WP 1761/15 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1761/2015
Kamalkishor s/o Sitaram Gupta,
Aged about 64 years, Occ. Nil,
R/o Rama Bhavan, Sabnis Plot, Amravati,
Tah. And Distt. Amravati. PETITIONER
VERSUS
1. State of Maharashtra,
through its Secretary
Education Youth Welfare Department,
Mantralaya, Mumbai-32.
2. Director of education,
Central Building, Pune.
3. Dy. Director of Education,
Amravati Division, Amravati.
4. Education Officer,
Zilla Parishad (Secondary), Amravati.
5. Nutan Vidarbha Shikshan Mandal,
Jog Chowk, Amravati,
Through its Secretary.
6. The Head Master,
New High School Main,
Amravati, Tah and Distt. Amravati. RESPONDENTS
Shri P.J. Mehta, counsel for the petitioner.
Shri Ambarish Joshi Assistant Government Pleader for the respondent nos.1 to 4.
Shri Maheshwari holding for Shri Anand Parchure, counsel for the respondent
nos.5 and 6.
CORAM : SMT. VASANTI A. NAIK AND
A.S. CHANDURKAR, JJ.
DATE : FEBRUARY 24 , 2016.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
RULE. Rule is made returnable forthwith. The petition is
heard finally at the stage of admission with the consent of the learned counsel for the parties.
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2. By this petition, the petitioner seeks the protection of his services on the invalidation of his caste claim in view of the judgment of the Full Bench reported in 2015(1) Mh.L.J. 457 (Arun Vishwanath Sonone Versus State of Maharashtra & Others).
3. The petitioner was appointed as a Physical Training Instructor in a clear and permanent vacancy on 16.12.1982. Since, as per the management, the post on which the petitioner was appointed was earmarked for the Scheduled Tribes, the management sent the caste certificate of the petitioner to the Scrutiny Committee, for verification.
However, by the order dated 07.11.2001, the claim of the petitioner of belonging to Bhunjia Tribe was invalidated by the Scrutiny Committee.
On 07.11.2001, the services of the petitioner were terminated. The petitioner has attained the age of superannuation in December-2008. In this background, the petitioner has filed the instant petition by taking the benefit of the judgment reported in 2015(1) Mh.L.J. 457 (Arun Vishwanath Sonone Versus State of Maharashtra & Others) to seek the protection of his services till he attained the age of superannuation in December-2008, as the petitioner was appointed in the year 1982, i.e. before the cut-off date, and as there is no observation in the order of the Scrutiny Committee that the petitioner had fraudulently secured the benefits meant for the Bhunjia Scheduled Tribe.
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4. Shri Mehta, the learned counsel for the petitioner, submitted that the petitioner was appointed in the year 1982, before the cut-off date and as there is no observation in the order of the Scrutiny Committee that the petitioner had fraudulently secured the benefits that are meant for the Bhunjia Scheduled Tribe, the petitioner is entitled for the protection of services. It is stated that the caste claim of the petitioner is invalidated as the petitioner could not prove the same on the basis of the documents and the affinity test. It is stated that since the conditions that are required to be satisfied while securing the benefit of protection of service in view of the judgment of the Full Bench reported in 2015(1) Mh.L.J.
457 (Arun Vishwanath Sonone Versus State of Maharashtra & Others), stand satisfied in the case of the petitioner, the services of the petitioner need to be protected.
5. Shri Joshi, the learned Assistant Government Pleader for the respondent nos.1 to 4 and Shri Maheshwari, the learned counsel for the respondent nos.5 and 6, do not dispute the position of law as laid down by the Full Bench. It is admitted that the petitioner was appointed in the year 1982 and there is no observation in the order of the Scrutiny Committee that the petitioner has fraudulently secured the benefits meant for the Bhunjia Scheduled Tribe. It is stated that an appropriate order may be passed in the circumstances of the case.
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6. On a reading of the judgment of the Full Bench and on hearing the learned counsel for the parties, it appears that the services of the petitioner needs to be protected till he attained the age of superannuation. The petitioner was appointed before the cut-off date and we find that there is no observation in the order of the Scrutiny Committee that the petitioner had fraudulently secured the benefits meant for the Bhunjia Scheduled Tribe. We find that the caste claim of the petitioner is rejected only because the petitioner could not prove the same on the basis of the documents and the affinity test. Since the conditions that are required to be satisfied while granting the benefit of protection of services stand satisfied in the case of the petitioner, a direction to the respondents to protect the services of the petition till he attained the age of superannuation, is necessary.
7. Hence, for the reasons aforesaid, the writ petition is allowed.
The respondent nos.5 and 6 are directed to protect the services of the petitioner till December-2008, i.e. when the petitioner has attained the age of superannuation, on the petitioner furnishing an undertaking in this Court and to the respondent nos.5 and 6 that neither the petitioner nor his progeny would secure the benefits meant for the Bhunjia Scheduled Tribe, in future. Though the petitioner would be entitled to the continuity of service till December-2008, the petitioner would not be ::: Uploaded on - 29/02/2016 ::: Downloaded on - 31/07/2016 06:30:08 ::: WP 1761/15 5 Judgment entitled to the arrears of salary or any other monetary benefits for the period from 07.11.2001 to December-2008. The respondent nos.5 and 6 are directed to prepare the pension case of the petitioner and submit the same to the concerned respondents within a period of two months. The petitioner should cooperate with the respondent nos.5 and 6 in preparing the pension case. It is needless to mention that the petitioner would be entitled to pension only from February-2015 as the petitioner has filed the instant petition for protection, on 29.01.2015. The arrears of pensionary benefits should be paid to the petitioner within a period of five months from today and the regular pension should also be paid to the petitioner within the same period.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
APTE
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