Chief Executive Officer, Zilla Parishad vs State Of Maharashtra & Others

filed by respondent No. 2, i.e., Gajanan Sadashiv Ghule, 2 was allowed by setting aside the order of termination of

his services dated May 4, 1998.

2. Briefly stated the facts of the case are as follows:

Claiming that he belongs to Scheduled Tribe,

the respondent No. 2 applied to the appellant to appoint

him as an Assistant Teacher. The respondent No. 2 was

selected by the Subordinate Selection Board from the

Scheduled Tribes category and was appointed as

Assistant Teacher temporarily on January 16, 1993.

The appointment of the respondent No. 2 was subject to

verification of his tribe claim. The tribe Certificate

produced by the respondent No. 2 was forwarded for

verification to Scheduled Tribe Caste Scrutiny

Committee (the `Scrutiny Committee' for short). Some of

the documents submitted by respondent No. 2 indicated

that he was a "Hindu Koli". The Scrutiny Committee,

after giving the respondent No. 2 an opportunity of

hearing, invalidated the tribe Certificate by decision

dated November 6, 1997. The respondent No. 2 was

holding the post of Assistant Teacher temporarily, which

was specifically reserved for Scheduled Tribe. Therefore, 3 the appellant terminated services of the respondent No.

2 by order dated May 4, 1998. Thereupon, the

respondent No. 2 filed writ petition No. 1660 of 1998

before the Nagpur Bench of Bombay High Court. He

challenged the order terminating his services as well as

order dated November 6, 1997, passed by the Scrutiny

Committee. It was pointed out to the Division Bench of

the High Court, hearing the said matter, that interview

was fixed by the Scrutiny Committee on November 6,

1997, but the respondent No. 2 received notice in that

behalf on November 12, 1997. The said submission

made on behalf of respondent No. 2 was accepted by the

High Court. The High Court set aside the order dated

November 6, 1997 invalidating caste claim of the

respondent No. 2 and directed the Scrutiny Committee

to decide the matter afresh after affording necessary

opportunity of hearing to him. The Court further

directed respondent No. 2 to appear before the Scrutiny

Committee on January 29, 1999 along with all

necessary documents. The respondent No. 2 appeared

before the Scrutiny Committee on January 29, 1999, 4 but requested for grant of time and, therefore, he was

called upon to appear on December 30, 1999. Again,

the respondent No. 2 appeared before the said

Committee on December 30, 1999 and prayed to grant

time. The record shows that thereafter the respondent

No. 2 was not interested in prosecuting the inquiry

before the Scrutiny Committee. The respondent No. 2

filed Writ Petition No. 879 of 1999 challenging the order

dated May 4, 1998 by which his services were

terminated by the appellant. The Bombay High Court,

Nagpur Bench, by judgment dated April 17, 2000,

dismissed the said writ petition with the observation

that the respondent No. 2 was not interested in

proceeding further with the inquiry before the Scrutiny

Committee and was delaying the entire proceedings on

some or the other pretext.

3. After dismissal of the writ petition, the respondent

No. 2 appeared before the Scrutiny Committee on

April 24, 2000, but prayed to grant time.

Therefore, the Scrutiny Committee adjourned the

hearing to June 26, 2000. On the said date also 5 the respondent No. 2 requested for more time,

which was granted by the Scrutiny Committee.

Thereafter, the respondent No. 2 did not appear

before the said Committee at all and, therefore, the

Scrutiny Committee decided to close the matter of

verification of tribe claim of the respondent No.2,

by order dated November 13, 2000. After a lapse

of about three years from the date of dismissal of

Writ Petition No. 879 of 1999, the respondent No.2

applied to the Government to reinstate him in

service claiming that he belongs to S.B.C. category

and should be granted protection of Government

Resolution dated June 15, 1995. The said

Resolution dated June 15, 1995, inter alia,

specifies as to which Caste should be considered

as Special Backward Class. The Rural

Development and Water Conservation Department

of the Government of Maharashtra, therefore,

addressed a letter dated February 6, 2002 to the

appellant stating that the respondent No. 2 was

appointed as Assistant Teacher by order dated 6 October 6, 1992 (correct date of the appointment is

January 16, 1993) by the appellant on the post

reserved for Scheduled Tribe and even if the

certificate indicating that he belongs to Scheduled

Tribes was invalidated by the Scrutiny Committee,

he would be entitled to get protection in service in

view of Government Resolution dated June 15,

1995 because he has submitted a validity

certificate indicating that he belongs to Special

Backward Class. By the said letter the appellant

was directed to take necessary action in the

matter. In spite of the protection given by the

Government, the respondent No. 2 was not

reinstated in service. Therefore, he filed Writ

Petition No. 1764 of 2003 challenging the order

dated May 4, 1998 terminating his services. The

Division Bench of the High Court of Judicature at

Bombay, Nagpur Bench, has allowed the same by

judgment dated August 31, 2004, giving rise to the

instant appeal.

