1 S.B.CIVIL WRIT PETITION NO.5661/2007 Rakesh Ramawat v. State of Rajasthan & Anr. Date of Order :: 8 th April, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Rakesh Ramawat, petitioner present in person. Mr. J.P.Joshi ] Mr. Deepak Choudhary] for the respondents. .... On qualifying written test, the petitioner was provisionally declared successful to face interview for Rajasthan Judicial Service Competitive Examinations-2005 and was instructed to submit a complete application form sent alongwith communication dated 15.5.2007 issued by the Assistant Secretary, Rajasthan Public Service Commission (hereinafter referred to as “the Commission”). In the application form aforesaid the petitioner categorised himself as “O.B.C.”. A certificate dated 30.12.1994, issued by the Tehsildar, Jaipur certifying the petitioner as a member of Other Backward Class (Non-Creamy-layer) as per the Government of Rajasthan Notification dated 29.9.1993 was also annexed. By a communication dated 21.5.2007 the petitioner was called for to face viva-voce on 2 20.6.2007 and was also directed to bring all educational documents (original and photocopies) with him. On 20.6.2007 the petitioner was directed to submit within a period of 15 days a certificate of O.B.C. Issued after 15.4.1996. The petitioner obtained the same on 25.6.2007 and remitted that to the Commission. In the certificate dated 25.6.2007 the petitioner was shown as a member of Other Backward Class coming from Creamy-layer. In the meanwhile, on 28.6.2007 the Commission declared the provisional select list wherein the petitioner ranked third in general category. The Commission sought an explanation from the petitioner on 16.7.2007 regarding contradictions in two OBC Certificates submitted by him and ultimately on 13.8.2007 his selection was cancelled for making an effort to get benefit of reservation under the category of OBC (Non-Creamy-layer) by misleading the Commission. While challenging cancellation of selection, the contention of the petitioner is that at the first instance he annexed a copy of the OBC Certificate available with him and on asking vide communication dated 20.6.2007, he submitted a certificate, certifying him as a member of Other Backward Class (Creamy-layer), hence he never misrepresented or made any effort to mislead the Commission. It is also urged 3 that at the most being coming from Creamy-layer, he would have been taken out from the category of OBC but no just reason was available to cancel his selection despite ranking high in the general category. Per contra, the stand of the Commission is that even the certificate obtained in the year 1994 seems to be false, as then too father of the petitioner was holding a post under the Rajasthan Judicial Service. As per the respondents, the petitioner is guilty of submitting his application form in the OBC category on the basis of a certificate which is not valid in law as the petitioner was required to submit certificate in terms of the Government of Rajasthan's circular dated 15.4.1996. The petitioner, in view of the certificate issued as per the notification dated 15.4.1996, is a member of Other Backward Class (Creamy-layer). This fact was not disclosed by him and as such an effort was made to claim benefit of reservation in OBC category. Such misrepresentation and concealment of fact warranted rejection of selection. Precisely, the question requires determination in the instant matter is that whether the petitioner is guilty of such a misrepresentation that may warrant cancellation of his selection even under general category? 4 In general, misrepresentation means the statement made by a person or a party to a transaction that a thing or fact relating to that transaction in a particular way, despite knowing that it is not so. However, every misrepresentation is not fraudulent or ill-intended, may that be factually wrong. As per Heilbut, Symons & Co. v. Buckleton, [1913] A. C. 30, “misrepresentation may be either innocent or fraudulent. If innocent, it may be a ground for rescission of a transaction or a good defence to an action for specific performance, but it gives no right of action sounding in damages”. This Court is required to examine as to whether the petitioner fraudulently made a misrepresentation or that was only an innocent wrong statement. Pertinent to note here that the date of birth of the petitioner is 16.3.1980 and when the certificate of 1994 was obtained, he was of the age of about 14 years. No wrong can be said on part of the petitioner in relation to the certificate obtained for him in his minor age. According to the petitioner he annexed a copy of the aforesaid certificate bonafidely being available with him. It is not in dispute that on asking under the communication dated 20.6.2007 the petitioner obtained a certificate on 25.6.2007 and remitted the same to the Commission immediately thereafter. In the certificate dated 25.6.2007, it was 5 specifically stated that the petitioner is a member of Other Backward Class coming from Creamy-layer. If the petitioner was intending to conceal this fact, he would have not sent the certificate aforesaid immediately or may have not made a request to treat him in general category. It is pertinent to note that the petitioner also tendered additional examination fee to the Commission to treat him as a person coming from general category. Looking to all the facts of the case, what it appears, is that the act of the petitioner is a bonafide wrong or at the most it may be a mistake. No intention of the petitioner to get benefit of reservation fraudulently is visible. Such a mistake deserves to be condoned and it does not give any reason to the respondent Commission to cancel selection of the petitioner in the Rajasthan Judicial Service under general category. Accordingly, this petition for writ deserves acceptance and, therefore, the same is allowed. The decision of the Rajasthan Public Service Commission to cancel selection of the petitioner to the Rajasthan Judicial Service, as a consequent to Rajasthan Judicial Service Competitive Examinations-2005, is declared illegal. The petitioner is declared selected in the examinations aforesaid and the respondents are directed to proceed with all consequential actions 6 including issuance of an order of appointment, if the petitioner is otherwise eligible. No order as to costs. ( GOVIND MATHUR ),J. Kkm/ps.