Mohd. Asif vs State Of Maharashtra & Ors

MOHD. ASIF ... Appellant

Versus

STATE OF MAHARASHTRA & ORS. ... Respondents

J U D G M E N T

CYRIAC JOSEPH, J.

1. Leave granted.

2. This appeal by special leave is filed against the judgment dated

21.11.2007 passed by the Nagpur Bench of the High Court of Bombay

dismissing Writ Petition No. 995 of 2007 filed by Mohd. Asif, the

appellant herein.

3. According to the appellant, his ancestors were residents of

Rajnandgaon which was earlier part of the State of Madhya Pradesh

and is now part of the State of Chattisgarh. According to the

Certificate dated 16.12.1988 issued by the Naib Tahsildar of the

Rajnandgaon, the appellant belongs to Muslim Pathan Behna Caste

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which was recognized as OBC (Other Backward Classes) in the State

of Madhya Pradesh. The appellant's family had shifted to Kamptee in

the Nagpur district of Maharashtra and had become permanent

residents of Nagpur district. Admittedly, caste `Behna' is recognized

as a Scheduled Caste in the State of Maharashtra.

4. As per order dated 22.06.1992, the appellant was appointed as

an Assistant Teacher by respondent No.2 - Municipal Council,

Bhandara in Nagar Parishad Urdu High School, Bhandara

(respondent No.3) run by the said Municipal Council. His

appointment was in the category reserved for Scheduled Castes.

5. As per the Certificate dated 21.09.1995 issued by the Executive

Magistrate, Kamptee, Nagpur, the appellant belongs to the caste

`Behna' which is recognized as Scheduled Caste in the State of

Maharashtra.

6. However, on the basis of a complaint dated 24.04.2003 filed by

one Sattar Khan, President, Nagar Sudhar Nagrik Samiti, Bhandara,

the Divisional Caste Certificate Scrutiny Committee (for short `the

Committee) conducted an inquiry regarding the caste of the appellant.

By an order dated 22.03.2006, the Committee came to the conclusion

that the appellant failed to submit proof/evidence to show that he

belongs to caste `Behna' and rejected the appellant's claim that he

belongs to caste `Behna'. Challenging the order of the Committee, the

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appellant filed Writ Petition No. 1993 of 2006 in the Nagpur Bench of

the High Court of Bombay. While the said Writ Petition was pending

before the High Court, the Standing Committee of respondent No.2 -

Municipal Council passed a Resolution dated 27.06.2006 treating the

appointment of the appellant as an appointment in the open category.

The Standing Committee took such a decision in the light of

Maharashtra Government Order dated 07.12.2001 permitting

conversion of post reserved for Scheduled Castes in the Urdu medium

schools into open category post and for filling up such post by open

category candidates. However, it was also stated in the Resolution of

the Standing Committee that its decision will be subject to the

decision of the High Court in the pending Writ Petition. In the light of

the above-mentioned Resolution of the Standing Committee, the

appellant sought permission of the High Court to withdraw his Writ

Petition and accordingly Writ Petition No. 1993 of 2006 was disposed

of as withdrawn on 10.08.2006.

7. After such disposal of the Writ Petition, in its General Meeting

the Municipal Council passed Resolution No. 52 dated 08.09.2006

approving the Resolution dated 27.06.2006 of the Standing

Committee treating the appellant as a candidate in the open category.

In spite of the decisions of the Standing Committee and the Municipal

Council, the Chief Officer of the Municipal Council appears to have

sought guidance from the Director of Municipal Administration,

Nagpur and the Collector, Bhandara regarding further action to be

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taken in the matter. The Director of Municipal Administration

informed the Municipal Council that since the Caste Certificate of the

appellant was invalidated by the Committee, new recruitment process

should be started and in the new recruitment process, the appellant

also could apply.

8. Thereupon, the appellant filed Writ Petition No. 995 of 2007 in

the Nagpur Bench of the High Court of Bombay challenging the order

dated 23.11.2006 of the Director of Municipal Administration

directing to start new recruitment process. There was also a prayer

for a direction to the respondents to continue the services of the

appellant on the same post by treating him as an open category

candidate and grant him all consequential benefits. The said Writ

Petition was dismissed by the High Court as per the impugned order

dated 21.11.2007.

9. From a perusal of the impugned judgment of the High Court, it

is seen that the appellant raised an alternative contention based on a

Government Resolution dated 30.06.2004 which, according to the

learned Additional Government Pleader, was only applicable to the

candidates belonging to Scheduled Tribes. The High Court accepted

the contention of the learned Additional Government Pleader and

dismissed the Writ Petition without considering the Resolution dated

27.06.2006 of the Standing Committee and the Resolution dated

08.09.2006 of the Municipal Council by which the appellant was

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treated as a candidate in the open category and also the Government

Resolution dated 07.12.2001 based on which the said Resolutions

were passed. Therefore, we are of the view that the High Court failed

to properly consider the claims and contentions of the appellant and

the impugned judgment is vitiated by non-application of mind and

hence liable to be set aside.

10. Therefore we set aside the impugned order of the High Court

and remand the matter back to the High Court with a request to

consider the matter afresh and pass appropriate orders in the writ

petition in accordance with law as early as possible. All contentions of

the parties are left open. Till such fresh disposal of the writ petition,

status quo as on today shall be maintained with regard to the

appointment of the appellant.

11. The appeal is allowed to the above extent. There will be no

order as to costs.

.............................................J.

(CYRIAC JOSEPH)

............................................J.

(RANJANA PRAKASH DESAI)

New Delhi;

January 27, 2012.