Mistry Rajeshkumar Ramanlal vs State of Gujarat and Another

M.R. Shah, J.—As common question of facts and law arise in both these Letters Patent Appeals, they are being disposed of by this common judgement and order.

Letters Patent Appeal No. 4 of 2009 with Civil Application No. 23 of 2009 is filed by the appellant herein - original petitioner challenging the impugned order passed by the learned Single Judge dtd. 30/12/2008 in Special Civil Application No. 15960 of 2008 in dismissing the same and in not directing the respondents to consider the application of the appellant - original petitioner for the post of Assistant Public Prosecutors in the State of Gujarat as per law and not allowing the appellant to appear in preliminary examination. Letters Patent Appeal No. 82 of 2009 is preferred by the appellant - original petitioner challenging the impugned order dtd. 30/12/2008 passed by the learned Single Judge in Special Civil Application No. 15567 of 2008 in dismissing the said Special Civil Application and in not directing the respondent No. 2 - Gujarat Public Service Commission (''GPSC'' for short) to issue Call Letter of test to the appellant.

Before considering the Letters Patent Appeals on merits, few facts and the history which lead to filling up the posts of Assistant Public Prosecutor in the State of Gujarat deserves consideration, and the same are as under:

Criminal Misc. Application No. 13937 in Criminal Appeal No. 487 of 2006 was placed before the Division Bench of this Court to condone the delay of 1695 days caused in filing the Criminal Appeal against the judgement and order of acquittal passed by the learned trial court, wherein one of the ground in the application for condonation of delay was shortage of Assistant Public Prosecutor and one Additional Public Prosecutor was required to attend more than one courts and in most of the cases in different Talukas and the resultant effect was delay in disposal of the criminal trials, as Assistant Public Prosecutor was attending the particular Criminal Court in the Taluka only once a week and it was found that on rest of the days, the Additional Public Prosecutors were not available in the Court due to which the work of the Court was suffering and therefore, the Division bench asked the State to file detailed reply stating that how many posts of Assistant Public Prosecutors in the State are vacant. By order dtd. 19/2/2008, Division Bench directed the Legal Department of the State Government to file detailed reply giving particulars of the statement with respect to the Additional Public Prosecutors in the entire State with respect to each of the Sessions Court, Additional Sessions Court and Magistrate''s Court by observing that in so many cases, grievances is made that there is shortage of Additional Public Prosecutors and due to shortage of Additional Public Prosecutor, Judicial Magistrate First Class''s Courts, Additional Sessions Court, Sessions Courts, Magistrate''s Court have to adjourn the matters which is one of the reason for arrears.

Initially Dy. Secretary, Legal Department filed reply giving particulars with respect to the Criminal Courts in each District and how many sanctioned posts of Additional Public Prosecutors are there and how many posts of Additional Public Prosecutors are vacant. It appeared that there are no sufficient Additional Public Prosecutor / Assistant Public Prosecutors. It was found that in Vadodara District, there were total 25 Courts taking up criminal matters against which sanctioned post of Assistant Public Prosecutors was only 8 and out of which one was vacant, therefore, it was found that at least 17 to 18 criminal courts in Vadodara District were without Additional Public Prosecutors / Assistant Public Prosecutors. Similar was the position with respect to other Sessions Court in each District. Therefore, Division Bench directed the Legal Department, State of Gujarat to come out with a specific instructions when each court would be having Additional Public Prosecutors / Assistant Public Prosecutors, so that Criminal Courts can proceed further with the matter and to that the Secretary, Legal Department filed the reply that the State Government intends to create 270 Posts of Assistant Public Prosecutors and other Assistant Public Prosecutors may be appointed in three different phases. It was also pointed out that even against the sanctioned strength of 236 Assistant Public Prosecutors, 60 posts of Assistant Public Prosecutors were vacant, it was proposed that the said vacant posts would be filled in by GPSC by undertaking appropriate selection procedure. Even to meet with the emergent situation, the State Government also took a decision to appoint Additional Public Prosecutors on adhoc basis, so that the said adhoc Additional Public Prosecutors may appear before the Magistrate Court.

