Mayurkumar Vasabhai Karamata vs State Of Gujarat
2023 Latest Caselaw 3089 Guj

     C/SCA/5397/2023                              JUDGMENT DATED: 20/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5397 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                      sd/-

==========================================================

1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                       MAYURKUMAR VASABHAI KARAMATA
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
NIYATI V VAISHNAV(6168) for the Petitioner(s) No. 1,2,3,4,5
MS NIRALI SARDA, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1,2,4
==========================================================

    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 20/04/2023

                              ORAL JUDGMENT

1. RULE returnable forthwith. Ms.Nirali Sarda, learned AGP waives service of notice of Rule on behalf of the respondent- State.

C/SCA/5397/2023 JUDGMENT DATED: 20/04/2023

2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.

3. The prayer in the petition is to issue direction to issue an appointment order to the petitioners for the post of Clerk and Office Assistant Class-III.

4. The case of the petitioners is that pursuant to an advertisement for recruitment of Clerk and Office Assistant Class-III, the petitioners being Scheduled Tribe candidates, have applied for appointments.

5. Ms.Niyati Vaishnav learned counsel for the petitioners would submit that appointments were orally denied on the ground that the castes from which the petitioners belong are under scrutiny of the State Government. Reliance is placed on an order dated 15.03.2020 passed in Special Civil Application No.1168 of 2022, which reads as under:

"1. Rule returnable forthwith. Mr.Kurven Desai, learned Assistant Government Pleader, waives service of rule on behalf of the respondent - State.

2. Heard Mr.Shalin Mehta, learned Senior

C/SCA/5397/2023 JUDGMENT DATED: 20/04/2023

Advocate with Mr.Hemang Shah, learned advocate for the petitioner and Mr.Kurven Desai, learned Assistant Government Pleader for the State respondents.

3. The petitioner belongs to the Rabari community, which is covered under the Scheduled Tribes category. The Gujarat Public Service Commission, issued an advertisement No.112/2018- 19 on 17.07.2017 for filling up 60 vacant posts of Police Inspector (Unarmed), Class-2.

3.1 The petitioner submitted his application and appeared for the written examination. The petitioner was found eligible to be appointed to the post of Police Inspector (Unarmed), Class-II. His name figured at serial no.56 on the select list prepared on 22.02.2021.

3.2 No appointment orders have been issued in the case of the present petitioner, since February, 2021 because of the Caste Certificate controversy pending consideration before the Scrutiny Committee.

C/SCA/5397/2023 JUDGMENT DATED: 20/04/2023

4. Mr.Shalin Mehta, learned Senior Advocate, would submit that the scrutiny for examining the petitioner's caste certificate is pending now for more than a year and though the petitioner has been selected for appointment to the post of Police Inspector (Unarmed), Class-II, but for the exercise at the hands of the Scrutiny Committee which is pending, no appointment orders are being issued. He would rely on an order passed by this Court in Special Civil Application No.1858 of 2021.

5. Mr.Kurven Desai, learned Assistant Government Pleader, would rely on an affidavit-in- reply filed in SCA No.1171 of 2022. Reading the affidavit-in-reply would indicate that due to certain protest and agitations, and by virtue of the pendency of the issue, caste certificates have not been given to the Rabari, Bharvad and Charan community living in the ness areas in the forest of Alech, Gir and Barda of Gujarat. Since the petitioner belong to this area and the issue pertains to the veracity of the caste of the petitioner who belong to this area, the Caste Certificate will not be issued for the time being till the Committee takes a decision.

C/SCA/5397/2023 JUDGMENT DATED: 20/04/2023

6. Considering the order of a Co-ordinate Bench of this Court dated 26.07.2021, the respondent authorities are hereby directed to give provisional appointment to the petitioner to the post of Police Inspector (Unarmed), subject to the result of the Scrutiny Committee. Such order shall be issued within a period of 02 (two) months from the date of receipt of the writ of this order. It is clarified that the appointment of the petitioner would be provisional and in case, it is found by the Scrutiny Committee that the certificate of the petitioner is not genuine, the petitioner will not be entitled to any benefit of the provisional service. It is also clarified that if the Caste Certificate of the petitioner is found to be genuine, it will be open for the petitioner to claim his actual appointment from the date of his juniors and also continuity of service and other benefits.

7. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. Direct service is permitted."

6. Having heard Ms.Vaishnav learned advocate for the

C/SCA/5397/2023 JUDGMENT DATED: 20/04/2023

petitioners and Ms.Nirali Sarda, learned AGP for the State, and in view of the order referred to hereinabove, the petition is allowed. The respondent authorities are directed to give provisional appointments to the petitioners to the post of Clerk and Office Assistant Class-III subject to result of the Scrutiny Committee. Such orders shall be issued within a period of two months from the date of receipt of writ of this Court.

7. It is clarified that the appointments of the petitioners would be provisional and in case, it is found by the Scrutiny Committee that the certificates of the petitioners are not genuine, the petitioners will not be entitled to the benefit of being in provisional service.

8. It is also clarified that if the caste certificates of the petitioners are found to be genuine, it will be open for the petitioners to claim their actual appointments from the date of their juniors and also continuity of service and other benefits.

9. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. Direct service is permitted.

sd/-

(MAUNA M. BHATT,J)

DIPTI PATEL