SCA/30238/2007 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30238 of 2007 For Approval and Signature : HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= ARVINDBHAI CHIMANBHAI PADHIYAR - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR HR PRAJAPATI for Petitioner. MR VINAY PANDYA, LD.ASST.GOVERNMENT PLEADER for Respondent(s) : 1, MR PREMAL R JOSHI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 14/02/2008 ORAL JUDGMENT 1. Heard Shri H.R. Prajapati, learned counsel appearing for the petitioner; Shri Vinay Pandya, learned Assistant Government Pleader, appearing on behalf of the respondent-State SCA/30238/2007 2/29 JUDGMENT and Shri Premal Joshi, learned counsel appearing for the respondent no.3. 2. Rule. The formal service of notice of Rule is waived by Shri Vinay Pandya, learned Assistant Government Pleader, on behalf of the respondent nos.1 and 2; and the same is also waived by Shri Premal Joshi on behalf of respondent no.3. The Rule is fixed forthwith on consent. 3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of appropriate writ, order or direction that the order dated 06th June 2007 passed by the respondent no.2 may be held to be illegal, invalid and unfair, whereby the respondent no.2 rejected the application of the petitioner for allotment of fair price shop at village Runvad, Taluka and District Vadodara; and in the similar way, the order dated 19th September 2007 passed by the respondent no.1-Appellate Authority rejecting the Appeal preferred by the petitioner herein SCA/30238/2007 3/29 JUDGMENT being Appeal No.37 of 2007. The say of the petitioner is that the impugned orders are unjust, illegal and unfair, and run contrary to the guidelines of the Government and, therefore, the same resulted into violation of rights of the petitioner under Articles 14, 19(1)(g) and 21 of the Constitution of India. Of course, the impugned orders are challenged on various grounds, however, Shri Prajapati has concentrated his arguments mainly on two grounds. He has submitted that though there was sufficient evidence on record with the District Advisory Committee and the respondent no.2-Collector at the relevant point of time, the District Advisory Committee, constituted for the purpose under the scheme i.e. Pandit Dindayal Grahak Bhandar, and the respondent no.2-Collector ignored the evidence as to the status of the present petitioner being a member of the community covered under the other backward classes known as Socially and Economically Backward Class (hereinafter referred to as 'the SEBC') and though the SCA/30238/2007 4/29 JUDGMENT attention of the respondent no.1 was drawn to the effect that after publication of the Notification on 28th March 2006 and prior to the date of allotment of fair price shop, on 05th June 2007, the respondent no.3 had already married on 11th May 2006. So the change of her matrimonial status requires to be considered because the same has number of other consequences keeping in mind the scheme carved out by the respondent-State. 4. According to Shri Premal Joshi, learned counsel appearing for the respondent no.3, the respondent no.3 has admitted her marriage but her claim is that her husband resides at village Samsavad which is attached to village Runvad. So according to Shri Premal Joshi, the change in matrimonial status would not go to the root of the order of allotment of fair price shop to respondent no.3. It is submitted by Shri Premal Joshi that the respondent no.2 and the respondent no.1 have rightly considered that the petitioner had failed in SCA/30238/2007 5/29 JUDGMENT producing the certificate issued by the Competent Authority as to his status that he belongs to the SEBC category within the prescribed time limit and the plain reading of the scheme in question clearly reveals that such proof was required to be tendered at the time of submission of application and there was no scope for the petitioner to tender such evidence at a subsequent stage and on a condition to produce such evidence, the authority would not have legitimately allotted the fair price shop to the petitioner. Here in the present case, the petitioner has admitted that he has not produced the certificate issued by the Mamlatdar within the prescribed time limit i.e. prior to 21st April 2006, which is the last date fixed for submission of duly filled in application forms to get allotment of fair price shop. The certificate of the petitioner itself is of 26th April 2006. So the production of such a certificate could not have been looked into and it has been rightly ignored by the respondent no.2. The SCA/30238/2007 6/29 JUDGMENT petitioner was intimated accordingly. He was not falling under the zone of consideration at all and, therefore, the name of the respondent no.3 was recommended by the District Advisory Committee. 