The Division Bench was not satisfied with the reply filed by the Legal Department and the Division Bench in its order dtd. 11/3/2008 in the aforesaid Criminal Misc. Application made the following observations in para 5:

... Even against the sanctioned strength of 236 Additional Public Prosecutors, 60 posts are vacant. Even the sanctioned posts are less than the requirement considering each Court. It cannot be disputed that without the Public Prosecutors may be Additional and/or Assistant Public Prosecutors, the Criminal Courts cannot proceed further with the matter, and as stated above, when one Additional Public Prosecutor is in charge of three Criminal Courts at various places/Talukas, it will not be possible for an Additional Public Prosecutor to remain present in each Court every day, and if an Assistant Public Prosecutor is in charge of three Taluka JMFC Courts, he can remain present only before one Court and other two Courts will have to wait and/or adjourn the matters. This can be the reason for arrears and delay in disposal of criminal cases. In the reply filed on behalf of the State, it is not stated that when and how vacant posts are likely to be filled in and even when the sanctioned posts are likely to be increased.

The Division Bench directed the Secretary, Legal Department to file detailed reply dealing with the aforesaid aspects.

That thereafter the State of Gujarat responded positively and Notifications dtd. 5/8/2008 and 6/98/2008 came to be issued creating / sanctioning 180 additional posts of Assistant Public Prosecutor and the State Government also responded positively to fill up the vacant posts against the sanctioned posts. It was further stated that looking to the work and the strength of the Court and the judges, there was a further requisition for 198 posts from various courts and the same will be looked into by the State Government.

When the aforesaid application came up for hearing before the Division Bench on 27/8/2008, the learned Advocate General submitted that 180 posts of Additional Public Prosecutors are already sanctioned by the State Government inclusive of the Finance Department and accordingly considering 180 additional posts of Additional Public Prosecutors and 60 posts of Assistant Public Prosecutors vacant against sanctioned posts, State Government sent requisition to the GPSC for 240 posts of Assistant Public Prosecutors. The learned Advocate General also stated on behalf of the State that as one time programme and with a view to see that the posts of Assistant Public Prosecutors are filled in as early as possible, it has been decided to have the examinations of paper Nos. 2, 3 and 4 by Objective Type of 200 marks. The State Government also came out with a time bound schedule so that the posts of Assistant Public Prosecutors are filled in at the earliest and there are sufficient Assistant Public Prosecutors in most of the criminal courts.

The learned Advocate General, in consultation with the Secretary, Legal Department; Dy. Secretary, GAD and Secretary GPSC, submitted that Draft Rules for filling of posts of Assistant Public Prosecutors as one time measure will be published on or before 20/10/2008. It was submitted that as one time measure for filling 242 posts of Assistant Public Prosecutors which is proposed to have been one question paper of 200 marks for various subjects inclusive of Law Paper-I, Law Paper-II, which will be for framing of issues, framing of charges, principles of pleadings, Code of Civil Procedure, Code of Criminal Procedure, Evidence Act, Indian Penal Code. It was also further submitted that the question paper with respect to English, Gujarati will be there and separate marks will be allotted for different subject. It was further submitted in consultation with the Secretary, GPSC that the advertisement inviting applications for 242 posts of Assistant Public Prosecutors in the local news paper as per the rules shall be published on or before 20/10/2008 and the last date for submitting application would be 10/11/2008 and GPSC would further require one month for scrutiny of those applications. It was also submitted by the learned Advocate General approximately three times of number of posts to be filed in starting from top to bottom, the applicants will be called for oral interview. It was also further submitted that minimum qualifying marks will be prescribed and the aforesaid will also be reflected and/or notified in the advertisement. It was submitted that scrutiny of the applications would be done on or before 10/12/2008 and simultaneously setting of the question paper would also be done on for before 10/12/2008. It was further submitted that the examination will be conducted on or before 16/1/2009 and a further six weeks time is required by GPSC for assessing answer papers and that would be done on or before end of February, 2009. It was further submitted that thereafter oral interview of the eligible candidates would commence from 15/4/2009 and approximately six weeks'' time would require to complete the oral interview. It was further submitted that within 15 days on completion of oral interviews immediately list would be sent to the State Government, more particularly Legal Department. The learned Advocate General, in consultation with the Secretary, Legal Department submitted that approximately minimum 30 days time would require for police inquiry, medical test etc. and immediately thereafter all the vacancies of Assistant Public Prosecutors will be filled in.

Considering the above, the Division Bench directed all concerned to act as per the above schedule. Considering the above, it was hoped that the entire process of filling of aforesaid 242 posts of Assistant Public Prosecutors in the State of Gujarat would be completed on or before 31/7/2009, if the aforesaid time schedule is strictly followed and acted upon.

