Bombay High Court
Razvi Shabana Mazhar Ali vs The State Of Mah on 15 June, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1182 OF 2011
Razvi Shabana Mazhar Ali,
Age : 35 years, Occu. Service,
R/o Plot No. 76 Alamgir Colony,
Aurangabad Dist. Aurangabad. .. Petitioner
Versus
The State of Maharashtra
through its : Collector, Aurangabad .. Respondent
Shri U. R. Awate, Advocate h/f Pritesh S. Bhandari and S. B.
Talekar, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for the Respondent.
CORAM : ANOOP V. MOHTA AND
SUNIL K. KOTWAL, JJ.
DATE : 15TH JUNE, 2017.
ORAL JUDGMENT (Per Anoop V. Mohta, J.) :-
. Called out from final hearing board. During the course of
hearing, the learned counsel for petitioner submits that, petition
is restricted to the extent of challenge to impugned order dated
13.01.2011 and petitioner does not press other prayers, so made
in the petition.
2. Petitioner has challenged order dated 13.01.2011 passed by
District Collector, Aurangabad, whereby non creamy-layer
certificate issued to petitioner's father, which was basis for her
appointment, was set aside.
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3. This Court on 14th October, 2011, while admitting matter by
reasoned order has granted stay in terms of prayer clause "C".
Based upon said prayer clause, petitioner has been in service till
this date. The effect of non creamy-layer certificate of father, so
issued, therefore, remained in tact till this date.
4. Petitioner was appointed pursuance to the advertisement
issued by Maharashtra Public Service Commission (M.P.S.C.)
based upon the required non creamy-layer certificate dated
12.08.2006. There is no issue that in the year 2006 non creamy-
layer certificate is required for availing 30% reservation by
woman in open category. The required three years gross income
for issuance of non creamy-layer certificate should not be more
than Rs. 4,00,000/-. It appears that, petitioner's father for
getting certificate mentioned gross income of Rs. 45,000/- (Rs.
15,000/- x 3). The concerned Tahsildar, Aurangabad, issued the
non creamy - layer certificate. A complaint was lodged by the
petitioner's estranged husband. The department initiated the
proceedings. The petitioner accepted the mistake. However,
requested to maintain/retain the certificate/order, as in any way
three years income was not more than Rs. 4,00,000/-, even as per
the enquiry so conducted.
5. The learned Assistant Government Pleader has pointed out
various documents in support of the contention that, the
petitioner's father had suppressed facts of gross income, than Rs.
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45,000/- and obtained the certificate. Non submission of correct
figure while applying for issuance of non creamy-layer certificate
amounts to suppression of facts, and therefore, the impugned
order, so passed needs no interference is the submissions.
6. We have noted after going through documents so read and
referred that gross income of petitioner's father was never
exceeded the limit so fixed. Therefore, there was no issue, with
regard to issuance of non creamy-layer certificate. Non creamy-
layer certificate, therefore, even otherwise, could have been
issued in favour of petitioner's father.
7. In the facts and circumstances and after going through the
income of father of petitioner, we have noted that, he was getting
pension about Rs. 40,000/- per year. This mistake in no way take
away the non creamy-layer certificate. Ultimately, the Tahsildar
and/or higher officer required to consider at the time of issuance
of non creamy-layer certificate, whether the person concerned
has crossed the total gross income. In this case, we have noted
that, there was such position. The non creamy-layer certificate,
so issued needs no interference.
8. In case of allegations of fraud or misrepresentation, it is
required to consider in the context in which such averments were
made. It is with intent to cheat and gain and/or bonafide and/or
it is by mistake and/or by negligence. In the contest and the
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background, so referred above, we are convinced that, this is not
the case that petitioner's father or petitioner could take gain or
intended to cheat by putting less gross income by mistake. The
gross income was less than limit. Therefore, petitioner's father,
as even otherwise, could have got the certificate in question.
Therefore, in the interest of justice, we see no reason to disturb
and/or interfere in the non creamy-layer certificate, issued by
Tahsildar, Aurangabad. Therefore, impugned order dated
13.01.2011 passed by respondent/Collector, Aurangabad is
required to be quashed and set for the reason so recorded above
as the certificate so issued was within the frame of law as income
was within the prescribed limit. This is not the case of obtaining
the certificate based on misrepresentation or fraud.
9. Therefore, following order.
O R D E R
A. Writ petition is allowed.
B. Rule is made absolute in terms of prayer clause "B". No
costs.
Sd/- Sd/-
[SUNIL K. KOTWAL, J.] [ANOOP V. MOHTA, J.]
bsb/June 17
