SCA/4178/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4178 of 2008 For Approval and Signature: HONOURABLE MS. JUSTICE R.M. DOSHIT & HONOURABLE MR.JUSTICE K.M. THAKER ========================================================= 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 civil judge ? ========================================================= CHAUDHARY POPATBHAI PREMJIBHAI - Petitioner(s) Versus CHIEF SECURITY COMMISSIONER & 3 - Respondent(s) ========================================================= Appearance : MR MEHUL SHARAD SHAH for Petitioner, MS SEJAL K MANDAVIA for Respondent(s) : 1 - 3. MS TRUSHA PATEL AGP for Respondent(s) : 4 ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 17th December, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) The petitioner in the present writ petition challenges the action of the respondent-Western Railways in cancelling the SCA/4178/2008 2/6 JUDGMENT selection of the petitioner for appointment as Constable in the Railway Protection Special Force. On 24th February, 2006, the Western Railways gave a public advertisement inviting applications for appointment on 202 posts of constables in Railway Protection Force/Railway Protection Special Force from amongst the eligible candidates belonging to other backward classes and Ex-servicemen in the Gujarat State and Union Territories of Daman, Diu, Dadra & Nagar Haveli. Out of the said 202 vacancies advertised, 42 vacancies were reserved for “Ex-servicemen”. Forty two vacancies reserved for ex-servicemen were distributed amongst the unreserved categories; other backward classes; scheduled castes and scheduled tribe candidates. The said public notice also provided that the candidates must be of other backward classes specified in Resolutions dated 13th September, 1993 and 20th October, 1994 issued by the Government of India in its Ministry of Welfare. In answer to the said public notice, the petitioner applied for appointment as constable. He also produced certificate issued by the concerned mamlatdar certifying that the applicant belonged to “Anjana Chaudhary” community which was recognized as “backward class” under the above referred Resolutions dated 13th September, 1993 and 20th October, 1994. The petitioner SCA/4178/2008 3/6 JUDGMENT under-went the selection procedure and was selected for appointment as constable. Pursuant to his selection, under communication dated 10th July, 2006, the petitioner was instructed to report for medical examination by the railway doctor. After being found medically fit, under communication dated 18th September, 2006, the petitioner was informed that he was selected for appointment as constable in Railway Protection Special Force on the terms and conditions, inter alia, that he would be required to undergo initial training at R.P.F. Training Centre, N.E. Railways, Gorakhpur for a period of nine months; on successful completion of training he would be appointed as constable in Railway Protection Special Force; the date of appointment would be the date from which he would be posted against the working post; during initial training, he would be eligible to draw stipend only. Thus, the petitioner would become eligible for appointment as constable only after successful completion of training. There is nothing on the record to suggest that the petitioner had successfully completed the initial training and that he was appointed as constable in the regular pay-scale. While under training, under communication dated 17th November, 2007, the petitioner was informed that the caste certificate submitted by him had been verified by the local authority and had opined that it was not SCA/4178/2008 4/6 JUDGMENT recognized for the purpose of employment under Central Government. In that view of the matter, his recruitment as constable in Railway Protection Special Force was cancelled. Feeling aggrieved, the petitioner has preferred the present petition. Learned advocate Mr. Shah has appeared for the petitioner. He has challenged the above referred Order dated 17th November, 2007 on several grounds. He, however, does not dispute that the petitioner did belong to “Anjana Chaudhary” community of Mehsana District. He also admits that the said community is not specified as “other backward class” under the above referred Resolutions dated 13th September, 1993 and 20th October, 1994. Mr. Shah has submitted that the present petitioner had applied for appointment pursuant to the aforesaid advertisement dated 24th February, 2006 in the quota of “Ex- servicemen”. The question of his selection as “other backward class candidate” did not arise; nor could his selection be cancelled for he did not qualify as “other backward class” specified in the Resolutions dated 13th September, 1993 and 20th October, 1994. The petitioner has made a specific averment that the petitioner had applied for selection and appointment against SCA/4178/2008 5/6 JUDGMENT the forty two vacancies reserved for Ex-servicemen. Even if the petitioner did not qualify for selection and appointment as “other backward class“ candidate, he had a right to be considered against the twenty two vacancies allotted to “un- reserved category Ex-servicemen”. These specific averments have not been controverted by the respondent-Western Railways. The reply filed by the Western Railways suggests that the petitioner's candidature was considered against the vacancies reserved for “other backward class candidates” and not against the quota allotted to “unreserved category Ex- servicemen”. In above view of the matter, to us, it appears that the Western Railways has failed to apply its mind to the selection of the petitioner. The cancellation of his selection was based on extraneous material or on non-est facts. For the aforesaid reasons, we allow this petition. The impugned order made on 17th November, 2007 is quahsed and set-side. The petitioner be reinstated in service within four weeks from today. The necessary consequence of restoration of his seniority, continuity of service, etc., should follow. Rule is made absolute. The parties will bear their own cost. It is, however, clarified that the petitioner will not be SCA/4178/2008 6/6 JUDGMENT entitled to actual wages from the date he was relieved from service till he is reinstated in service. In the event he is not reinstated in service by 14th January, 2009, the petitioner will be entitled to draw regular pay and allowances/stipend and allowances commencing from 15th January, 2009. Registry will send the writ forthwith. {Miss R.M Doshit, J.} {K.M Thaker, J.} Prakash*