In the above background, process to fill up the 242 posts of Assistant Public Prosecutors started.

The GPSC invited applications for 242 posts of Assistant Public Prosecutors from the eligible candidates by giving advertisement in local news paper on 17/10/2008. In the said advertisement, it was specifically mentioned that out of 242 posts of Assistant Public Prosecutors, Class-II, 122 posts are for General category, 15 posts are reserved for the candidates belonging to Scheduled Caste and 36 posts are reserved for candidates belonging to Scheduled Tribe candidate and 69 posts are reserved for the candidates belonging to SEBC candidates. Even reservation for the Women candidates was also provided in the said advertisement. In the said advertisement, age relaxation with respect to reserved category candidate was also provided and the candidates were required to fill in the form in the prescribed format and were required to produce necessary documents as mentioned in the said advertisement inclusive of necessary marksheet and educational experience certificate issued by the concerned criminal courts, caste certificate and creamy layer and non-creamy layer (in case of reserved SEBC category candidate). It was specifically provided in the said advertisement that candidate belonging to General category and Women candidates were required to deposit Rs. 100 as fees and candidates belonging to reserved category were not required to pay/deposit the aforesaid Rs. 100 as fees. It was also provided in the advertisement that if a reserved category candidate even wants to apply in General category and does not want to get benefit of reservation, in that case also he is not required to pay/deposit Rs. 100 as fees. It was also provided in the said advertisement that candidates belonging to SEBC category who have produced non-creamy layer certificate will also be given age relaxation. It was specifically provided in the said advertisement that incomplete applications will be rejected and such candidate will not be called for written examination.

It is also to be noted that in the form, there was a specific column with respect to which category candidate belongs to i.e. General category, Scheduled Caste, Scheduled Tribes, SEBC etc. and candidate belonging to a particular category was required to put tick mark against the said category, so that their applications can be scrutinized and considered in that particular category.

In response to the aforesaid advertisement, both the appellants - petitioners who are practicing advocates submitted applications for the posts of Assistant Public Prosecutors, Class-II, on or before the date mentioned in the said advertisement. Both the appellants belong to SEBC Community and in the forms they have also put a specific tick mark against SEBC Category. Candidates belonging to SEBC category were required to submit creamy layer / non-creamy layer certificate issued by the competent authority for considering their case in the said reserved category. Both the appellants did not submit non-creamy layer certificate though the same was must and therefore, vide communication dtd. 8/12/2008 both the appellants were informed by GPSC that both of them are considered ineligible for appearing in preliminary examination as having not produced non-creamy layer certificate and their application being incomplete.

The preliminary examination was to be conducted on 11/1/2009. As both the appellants were considered ineligible for appearing in the preliminary test/examination for the posts of Assistant Public Prosecutors, Class-II, both the appellants preferred the aforesaid Special Civil Applications.

The appellant of Letters Patent Appeal No. 4 of 2009 preferred Special Civil Application No. 16960 of 2008 praying only the following final relief in para 10(a):

8 (a). To issue a writ of mandamus and/or certiorari and/or any other writ, order or directions to the respondents to consider the application as per law and allow the petitioner to give the preliminary examination.

The appellant of Letters Patent Appeal No. 82 of 2009 preferred Special Civil Application No. 15567 of 2008 and asked for the following final relief in para 8 (D):

8(D). Be pleased to direct resp. No. 2, to issue call letter of test to the present petitioner, and allow him to appear in the test.

It was contended on behalf of the original petitioners that in the advertisement in para 7.4 it was mentioned that whomsoever falling in the category of SEBC has to submit non-creamy layer certificate, if he wants to take advantage of age relaxation and as the appellants did not not want to take advantage of age, they had not produced non-creamy layer certificate and therefore, on that ground, the application of the petitioners ought not to have been rejected. It was submitted that in the advertisement production of non-creamy layer certificate was not compulsory and it was only for the candidate who wants to take additional benefit of age relaxation and not for all the SEBC candidates. It was further submitted that in any case, Even if non-creamy layer certificate was required, then, respondent No. 2 ought to have asked the petitioners to produce such certificate within the prescribed time, as so done in many cases. No other submissions were made.