5. Shri Vinay Pandya, learned Assistant Government Pleader, has submitted that the Committee had recommended only one name i.e. the name of respondent no.3, because there was no certificate with the application of the petitioner as to his status of SEBC category. Shri Pandya has further submitted that the respondent no.2 and the respondent no.1 have considered all the aspects and the decision of allotment of fair price shop to the respondent no.3 is not required to be disturbed; that too while exercising constitutional powers vested in the Court. 6. One of the submissions of Shri Premal Joshi is that the marriage of a woman would not automatically disqualify her from allotment of fair price shop for which she had applied SCA/30238/2007 7/29 JUDGMENT prior to her marriage because she was residing at village Runvad. The marriage would not disqualify a person. Indisputably, so far as the educational standard is concerned, the petitioner is meritorious than the respondent no.3. Indisputably the applications were invited by publication of notification on 28th March 2006 and the last date of submission of application forms was 21st April 2006. The petitioner as well as respondent no.3 had applied within the prescribed time limit, but the application form of the petitioner states that he would produce necessary caste certificate at a later stage. 7. I have carefully gone through the documents submitted by the parties and the contentions raised in the petition as well as in the affidavit. I have also perused the scheme floated by the Government and the Government Resolutions issued by the Government for amendment of the scheme from time to time. But according to me, the date of marriage of the SCA/30238/2007 8/29 JUDGMENT respondent no.3 i.e. 11th May 2006, would go to the root of the decision of allotment of fair price shop to her. After about one year of marriage of the respondent no.3, the Government decided to allot the fair price shop to the respondent no.3. The similar issue had cropped up before this Court while dealing with Special Civil Application No.5385 of 2007 in the case of Jaiswal Rupal Sudhirkumar v. State of Gujarat and others, and the observations made by this Court (Coram : C.K. Buch, J) in the judgment dated 07th February 2008, in the said petition would be relevant in the context of the facts placed before this Court. It would be beneficial to reproduce the relevant part of the said judgment, which is as under : “The petitioner was allotted one of such shops in the area mentioned in the advertisement as Gotri under the order passed by the Collector, ignoring the recommendations made by the District Advisory Committee on 24.01.2006. However, during the said interregnum SCA/30238/2007 9/29 JUDGMENT period, the petitioner got married to one person residing in the vicinity of Gotri area and, therefore, on the date of allotment the petitioner was enjoying status of being a married woman. According to me, the petitioner ought to have disclosed this fact before the Collector when the proceedings were pending and applications were under scrutiny, otherwise the Collector may have selected either respondent no.3 or a person who was recommended at Sr.No.3 by the District Advisory Committee constituted for the purpose. This fact is sufficient to observe that the petitioner has not been held disqualified for allotment of a fair price shop. The act of getting married would not incur any disqualification itself, but if the marriage was solemnized prior to the allotment of a fair price shop and pendency of proceedings, the Government can consider this vital aspect as one of SCA/30238/2007 10/29 JUDGMENT the relevant factors and it appears that the respondent no.1 has taken into consideration this aspect being relevant while allowing the appeal preferred by the respondent no.3. xxx xxx xxx It is not possible for this Court to accept the argument of Mr.Majmudar that when the husband of the petitioner is resident of area Gotri then the question of period of her residence in the said area Gotri would be irrelevant. This argument cannot help the petitioner because in that case the Taluka and District Advisory Committees could have ascertained the fact alleged that the husband of the petitioner is really residing in the said area Gotri for more than ten years or not in accordance with the policy existing in the year 2007. The criteria of consideration would have changed materially. The Government also could have ignored as to whether the husband of the petitioner is financially well SCA/30238/2007 11/29 JUDGMENT off; and whether the petitioner really needs any employment even at her in- law's house. Because, ultimately the scheme under which the petitioner was allotted a licence to run a fair price shop, is carved out with a view to see that at least one educated unemployed person of a family gets something which can be said to be employment or an economic activity for the family.” 