Chief
Executive Officer, Zilla Parishad Vs. State of Maharashtra & Ors. [2010] INSC
343 (22 April 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 2048 OF 2007 Chief Executive Officer,
Zilla Parishad ...
Appellant
Versus State of Maharashtra & others ...Respondents
J.M.
PANCHAL, J.
1. The
challenge in this appeal is to the judgment dated August 31, 2004, passed by
the Division Bench of the High Court of Judicature at Bombay, Nagpur Bench, in
Writ Petition No. 1764 of 2003 whereby writ petition 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.
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.
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;
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