That both the aforesaid Special Civil Applications came to be heard by the learned Single Judge on 30/12/2008 and the learned Single Judge dismissed both the aforesaid Special Civil Applications by observing that the respondent No. 2 GPSC was justified in rejecting the applications of the petitioners as the respective petitioners have not produced non-creamy layer certificates and their applications were incomplete. Being aggrieved by the impugned order dtd.30/12/2008 passed in Special Civil Application Nos. 15960 and 15567 of 2008, respective appellants have preferred present Letters Patent Appeals before this Court.

Mr. Asim Pandya, learned advocate appearing on behalf of both the appellants has submitted that SEBC Candidate who were not seeking age relaxation were not required to produce non-creamy layer certificate and in the advertisement non-creamy layer certificate was required from SEBC candidate for age relaxation only. It is submitted that SEBC candidate not seeking any age relaxation, was not required to submit non-creamy layer certificate for appearing in the examination.

It is further submitted that it is well settled proposition of law that the person belonging to SEBC Category is entitled to compete in General Category. If on merit a reserved category candidate gets higher marks then general category candidate and he can claim his selection/admission or appointment in open/general category. He cannot be compelled to be considered against the reserved quota only. It is submitted that on the same analogy if the present petitioners did not fulfill OBC criteria, their cases are required to be considered in open category subject to the eligibility criteria prescribed for general category.

Mr. Asim, learned advocate appearing on behalf of the appellants has relied upon the following decisions in support of his above submissions:

R.K. Sabharwal and others Vs. State of Punjab and others,

Barot Jignesh Lakshmansinh Vs. State of Gujarat,

It is further submitted by Mr. Pandya learned advocate appearing on behalf of the appellants that even otherwise advocates and other such professional fallling within the category of ''Creamy Layer'' of OBC, as per the prevalent policy, if their income during preceding three years is more than the income provided in the policy of a particular State for obtaining a non-creamy layer'' certificate, a procedure has been prescribed by the State of Gujarat and the procedure includes submission of an application in the prescribe form; recording of a statement of the applicant, preparation of Panchnama and submission of affidavit. Form No. 4/37 is an affidavit where the deponent has to state on oath/affirmation that in his/her family nobody is a professional namely, a doctor, a surgeon, an advocate, a CA, an Income Tax Consultant etc. It is submitted that said prescribed form 4/37 is defective. Affidavit in the prescribe form could not have been given by the father/mother of a lawyer applying for judicial posts or posts connected with the judiciary, since the appellants are advocates. Hence, it is unjust to insist submission of a false affidavit for obtaining a non-creamy lawyer certificate in the form prescribed by the State Government from the advocates. It is submitted that all those advocates who could procure a non-creamy layer certificate have submitted defective affidavits, which, in law, cannot be accepted as affidavits.

It is further submitted by the learned advocate appearing on behalf of the appellants that even advertisement published by the respondent was vague and does not clearly specify the requirement to be fulfilled by the SEBC candidate. No specific option given to the SEBC to fill up separate form if intending to compete in open category. On the contrary an indication is given that even if a candidate belonging to SEBC wants to compete in general category, such candidate need not pay Rs. 100 fees. Therefore, the decision of rejection shows total non-application of mind.

Lastly it is submitted that the candidates belonging to SEBC not seeking age relaxation, were not required to furnish non-creamy layer certificate and therefore, their applications ought not to have been rejected on that ground. Therefore, it is submitted that if the appellants are not allowed to appear in the examination, it will cause irretrievable loss to them as by the next time, when such advertisement will be issued, the appellants would be age barred, whereas no such loss would be caused to anyone if the appellants are permitted to appear in the examination.

Additional Affidavit is filed in Letters Patent Appeal No. 82 of 2009 pointing out instances of two candidates namely Suresh Santuji Thakore and one another person, who had filled up forms for the post of Assistant Public Prosecutor in pursuance of the advertisement in question in SEBC category and whose form came to be rejected by GPSC, and subsequently were allowed to appear in the examination conducted by the GPSC on 10/11/2009. Thus it was submitted that those persons who were possessing political influence, were allowed to appear in the examination in the same category, whereas other candidates in the same category were not allowed to appear in the examination. Thus, it was sought to be contended that the aforesaid act of GPSC is discriminatory and violative of Article 14 of the Constitution of India. In the said Additional Affidavit, it was also submitted that it is normal practice of the GPSC to shift person applying in the SEBC category to the General category, if the candidate applying in SEBC does not fulfill requirement for applying in SEBC. In support of his above submission, appellants has also produced entry receipts and forms submitted by one Chauhan Mayurika for the post of Clerk, Class-III Examination.

