Joshi Bhoomi Pratapbhai Being Minor through her Father and Others vs Secretary-Admission Committee for Professional and Diploma and Others

K.A. Puj, J.—The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the order passed by the respondent No. 1-Admission Committee for Professional and Diploma Courses, Gujarat State, dated 16.12.2008. The petitioner has also prayed for a direction to the respondent No. 3-College to permit the petitioner''s daughter-Bhoomi, to appear in the first semester examination on and from 01.01.2009 and allow her to continue study in respondent No. 3-College.

During the pendency of this petition and pursuant to the order passed by this Court in Civil Application No. 9058/2009 on 27.08.2009, the petitioner has made one more prayer in the petition seeking interim direction to the respondent No. 4 to issue the caste certificate to the petitioner on the basis of the letter dated 13.08.2009 addressed by Vice President of Rajgor Community to respondent No. 4.

Earlier this Court vide order passed on 30.12.2008, granted ad-interim relief in favour of the petitioner and the petitioner''s daughter was permitted to appear in the examination without creating any additional equity in her favour, subject to further orders that may be passed by this Court. Thereafter, on 04.03.2009, further order was passed by this Court directing this petition to be heard with Special Civil Application No. 124/2009. Special Civil Application No. 124/2009 was heard and disposed of on 18.08.2009 on the basis of the order passed by the Chair Person, Commission for the Other Backward Classes dated 20.05.2009 certificate granted by the Deputy District Director (Vikasati Jati), Rajkot dated 06.07.2009, whereby it was certified that the said petitioner belonged to Rajgor Community and to the Socially and Educationally Backward Class(SEBC).

Since the present petition was ordered to be heard along with Special Civil Application No. 124/2009 and since the said petition is already disposed of, the present petition is taken up for final disposal. Heard Mr. A.R. Thacker for the petitioner, Ms. Chetana Shah for the respondent Nos. 1 & 2 and Mr. Sunit Shah with Mr. N.V. Gandhi for the respondent No. 4. Despite service of notice, nobody appears on behalf of the respondent No. 3.

The dispute between the parties is that after filing of the petition and during the pendency of this petition, survey was undertaken by the respondent No. 4. The petitioner could not appear before the Commission during the course of survey and hence the petitioner''s application could not be considered. As against the stand of the Commission, the petitioner''s contention is that the petitioner, in fact, sent an application to the leader of the community. However, inadvertently or through oversight the application could not be forwarded and because of that the petitioner''s application was not considered during the course of survey. However, the petitioner did appear before the Commission, but the petitioner was asked to approach through the leader of the community. Immediately on the next day, the leader of the community has sent representation but that has not been considered till this date. It is also the case of the petitioner that the other members of the petitioner''s family were issued necessary caste certificate. However, the petitioner''s case has not been considered. It is, therefore, the case of the petitioner that if the application forwarded through the leader is considered, the petitioner would certainly get the caste certificate as requested for.

The stand taken by the petitioner was strongly opposed by Mr. Sunit Shah, learned advocate appearing for the Commission and detailed affidavit was filed on behalf of the respondent No. 4-Commission. It was stated therein that the caste certificate was issued in favour of those persons, who were surveyed by the Commission and whose names appeared in survey report. This process of 100% survey was in consonance with the observations made by the Hon''ble Apex Court in the case of Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., It is further submitted that the leaders of Rajgor Community had provided information for about 4661 families and more than 60% of the members of the Rajgor Community were left out and hence as an exception, order was passed on 23.07.2008 for re-survey. Pursuant to the said order, leaders of the community have submitted a list of 9837 families of ''Kathi Gor'' and 3305 families of ''Ahir Gor''. Accordingly survey was carried out and report was submitted. It was further stated that the petitioner''s name was not included by leaders of the community at the time when survey was carried out and completed. Despite the fact that the petitioner was aware about this survey, the petitioner did not make any effort to verify and ascertain whether or not his daughter''s name was included in the list submitted by community leaders. It is therefore submitted that now, as the survey has been carried out practically, that too on case to case basis, no permission should be issued by this Court directing the Commission to undertake this exercise again and to grant the certificate.

Having heard the learned Counsel appearing for the parties and having considered the documents produced on record and in view of the fact that the petitioner''s daughter has continued her study on the basis of interim order of this Court and the petitioner''s other family members are enjoying the caste certificate and only because of some misunderstanding or mistakes on the part of the caste leader, the petitioner''s application could not be forwarded and hence the same was not considered, the petitioner or his daughter should not suffer. It is therefore in the interest of justice that the petitioner''s case is required to be considered. The Court is taking this view looking to the peculiar facts of this case and that too, when the petition was pending before this Court when the survey was undertaken by the Commission. Hence without treating this case as any kind of precedent, the respondent No. 4-Commission shall consider the petitioner''s case in light of the letter forwarded by the Vice President of the Rajgor Community on 13.08.2009 in relation to the petitioner''s daughter and issue the necessary caste certificate in her favour at an early date. Till such exercise is over, interim protection granted by this Court would continue. If any adverse view is taken by the Commission, the same shall not be implemented for the period of 15 days from the date of communication of such decision and it shall be open for the petitioner to challenge such decision before this Court by way of a substantive petition, if so required.

With this direction and observation, this petition is, accordingly, disposed of. Rule is made absolute to the above extent without any order a to costs.