A.S.SUPEHIA, ANANT S.DAVE

body2016
JUDGMENT : A.S. SUPEHIA, J. 1. Being aggrieved by the order dated 12.11.2009 passed by learned Single Judge in Special Civil Application No.8420 of 2004, the Appellant has preferred the present Letters Patent Appeal, whereby the learned Single Judge has dismissed the petition challenging the Order dated 29.06.2004 passed by respondent No.3Commissioner, Schedule Tribe Development, canceling his caste certificate. 2. The facts which are essential to be stated are as under: 3. The appellant-petitioner was appointed as Additional Assistant Engineer vide Office Order No.25/84 dated 27.08.1984. The order appointing him to the said post specifically states that the appointments are made on the reserved category post of Scheduled Tribe, which were carry forwarded from the earlier block. The competent authority after due verification of the educational qualification as well as the caste certificate issued the appointment order. A seniority list was published by the concerned department, which is produced at Annexure-F to the petition in which the name of the petitioner figures at Sr. No.220. It seems that the junior to the petitioner, in the year 1984, made an application to respondent No.3 questioning the validity of the caste certificate of the petitioner. 4. The Respondent No.3 initiated an inquiry on the application made by one Naresh Chaudhary. A Committee was also formed in this regard. The petitioner appeared before the committee on 21.05.2014 along with all the documents. However, it is the case of the Appellant-petitioner that the members of the committee did not allow him to represent his case. The Appellant submitted written application along with documents vide letter dated 25.05.2004. By the impugned order dated 29.06.2004 passed by respondent No.3, the caste certificate dated 12.06.1980 certifying the Appellant belonging to Schedule Tribe, by Mamlatdar, Jambusar, was cancelled. The same was challenged before this Court by way of Special Civil Application No.8420 of 2004. The learned Single Judge dismissed the petition by recording that the petitioner could not establish the fact that he belongs to Scheduled Tribe. It was further observed that he could not produce any evidence, except the said certificate to show that he belongs to Scheduled Tribe. Learned Single Judge has also relied upon the panchnama showing that he did not belong to Kachchh District and was also not a migrant from the said region. Reliance was also placed on the decision of the Apex Court in the case of Kumari Madhuri Patil & Anr. Learned Single Judge has also relied upon the panchnama showing that he did not belong to Kachchh District and was also not a migrant from the said region. Reliance was also placed on the decision of the Apex Court in the case of Kumari Madhuri Patil & Anr. Vs. Additional Commissioner, Tribal Development and Ors . reported in AIR 1995 SC 94 . 5. Various contentions are raised by Shri Dharmesh Vyas, learned advocate appearing for the appellant-petitioner challenging the order of learned Single Judge as well as the order dated 29.06.2004 passed by respondent No.3 canceling the caste certificate dated 12.06.1980. He has further submitted that the impugned order passed by respondent No.3 is against the natural justice and without any documentary evidence and, therefore, the same is required to be quashed and set aside. Further, a submission is advanced that the relevant documents produced by the father of the petitioner at the time of issuance of certificate dated 12.06.1980 and Register of 1980 were destroyed. Mamlatdar, Jambusar, without verifying the record, has again issued certificate dated 18.11.2003 in absence of the record wherein it is stated that the certificate issued by the former Mamlatdar dated 12.06.1980 was incorrect. The said certificate dated 18.11.2003 speaks non-availability of the earlier Register. 6. Ms.Vacha Desai, learned Assistant Government Pleader appearing for the respondent authorities, has supported the order passed by learned Single Judge and the order passed by the competent authority dated 29.06.2004. She has also stated that the order canceling the caste certificate was made after due verification and scrutiny made by the concerned authorities, hence there is no reason to interfere with the order passed by learned Single Judge as well as the order passed by respondent No.3. She has further submitted that the “Vaghari” Community is considered to be Socially Backward Class in rest of the state and not as a Schedule Tribe. 7. Having given thoughtful consideration to the rival submissions of the learned advocates appearing for the respective parties, we hold that the impugned order dated 29.06.2004 passed by respondent No.3 canceling the caste certificate is erroneous. The Appellant has contended that since he was minor, his father had applied for issuance of Caste Certificate before the Mamlatdar, Jammbusar. The Mamlatdar, Jambusar issued the caste certificate dt.12.6.1980 certifying that the he belonged to “Hindu Vaghari” community which is Schedule Tribe. The Appellant has contended that since he was minor, his father had applied for issuance of Caste Certificate before the Mamlatdar, Jammbusar. The Mamlatdar, Jambusar issued the caste certificate dt.12.6.1980 certifying that the he belonged to “Hindu Vaghari” community which is Schedule Tribe. A careful scrutiny of the impugned Order dt.29.6.2004 will reveal the fact that the Mamlatdar, Jambusar, had issued the caste certificate by mistake. It is not the case of the respondent authorities that any role was played by the Appellant-petitioner in obtaining the said caste certificate by fraud. While arriving at the conclusion that the caste certificate issued by the authority to the petitioner was in fact by mistake, the concerned Mamlatdar, who issued the caste certificate is also not examined by the scrutiny committee,. The said mistake is sought to be corrected after a period of 24 years of the appointment of the Appellant. In the case of Gautam Roy Vs. Indian Overseas Bank, 1995 (2) G.L.H. 622 this Court has observed as under: “10. Assuming that seeking employment by concealing or misrepresenting about the material facts amounts to misconduct which may warrant disciplinary proceeding and termination of the Service after employment has been given, such misconduct-involves an element of "mens rea before a person can be punished for the same. If there was no deliberate attempt to mislead or misguide any person but a Person bonafidely places all the facts correctly before the prospective employer and thereafter any mistake is committed by the employer or by the authority issuing certificate it cannot be a case of misconduct of seeking entry in service by misrepresentation or by concealing the material facts about applicant.. … … …” The learned Assistant Government Pleader was put to the notice that whether any inquiry was held against the Mamlatdar, who had issued the caste certificate to the Appellant. The response was in negative. 8. As we perceive, respondent No.3, who was the competent authority, should have also inquired into the fact about issuance of such certificate by the Mamlatdar, though by mistake. In absence of any finding of this fact respondent No.3 should not have canceled the caste certificate of the petitioner. Looking to the satisfactory service of the petitioner for all these years, cancellation of the caste certificate will entail serious consequences. 9. In absence of any finding of this fact respondent No.3 should not have canceled the caste certificate of the petitioner. Looking to the satisfactory service of the petitioner for all these years, cancellation of the caste certificate will entail serious consequences. 9. One more aspect renders the impugned Order dt.29.6.2004 as illegal is the fact that the same does not deal with the evidence/documents produced by the Appellant vide Letter dt.25.4.2005. Though the Respondent no.3 has made reference about the presence of the Appellant on 21.5.2004 before the Scrutiny Committee, the Respondent no.3 has not even cared to refer the Letter dt.25.4.2005 and the documents produced along with the same. Hence, the same is liable to be quashed and set aside. 10. Hence, the appeal is allowed accordingly. Order of learned Single Judge dated 12.11.2009 as well as the order dated 29.06.2004 passed by respondent No.3, are quashed and set aside. By virtue of the order dated 30.04.2010 passed in Civil Application (for stay) No.13008 of 2009, the appellant has continued in service. We may further observe that all benefits arising out of cancellation of the aforesaid orders shall be made available to the appellant within a period of six weeks from the date of receipt of this order. Further, if any adverse consequences or disqualification is visited due to the impugned order the same shall be treated as nonexistence. Appeal allowed.