Submitting accordingly, it is requested to allow both these appeals.

Both these Letters Patent Appeals are opposed by the learned advocate appearing on behalf of GPSC as well as State Government. Mr. D.G. Shukla, learned advocate has appeared on behalf of the GPSC and Mr. Umesh Trivedi, learned Additional Government Pleader has appeared on behalf of the State. Learned advocate appearing on behalf of the GPSC has submitted that both the appellants belong to SEBC category and both of them put tick mark against SEBC category in the prescribed form, and they did not produce non-creamy layer certificate along with the application. Thus, the applications submitted by the respective appellants were incomplete as they have not submitted non-creamy layer certificate, therefore, GPSC is justified in rejecting the applications of the appellants and considering them as ineligible for appearing in the preliminary text/examination for the post of Assistant Public Prosecutor, Class-II. It is further submitted that therefore, the learned Single Judge has not committed any error in dismissing the petitions.

It is further submitted by the learned advocate appearing on behalf of the respondents - GPSC and the State Government that for getting benefit of reservation under SEBC, a candidate has to produce non creamy layer certificate as, as per the reservation policy for those candidates who are falling within the definition of non-creamy layer, are entitled to get benefit of reservation in the reserved category of SEBC. It is submitted that candidate belonging to reserved category of SEBC under the reservation is not only required to be given age relaxation only but his case is required to be considered along with the candidates belonging to SEBC Category and cut off marks etc. would be different. Therefore, it is submitted that non-creamy layer certificate was required only for age relaxation, cannot be accepted.

It is further submitted that even the contention on behalf of the appellants that the advertisement was vague is also not true. It is submitted that the advertisement is as clearly as it can be and every necessary particulars are mentioned in the advertisement. It is submitted that in all 4985 candidates submitted applications, out of which 1699 candidates were belonging to SEBC Category and in fact 966 candidates belonging to SEBC category, submitted non-creamy layer certificate. It is submitted that if those candidates could understand the advertisement and submit non creamy layer certificates which is required for the candidate belonging to SEBC category, in that case, the appellants also ought to have produced non creamy layer certificate.

It is further submitted that so far as the submission with respect to defect in the Form No. 4/37 for getting non creamy layer certificate and the affidavit required, it is submitted that first of all, such a contention has not been raised before the learned Single Judge. It is submitted that even there are no pleadings or averments in the memo of petitions/appeals. It is further submitted that even otherwise on merits also, the same has no substance. It is submitted that only in a case where even a professional who is having a particular income can get non creamy layer certificate and affidavit was required to that effect with respect to income. It is submitted that it is not that no professional can get non-creamy layer certificate. It is submitted that as such, as stated above, 966 applicants who are professionals (advocates) have got non-creamy layer certificate. It is further submitted that as such it was not the case on behalf of the the appellants that because they are advocates, they could not get non-creamy layer certificate.

Now, so far as the contention on behalf of the respective appellants that as they did not want to get benefit of age relaxation which is available to candidates belonging to SEBC category and as they did not intend to get benefit of reservation in the reserved category of SEBC candidate and therefore, they did not produce non-creamy layer certificate and therefore, their cases were required to be considered along with other general category candidates is concerned, learned advocate appearing on behalf of the respondents more particularly GPSC has stated that as such there is no power vested with the GPSC to suo motu consider the applications of the candidate belonging to reserved category automatically along with the general category candidate as non-fulling the requirement by reserved category candidate. It is further submitted that the decision relied upon by the learned advocate appearing on behalf of the appellants in the cases of R.K. Sabharwal and Ors. v. State of Punjab and Ors. (supra) and Barot Jignesh Lakshmansinh and Ors. v. State of Gujarat and Ors. (supra) will not be applicable as in the aforesaid cases, applications from the candidate belonging to reserved category were found to be complete and in order and they were found to be more meritorious than general category candidate and therefore, it was held that their cases should be considered along with the general category candidate first as they are found to be more meritorious than general category candidate and their cases is not to be considered in the reserved category quota. It is submitted that in none of the cases it is held that irrespective where their applications were found to be complete or not, and moment applications submitted by the respective reserved category candidate found to be incomplete, automatically their cases are required to be considered along with the general category candidates in general category.

