Nilesh Dayabhai Kodiyatar vs State Of Gujarat
2023 Latest Caselaw 1982 Guj

     C/SCA/1721/2023                             JUDGMENT DATED: 01/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1721 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       NILESH DAYABHAI KODIYATAR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
NIYATI V VAISHNAV(6168) for the Petitioner(s) No. 1
MR JAY A MEHTA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 01/03/2023

                            ORAL JUDGMENT

1. Rule returnable forthwith. Learned AGP waives service

of notice of rule for and on behalf of the respondent -

C/SCA/1721/2023 JUDGMENT DATED: 01/03/2023

State.

2. Heard learned advocate for the petitioner and learned

AGP for the respondent - State.

3. The petitioner belongs to the community which is

covered under the Scheduled Tribes category. The

advertisement for the post of Assistant Sub-Inspector

(unarmed) Class-3 was published, wherein the petitioner

applied, cleared his exam and his name was published in

the merit list of selected candidates. However, no

appointment order has been issued to the petitioner

because of his caste certificate controversy pending

consideration before the Scrutiny Committee.

4. Learned advocate appearing for the petitioner would

submit that the scrutiny for examining the petitioner's

caste certificate is pending since long and though the

petitioner has been selected for appointment to the said

post but for the exercise at the hands of the Scrutiny

Committee, which is pending, no appointment order is

being issued. He would rely on the order passed by this

Court in the Special Civil Application No.1858 of 2021.

C/SCA/1721/2023 JUDGMENT DATED: 01/03/2023

5. Learned AGP would rely on one affidavit-in-reply filed

in the SCA No.1171 of 2022. On perusing the same, it

would indicate that due to certain protests and

agitations, and by virtue of pendency of the issue, the

caste certificates have not been given to the 'Rabari',

'Bharvad' and 'Charan' communities living in the ness

areas in the forests of Alech, Gir and Barda of Gujarat.

Since the petitioner belongs to these areas and the issue

pertains to the veracity of the caste of the petitioner

who belongs to these areas, the caste certificate has not

been issued for the time being till the Committee takes

a decision.

6. Considering the order passed by 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 respective post, subject to the result

of the Scrutiny Committee. Such order shall be issued

within a period of two months from the date of receipt

of copy of writ of this order.

7. It is, however, clarified that the appointment of the

C/SCA/1721/2023 JUDGMENT DATED: 01/03/2023

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 their actual appointment from the date of their

juniors and also continuity of service and other benefits.

8. As the appointment is being given provisionally

subject to the decision of the Scrutiny Committee

regarding the caste certificate, which is under scrutiny,

the provisional appointment shall stand automatically

terminated if the Scrutiny Committee comes to the conclusion that the certificate is not a genuine certificate.

It will not be open then for the department to extend

such provisional appointment under the guise that the

decision of the Scrutiny Committee is open for challenge

before the appropriate forum or this Court.

9. Since the respondent-Corporation had independently

challenged the order passed in Special Civil Application

No.15404 of 2022 & allied matters against which the

C/SCA/1721/2023 JUDGMENT DATED: 01/03/2023

Corporation had preferred LPA No.1748 of 2022 and

allied matters, however, today it is reported that the

aforesaid LPA filed by the respondent-Corporation is also

rejected.

10. The petition is allowed to the aforesaid extent. Rule

made absolute accordingly. Direct service is permitted.

(SANDEEP N. BHATT,J) SRILATHA