8. In the present case, it is not a matter of dispute that the respondent no.3 herself has never declared before the respondent no.2 or even the Taluka Mamlatdar that now she has married on 11th May 2006 after submission of the application and her husband is resident of village Samsavad, and the said village is attached to village Runvad. The card-holders of village Samsavad have to collect their ration, etc. from the fair price shop situated at village Runvad. The said village Samsavad is at a distance of two kilometres from village Runvad and the claim of respondent SCA/30238/2007 12/29 JUDGMENT no.3 for allotment of fair price shop licence would not be affected. It was obligatory on the part of the respondent no.3 to do so because change in matrimonial status goes to the root of various relevant aspects of the scheme floated by the Government. The respondent no.2 would have inquired on receipt of such information from the respondent no.3 about the residence of the husband of the respondent no.3 and so also as to his socio- economic status. This aspect has not been gone into by the respondent no.1. At least the respondent no.1 ought to have remanded the matter to the respondent no.2 for inquiring into the crucial aspects pointed out by the present petitioner at the time of appeal. This has made the order passed by the respondent no.1 bad in the eye of law. 9. In the same way, there is enough force in the arguments of Shri Prajapati that there is no obligation on the part of the petitioner to produce the caste certificate issued by the SCA/30238/2007 13/29 JUDGMENT Mamlatdar or any other officer of a particular Department like the Social Welfare Department, etc. and the petitioner could have satisfied the said Committees i.e. Taluka Advisory Committee and the District Advisory Committee that he belongs to the SEBC category. It is not a matter of dispute that the School Leaving Certificate was produced along with the application form. There was no need for the petitioner even to request the concerned authority that he may be permitted to produce relevant certificate subsequently. The School Leaving Certificate clearly states that the petitioner belongs to the SEBC category. On close reading of the caste certificate issued by the Mamlatdar on 27th April 2006, it reveals that even the Mamlatdar had considered the School Leaving Certificate as one of the relevant documents while issuing the caste certificate. The observations made by the Apex Court in the decision in the case of Dolly Chhanda v. Chairman, JEE and others, reported in (2005) 9 SCC 779, would also help the SCA/30238/2007 14/29 JUDGMENT petitioner. Ultimately, the scheme is floated with a view to see that a meritorious unemployed candidate gets some employment or any economic assistance. The preamble of the Government Resolution speaks about number of aspects considered by the Government and from that point of view, the say of the petitioner ought not to have been turned down on sheer technicalities, especially when the first scrutiny Committee i.e. Taluka Advisory Committee had recommended the name of the present petitioner at Sr.No.1. The facts stated by the petitioner as to why he was not able to produce caste certificate in time must have been considered by the Mamlatdar i.e. the person who had issued certificate to the petitioner on 26th April 2006. Any falsity would have prevented the Mamlatdar in recommending the name of the petitioner. Surprisingly in the present case, the District Advisory Committee even did not recommend three names. It is not the say of the said Committee that no other candidate was SCA/30238/2007 15/29 JUDGMENT available at all who could have been recommended. But without entering into the said controversy, it is possible to observe that the said Committee and the respondent no.2 as well as the respondent no.1 would have held that the reference of status of the petitioner in the School Leaving Certificate is sufficient in determining the entire issue and the petitioner ought not to have been denied his right flowing from the said scheme of the Government and the intention of the State Government. Here I would like to reproduce the relevant paragraph nos.7, 8 and 9 of the decision cited hereinabove in the case of Dolly Chhanda (supra), which are as under : “7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in SCA/30238/2007 16/29 JUDGMENT application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof SCA/30238/2007 17/29 JUDGMENT need not necessarily result in rejection of candidature. 