It is further submitted that if intention of the appellants was to consider their cases along with general category candidate in general category and they did not intend to get benefit under the reservation, in that case, they should have specifically mentioned in the application (as has been done by some SEBC Candidates) that though they belong to SEBC category, they do not intend to get benefit of reservation and their cases be considered along with the general category candidate in general category and therefore, they have not produced non creamy layer certificate. It is submitted that in the case of Suresh Shantuji Thakore and Anr. in the form itself the said candidates had mentioned ''SEBC-General'' ''SEBC-Unreserved'' respectively and therefore, it was decided to consider their cases and consider them in general - unreserved category.

By way of additional affidavit in reply it is specifically denied that it is not the practice of the GPSC to automatically treat applications of the reserved category candidate in general category having been found that their applications are incomplete and necessary certificates and caste certificates are not produced. It is submitted that instances mentioned in the additional affidavit in reply in Letters Patent Appeal No. 82 of 2009 are not by the GPSC.

It is submitted by the learned advocates appearing on behalf of the respective respondents - GPSC as well as State Government that examination has already been conducted on 11/1/2009 and now GPSC is required to declare results and they are required to act as per the schedule fixed by the Division Bench of this Court to fill up 242 posts of Assistant Public Prosecutors. Therefore, it is submitted that it is now not possible for the GPSC to take fresh examination of the appellants, otherwise it would further delay the process of filling up the posts of Assistant Public Prosecutor in the State which is the need of the day to clear arrears, as on account of non-availability of the Assistant Public Prosecutors, in most of the cases, the courts have to adjourn criminal cases. Therefore, it is requested to vacate ad-interim relief granted earlier and permit GPSC to declare the results so that further process can be initiated.

Submitting accordingly, it is requested to dismiss both the present appeals.

Heard the learned advocates appearing on behalf of the respective parties at length.

At the outset it is required to be noted that against the 236 sanctioned posts of Assistant Public Prosecutors in the State 64 posts of Assistant Public Prosecutors were found to be vacant. Looking to the strength of the criminal courts in the Courts, in the Sessions Court, Additional Sessions Courts, Magistrate''s Court etc. it was found that sufficient number of Assistant Public Prosecutors are not available and it was also found that one Additional Public Prosecutor is in charge of 3 to 4 Magistrate Courts and that too in different Talukas and even one Assistant Public Prosecutor was attending that court once in a week and therefore, due to non-availability of the Assistant Public Prosecutor in the particular Taluka Courts, Courts are required to either wait for the Assistant Public Prosecutors or adjourn the criminal cases and it was found to be the major reason / cause for the delay in disposal of the criminal cases. The State Government responded immediately to meet with the aforesaid situation and sanctioned 180 additional posts of Assistant Public Prosecutors. Necessary Draft Rules came to be published immediately; necessary sanction from the Finance Department was also obtained immediately, and process was started to fill up 242 posts of Assistant Public Prosecutors in the State of Gujarat in the time bound schedule and it was hoped that if everything is done within stipulated schedule, 242 posts of Assistant Public Prosecutors will be filled in by September 2009 and that is why process of filling up posts of Assistant Public Prosecutor started. Applications came to be invited by giving advertisement in local news paper from the eligible candidates (advocates) with all required particulars as mentioned in the advertisement. There is specific column mentioned in the prescribed form with respect to each category i.e. General category, Scheduled Caste, Scheduled Tribe, SEBC etc. Candidates belonging to each category were required to put tick mark against the respective category. It was also specifically pointed out that the candidate belonging to SEBC has to produce non creamy layer certificate. It was specially pointed out that candidates belonging to general category and women candidate, are required to pay Rs. 100 fees and candidate belonging to reserve candidate is not required to pay such a fee. It was also mentioned that even if a candidate belonging to reserved category does not want to get benefit under the reserved category, in that case also such candidate is not required to pay the aforesaid fee. It is specifically provided in the said advertisement that if candidate belong to SEBC category has not produced the non-creamy layer certificate, he shall not be entitled to the age relaxation of five years. Considering the above, it is sought to be contended on behalf of the respective appellants that as they did not want to get benefit of age relaxation, they did not submit non-creamy layer certificate. However, it is to be noted that reserved category candidate belonging to SEBC under the reservation policy, will not be getting age relaxation only but there will be different merits for such category candidate and cut off marks would also be different. It is also to be noted that in the advertisement it was specifically mentioned that those applications without requisite certificates and particulars will be considered as incomplete and those candidates would be considered ineligible for the preliminary tests.

