SCA/21876/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21876 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DILUBHAI ODHABHAI BASIYA - Petitioner(s) Versus THE STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR AM PAREKH for Petitioner(s) : 1,MR NISHUKUMAR PATEL for Petitioner(s) : 1, MR HH PARIKH, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, None for Respondent(s) : 2, DS AFF.NOT FILED (N) for Respondent(s) : 3, MR PRAVIN GONDALIYA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 26/08/2008 ORAL JUDGMENT 1. Rule. Mr. HH Parikh learned AGP waives service SCA/21876/2007 2/6 JUDGMENT of notice of rule for respondent Nos. 1,2 and 3 and Mr. Gondaliya learned Counsel waives service of notice for No. 4. 2. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today. 3. The short facts of the case appear to be that an advertisement was issued for allotment of Fair Price Shop authorisation, at village Mota Ujala, in Amreli in the year 2004. The petitioner as well as respondent No. 4, applied for allotment of the Fair Price Shop. It may be recorded that the advertisement was for general category, and it was not for reserved category. The Taluka Level Committee as well as District Level Committee recommended the name of respondent No. 4, for allotment and ultimately the authorisation came to be granted in favour of the respondent No. 4 by the District Collector vide order dated 2.3.2005. The petitioner had carried the matter before the State Government in Appeal being Appeal No. 21 of 2005. The State Government ultimately, after hearing both the SCA/21876/2007 3/6 JUDGMENT sides, did found that the qualification of the petitioner is higher. However, the State Government took the view that as the advertisement was for general category, and the petitioner is belonging to Social and Economical Backward Class Category, the case of the petitioner cannot be considered for allotment of the Fair Price Shop. Therefore, the appeal has been dismissed. It is under these circumstances, the petitioner has approached to this Court by the present petition. 4. Heard Mr. Parekh learned Counsel for the petitioner, Mr. Parikh learned AGP for the State Authorities and Mr. Gondaliya learned Counsel for respondent No. 4. 5. It appears that on factual aspect, so far as the advertisement, application made by the petitioner as well as respondent No. 4, the recommendation by Taluka Level Committee, as well as the District Level Committee, there is no dispute. The Collector has acted upon the recommendation of the Taluka and District Level Committees. It is also an admitted position that SCA/21876/2007 4/6 JUDGMENT the petitioner is holding higher educational qualification than respondent No. 4. There were only two applicants which are apparent from the order of the State Government. Therefore, the only aspect to be considered is whether the State Government was justified in rejecting the appeal on the ground that the petitioner belongs to reserved category of OBC, and the advertisement was for general category. 6. In my view, the position of law is well settled. If the advertisement is for general category, but the person belonging to any reserved category is qualified or is competent with the other candidates belongs to general category, he is required to be considered even in general category, and he cannot be excluded on the ground that he belongs to reserved category. The reference may be made to the decision of the Apex Court in case of Indra Sawhney v. Union of India and others reported at AIR 1993 SC 477 and more particularly, the observations made at paragraph No. 94A. 7. The perusal of the order passed by the State SCA/21876/2007 5/6 JUDGMENT Government shows that it has declined the consideration of the petitioner, on the ground that the petitioner belongs to reserved category of OBC, and the advertisement was for general category, and the respondent No. 4 belongs to general category. Such an approach on the part of the State Government is contrary to the settled legal position. It is true that the State Government may be required to examine other aspect about the other eligibility, as permissible in law, but it is also apparent that the educational qualification of the petitioner is higher than the educational qualification of respondent No. 4, if the weightage is to be given to the same and to considered while allotment of the Fair Price Shop to the educational qualification. 8. Under these circumstances, it was neither proper, nor legally sustainable on the part of the State Government to decline the consideration of the case of the petitioner, on the ground that he belongs to reserved category of OBC, and advertisement was for general SCA/21876/2007 6/6 JUDGMENT category. Therefore, the order passed by the State Government cannot be sustained, since the same is contrary to the settled legal position. 9. In view of the above, the impugned order passed by the State Government dated 5.8.2006 in Appeal No. 21 of 2005 Annexure-D is quashed and set aside with the direction that the appeal shall stand restored to the file of the State Government. The State Government shall decide the appeal a fresh, keeping in view the observations made by this Court hereinabove, and shall pass appropriate orders, after giving opportunity of hearing to both the sides as early as possible, preferably within a period of three months from the receipt of the order of this Court. 10.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. (JAYANT PATEL, J.) Suresh*