8. This principle was explained and applied in Charles K. Skaria & Ors. v. Dr. C. Mathew & Ors. 1980 (2) SCC 752. The controversy here related to admission to a post graduate course in medicine. The relevant rule provided for addition of 10% marks if a candidate possessed a diploma in the relevant subject or sub-specialty and this benefit could be given only if the candidate's success in the diploma course was brought to the knowledge of the Selection Committee before completion of selection in an authentic or acceptable manner. The Prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. Three such candidates were given admission who had not attached SCA/30238/2007 18/29 JUDGMENT the certificate of having passed the diploma along with their applications. Their admission to post graduate course was set aside by the High Court on the ground that their applications, wherein they claimed the benefit of diploma, were liable to be rejected as the requisite certificates had not been attached. This Court speaking through Krishna Iyer, J. reversed the judgment of the High Court and held that the admission to the candidates had rightly been given as they had in fact passed the diploma before the date fixed. The relevant parts of paras 20 and 24 of the judgment, where this principle was highlighted are being reproduced below: "20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for SCA/30238/2007 19/29 JUDGMENT application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor. ... Mode of SCA/30238/2007 20/29 JUDGMENT proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few SCA/30238/2007 21/29 JUDGMENT days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence. xxx xxx xxx 24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanizes the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We SCA/30238/2007 22/29 JUDGMENT think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from courts and government orders from public offices." 9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it SCA/30238/2007 23/29 JUDGMENT does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.” 10. The allotment of fair price shop is not like an admission in a medical college or a permanent employment, or gainful employment in the Government job. Ultimately, the idea of the Government appears to help the meritorious youngsters lurching in frustration. Therefore, there has to be some generosity in the mind of the competent authority and when it is permissible otherwise for the authority to ignore the certificate on availability of the School Leaving Certificate, the petitioner was required to be given licence to run a fair price shop instead of issuing licence to the SCA/30238/2007 24/29 JUDGMENT respondent no.3 herein. So the order passed by the respondent no.2 and the respondent on.1 under challenge in this petition, are required to be quashed and set aside. 11. However, one of the submissions of Shri Premal Joshi is found logical whereby he has submitted that both the authorities simultaneously require to consider as to whether the case of the respondent no.3 needs a special consideration in view of Clause 5.1.6 of the scheme. It is the decision of the Government that females should be given some priority and, therefore, there must be some reservation for females and, therefore, it is decided by the Government as a matter of policy that 10% shops of the total shops must go to the females and, therefore, it has been carved out in the scheme that 10% shops in each category be given to females. Neither the learned Assistant Government Pleader nor the learned counsel appearing for both the parties are aware as to how many shops have been SCA/30238/2007 25/29 JUDGMENT allotted under the scheme as new fair price shop. So if the respondent no.3 falls in the category of 10% category of persons, who are required to be allotted fair price shop, she could have been given priority over other candidates to see that the quota prescribed under the scheme is maintained. There is neither any discussion as such in the order passed by the respondent no.2 nor in the reply affidavit submitted to the Court. The order passed by the respondent no.1-Appellate Authority is also silent in this regard. Therefore, in view of aforesaid, the impugned orders are required to be quashed and set aside. 12. So in view of aforesaid facts and circumstances of the case and without entering into any other issue, the present petition is hereby allowed. The impugned order dated 06th June 2007 passed by the respondent no.2 and also the order dated 19th September 2007 passed by the respondent no.1-Appellate Authority in SCA/30238/2007 26/29 JUDGMENT Appeal No.37 of 2007, are hereby quashed and set aside. The case of the petitioner is remanded to the respondent no.2-Collector to decide the controversy afresh only with respect to the following specific directions : (i) The respondent no.2-Collector shall decide as to whether the marriage of the respondent no.3 will adversely affect the allotment of fair price shop to her or not. (ii) The respondent no.2-Collector is directed to inquire into detail as to whether the respondent no.3 is domicile of village Samsavad or not; meaning thereby, to inquire as to whether the respondent no.3 married with a person who is resident of village Samsavad for the last about 10 years or not. (iii) The respondent no.2-Collector shall also inquire as to whether the SCA/30238/2007 27/29 JUDGMENT respondent no.3 requires to be given preference being a female