Admittedly both the appellants had not submitted non-creamy layer certificate which is must for getting benefit under the reserved category of SEBC. It cannot be disputed that only those candidates who belong to non-creamy layer will be entitled to the benefit under the reserved category of SEBC. As both the appellants did not submit non-creamy layer certificate along with the applications, their applications are considered incomplete and accordingly they are held ineligible for appearing in Preliminary Test /Examination and are not permitted to appear in the Preliminary text/ examination.

It is the contention on behalf of the petitioners that even if they had not produced the non-creamy layer certificate in that case, GPSC was required to consider their cases in general category. In support of above submission, learned advocate has relied upon the decision in the cases of .K. Sabharwal and others (supra) and Barot Jignesh Lakshmansinh and Ors. (supra). However, on considering the above decisions, there is no absolute proposition of law laid down by the Hon''ble Supreme Court in the said decisions that even in a case where application of the candidate belonging to reserved category is found to be incomplete on non-production of the required caste certificate etc. their cases are required to be considered automatically in general category. In the case before the Hon''ble Supreme Court a candidate belonging to reserved category whose application was found to be complete and who had submitted necessary caste certificate etc. was found to be more meritorious than general category candidate and to that the Apex Court held that his case was required to be considered in the quota of general category candidate and his case is not required to be considered in the reserve quota. Therefore, the submission on behalf of the appellants that on non-production of the non-creamy layer certificate along with the applications, GPSC was required to consider their cases in the general category automatically, cannot be accepted. It is not so provided in the advertisement. GPSC has no suo-motu power and/or it is not the practice of the GPSC to automatically consider case of the candidate belong to reserved category in the general category on non-production of requisite caste certificate etc. And therefore on non-production of non-creamy layer certificate by the appellants their applications are found to be incomplete. It can be done provided the same is mentioned in the advertisement and/or the same is the practice of the GPSC. Therefore, the contention on behalf of the respective appellants / petitioners that on non-production of the non creamy layer certificate by them their cases were required to be considered in the general category, cannot be accepted.

Now, the contention on behalf of the appellants that as they did not intend to get age relaxation and that they did not intend to consider their cases in the reserved category and therefore, they did not produce non creamy layer certificate and therefore, their cases were required to be considered in the general category, cannot be accepted. If the intention of the respective appellants was that their cases may not be considered in the reserved category and their cases were required to be considered in general category in that case, first of all, they should have specifically mentioned in the application that though they belong to SEBC category, they do not intend to get benefit of reservation and their cases be considered along with general category candidate. It is also required to be noted that in the form the respective appellants have specifically put tick mark in the SEBC Category, therefore, the intention of the respective appellants was very much clear to consider their cases in the reserved category of SEBC. Now, on non production of the non-creamy layer certificate which is must for getting benefit under the reserved category of SEBC and having found their applications incomplete and they are held ineligible for preliminary test, the appellants have now come out with a story that as they did not intend to get age relaxation and the benefits in the reserved category, they have not produced non-creamy layer certificate, which cannot be accepted. The said contention is nothing but an afterthought.

Now, so far as the contention on behalf of the respective appellants with respect to the defective form No. 4/37 for getting non-creamy layer certificate is concerned, it is required to be noted that such a contention is not raised before the learned Single Judge and even there are no averments and/or pleadings in the petitions. It is also to be noted that in all 966 candidates belonging to SEBC category, who were also professionals/advocates, have produced non-creamy layer certificate. It is also to be noted that it is not that no professional will be eligible for non-creamy layer certificate. If a professional is having more than a particular income, is not entitled to non-creamy layer certificate. Therefore, necessary affidavits are required with respect to income of the said professionals and considering the same, authority is required to issue non-creamy layer certificate. Even such a submission on behalf of the appellants is nothing but an afterthought and even self-contradictory. One one hand, as stated above, it is contended on behalf of the appellants / petitioners that as they did not intend to get age relaxation and benefit under reservation of SEBC, they did not produce non-creamy layer certificate and on the other hand, now they have come out with a case that it was a defective form/affidavit and their parents do not intend to file false affidavit. It is also to be noted that it is not the case of the appellants that even they applied for non-creamy layer certificate, and they could not get it.

