Mohd. Asif Vs. State of
Maharashtra & Ors.
[Civil Appeal No.1094
of 2012 arising out of SLP (C) No. 23840 of 2007]
J U D G M E N T
CYRIAC JOSEPH, J.
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.
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 which was
recognized as OBC (Other Backward Classes) in the State of Madhya Pradesh.
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.
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.
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.
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
Challenging the order
of the Committee, the 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.
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 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.
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.
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 treated as a candidate in the open category and also the
Government Resolution dated 07.12.2001 based on which the said Resolutions were
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.
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.
appeal is allowed to the above extent. There will be no order as to costs.
(RANJANA PRAKASH DESAI)