7

4. This Court has heard the learned counsel for the

parties and considered the documents forming

part of the appeal.

5. From the record, it is evident that the stand of the

respondent No. 1, i.e., the State of Maharashtra, is

that the respondent No. 2 is entitled to the

protection of Government Resolution dated June

15, 1995. The well settled principle of law is that

once the certificate indicating that a person

belongs to Scheduled Tribe is invalidated by the

Caste Scrutiny Committee, his appointment

becomes void from the beginning. The void

appointment could not have been validated by the

Government by addressing a communication to the

appellant. The case of the appellant before the

High Court was that from the quota made available

to Special Backward Class candidates, the post

was filled up and no vacant post was available.

However, the High Court, by order dated December

16, 2003, directed the appellant to place a staffing

pattern including the sanctioned posts available 8 and the occupation thereof by different candidates

and clarified that the writ petition filed by the

respondent No. 2 would be heard thereafter finally

at the stage of admission.

6. In view of the above mentioned direction given by

the High Court the appellant furnished necessary

particulars by filing reply. In the reply it was

pointed out that the Education Officer, Primary,

Z.P., Buldhana vide letter dated January 2, 2004

had informed the appellant that in the category of

Secondary School Teachers, there were four posts

reserved for S.B.C. and all of them were filled up as

under: -

LOWER GRADE ASSISTANT TEACHER

S.No. Caste Sanctioned Posts Vacant Posts Posts filled in

1. Open 155 146 09

2. S.B.C. 04 04 --

S.B.C.: -

1. Sunil Meharkar

2. Ku. Jyoti Dnyaneshwar Thakre-Palshi Bu. 9

3. Ku. Jyoti Prabhakar Bawatkar-Mangrul Nawaghare

4. Vilas Sitaram Wawre

Though these particulars were placed before the

Division Bench of the High Court by way of reply filed

on behalf of the appellant, the Division Bench did not

record any finding as to whether the posts reserved for

Special Backward Class were available or not and has,

by the impugned judgment, directed the appellant to

reinstate the respondent No. 2 in service forthwith

pursuant to order dated February 6, 2002, passed by

the Government with back wages from the date of

passing of the order by the State Government and to

grant the benefit of continuity in service on

reinstatement. What is relevant to notice is that the

data, which was produced by the appellant before the

Division Bench of the High Court by filing reply, which

indicated that no S.B.C. post was available, was not

controverted by the State of Maharashtra at all. The

record shows that pursuant to the judgment of the High

Court, impugned in this appeal, the respondent No. 2

has already been reinstated in service. The record 10 would also show that the respondent No. 2 was in

service from January 16, 1993 till May 4, 1998 when

his services were terminated as his Caste Certificate was

invalidated by the Caste Scrutiny Committee. Again, he

is in service after impugned judgment was rendered on

August 31, 2004 till date and, therefore, it would be

harsh to direct termination of services of the respondent

No. 2. This Court further finds that Government had

passed the order on February 6, 2002 on the basis of

certificate produced by the respondent No. 2, which

indicated that he belongs to Special Backward Class.

The record also shows that he had produced this

Certificate dated June 12, 2002 indicating that he

belongs to Special Backward Class before the

appointment, but the appellant had not taken any steps

to get it verified through the Caste Scrutiny Committee.

In view of the fact that no post belonging to the Special

Backward Class category is available with the appellant,

this Court is of the opinion that interest of justice would

be served if the Government is directed to create

supernumerary post in the appellant No. 1 institution to 11 accommodate the respondent No. 2 with liberty to get

the said Caste Certificate verified through the Caste

Scrutiny Committee.

7. For the foregoing reasons the appeal partly

succeeds. The respondent No. 1, i.e., State of

Maharashtra, is directed to create a

supernumerary post in the appellant No. 1

institution to accommodate the respondent No. 2

as early as possible and preferably within two

months from the date of receipt of the writ from

this Court. It would be open to the State of

Maharashtra and the appellant to get the Caste

Certificate dated June 12, 2002, submitted by the

respondent No. 2, indicating that he belongs to

Special Backward Class, verified from the Caste

Scrutiny Committee. If the Caste Scrutiny

Committee comes to the conclusion that the Caste

Certificate submitted by the respondent No. 2 is

valid, he would be continued in service and

granted all benefits except back wages from

February 6, 2002 to the date of his reinstatement 12 in service pursuant to the impugned judgment. If

the claim made by the respondent No. 2 that he

belongs to Special Backward Class is not upheld

by the Caste Scrutiny Committee, the appellant

would be entitled to take appropriate action

against him in accordance with law.

8. Subject to above mentioned observations and

clarifications the appeal stands disposed of. There

shall be no order as to costs.

..............................J. [J.M. Panchal]

................................J. [Mukundakam Sharma]

New Delhi;

April 22, 2010