Now, so far as discriminatory treatment alleged to have been given to the appellants on the ground that two candidates belong to SEBC category namely Suresh Santuji Thakore and Anr. though did not submit non-creamy layer certificate, they are found to be eligible and therefore, their cases are considered, is concerned, as per the reply filed by the GPSC it was found that those candidates in the prescribed form have specifically stated that SEBC-General'' - ''SEBC-Unreserved'' and therefore, their cases have been considered in the general category. It is submitted that had appellants stated in the applications that their cases be considered in the general category, their cases would also have been considered along with other two candidates. It is submitted that is not that only with respect to aforesaid two candidates but with respect to other 42 similarly situated candidates though they belong to SEBC, as they have specifically mentioned in the form that their cases be considered in the General category, on non-production of non-creamy layer certificates, their cases are considered in General Category.

The contention on behalf of the appellants - petitioners that the application form was vague, cannot be accepted. In all 4985 candidates have submitted applications and none of the candidate except the petitioners, have made any grievance that the application is vague. Even considering the advertisement, it cannot be said that the advertisement is vague as sought to be contended by the appellants - petitioners. All the necessary particulars have been mentioned in the advertisement inclusive of the requirement of non-creamy layer certificate etc.

Now so far as reliance placed upon the recent decision of the Hon''ble Supreme Court in the case of Bihari Lal Rada v. Anil Jain (Tinu) and Ors. rendered in Civil Appeal No. 976 of 2009 is concerned, the same will also not be applicable to the facts of the present case. The question posed before the Hon''ble Supreme Court was whether provisions of Haryana Municipal Act 1973 and the rules framed thereunder curtail and put any embargo on the right of the Municipal councillors elected of President Municipality if by virtue of roaster such office is notified to be filled in by the members belonging to the general category? That the Hon''ble Supreme Court considered that the General candidate simply means the same is not reserved for any particular class of persons or community and it is open to all classes who have been elected as members of the ward irrespective of the fact whether they have been elected from the wards were reserved for Scheduled Tribe and the backward classes or from the wards which remained unreserved. Such a situation is not in the present case. The aforesaid decision would have been applicable if the petitioners belonging to reserved category (SEBC), have requested to consider their case in the general category and in a case where a candidate who has filed complete form and who is found to be eligible for appearing in the examination and has appeared and is found to be more meritorious than general category candidate.

Now, so far as the contention on behalf of the appellants that no prejudice would be caused if examinations are taken so far as appellants are concerned and their cases are considered om general category. It is to be noted that only 10 to 12 candidates have made grievance and have approached this Court against 4985 candidates, out of which applications of 1302 candidates have been rejected on various grounds and/or they are found to be not eligible and therefore, for few of them who have come before this Court, separate examination cannot be conducted. Even otherwise, the same is likely to upset the schedule fixed by the Division Bench and further process of filling up the post of Assistant Public Prosecutors would be delayed and it will result in further delay in disposal of the criminal cases. As and when in future applications are invited, the appellants can submit fresh applications along with necessary certificate etc. and their case can be considered and there shall not be any question of age bar, as they belong to SEBC category and they are entitled to age relaxation of five years and both the appellants are aged 30 years. Under the circumstances, the prayer of the appellants to conduct their examination, cannot be accepted.

For the reasons stated above, as the applications submitted by the respective appellants were incomplete and they have not produced the requisite non-creamy layer certificate along with the application form though they belong to SEBC category and so stated in the application form and thereby they are held to be ineligible for appearing in the Preliminary Text/Examination for the posts of Assistant Public Prosecutor, Class-II and even the examinations are already conducted on 11/1/2009 and the resultant is to be declared and further process to fill up the posts of Assistant Public Prosecutors is to be taken, both the Letters Patent Appeals deserve to be dismissed and are accordingly dismissed. Any interference at this stage is likely to further delay the process to fill up the post of Assistant Public Prosecutors in the State, which is the need of the day to clear the backlog and the arrears of criminal cases.

In view of dismissal of the main Letters Patent Appeals, no orders in the Civil Application. Ad-Interim relief granted earlier stands vacated forthwith.

In the facts and circumstances of the case, there shall be no order as to costs.

After pronouncement of the judgement, Mr. Hiren Modi, learned advocate appearing on behalf of the appellant has requested to continue the ad-interim relief granted earlier.

For the reasons stated in the judgement and considering the fact that the Written Examination is already conducted on 11/1/2009 and Answer Sheets are already checked and now only the result is to be declared and if any further stay is granted, the same is likely to further delay the appointments of Assistant Public Prosecutors, which is the need of the day, as due to shortage of Assistant Public Prosecutors in the Criminal Courts in the State, there is a delay in disposal of trial, the prayer of the appellants to continue the ad-interim relief, is hereby rejected.