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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3948 OF 2013
1. Mohd. Nadim Mohd. Sabeer,
Aged - Major, Occ. Service,
Resident of Firdoj Colony, Akola.
2. Mohd. Tanveer Mohd. Shahjuddin,
Aged - Major, occ. Service,
Resident of Datta Mandir,
Station Road, Murtizapur.
3. Juber Aslamkhan Mohd. Daoodkhan,
Aged - Major, occ. Service working at
Akot, Resident of Anjagaon Surji,
Dist. Amravati.
4. Jafar Ahmad Ab Shakur,
Aged - Major, occ. Service,
Resident of Mominpura,
Akola, Dist. Akola.
5. Shaikh Abdul Rashid Abdul Nakib,
Aged - Major, occ. Service working at
Balapur, Resident of Mana,
District Akola.
6. Mohd. Samir Parvej Ab. Hamid,
Aged - Major, occ. Service (Secondary
Teacher) working at Akot,
Resident of Anjangaon Surji,
Dist. Amravati. ..... PETITIONERS
...V E R S U S...
1. State of Maharashtra
through its Secretary,
General Administration
Department, Mantralaya,
Mumbai - 400032.
2. Collector, Akola and Chairman of
Subordinate Selection Committee.
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3. Education Officer (Primary),
Zilla Parishad, Akola.
4. Zilla Parishad, Akola through its
Chief Executive Officer.
5. Deputy Chief Executive Officer,
Zilla Parishad, Akola.
6. Scheduled Tribe Caste Certificate
Scrutiny Committee, Amravati. ... RESPONDENTS
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Mr. P. C. Madkholkar, Advocate for the petitioners.
Mr. K. L. Dharmadhikari, AGP for the respondent Nos.1, 2 and 6.
Mr. G. G. Mishra, Advocate for respondent Nos.3 to 5.
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CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :-
07/06/2017.
ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.) By this petition, the petitioners have challenged the Government Circular dated 18th May, 2013 as void, being beyond the legislative competence of the State Government. The petitioners have also challenged the orders of the respondent - Zilla Parishad terminating the services of the petitioners.
According to the petitioners, the petitioners were appointed from the open category on the posts of Shikshan Sevaks. It is case of the petitioners that the respondent - Zilla Parishad illegally asked the petitioners to produce the caste validity certificate and as the ::: Uploaded on - 13/06/2017 ::: Downloaded on - 15/06/2017 00:05:59 ::: 3 J-WP-3948-13.odt petitioners were not able to produce the same, the Zilla Parishad has terminated the services of the petitioners on the post of Assistant Teachers. The petitioners have challenged the termination order as also the Government Circular dated 18th May, 2013 providing that the responsibility to prove that the employees appointed from the reserved category belong to the same category, would be of the employees and if they are not able to submit the application for verification of their caste claim along with relevant documents for proving their claim to the Scrutiny Committee, one month notice should be served on them asking them to produce the relevant documents for verification of their caste claim or else their services would be terminated.
Shri P. C. Madkholkar, the learned counsel for the petitioners submitted that the petitioners were appointed on the posts that were meant for the open category and were not appointed in the posts meant for the reserved categories. It is submitted that it was therefore not necessary for the petitioners to produce the caste validity certificate or to tender the documents for verification of their caste claim. It is submitted that in any case, the Government Circular dated 18/05/2013 that permits the employer to take action against the employees for the termination of their services, if they fail to produce the requisite documents for verification of their caste claim immediately or within a month is bad in law. It is submitted that the policy of the ::: Uploaded on - 13/06/2017 ::: Downloaded on - 15/06/2017 00:05:59 ::: 4 J-WP-3948-13.odt State Government in this regard is arbitrary and the Government Circular is liable to be set aside. It is submitted that since the petitioners were appointed from the open category, they had not submitted the relevant documents. It is further submitted that if this Court is of the view that the petitioners were appointed on the posts meant for the reserved categories, this Court may permit the petitioners to submit the relevant documents within a reasonable time and direct the respondent
- Zilla Parishad to refer the caste claim of the petitioners to the Scrutiny Committee for verification.
Shri Dharmadhikari, learned Assistant Government Pleader appearing for the State Government and the Scrutiny Committee states that as per the new policy, it would be necessary for the petitioners to tender their applications for verification of their caste claim on-line, in the proper format along with the necessary documents and if the petitioners submit the same to the Scrutiny Committee (on- line), the Scrutiny Committee would verify the caste claim of the petitioners.
Shri Mishra, the learned counsel for the respondent Nos.3 to 5 has denied the claim of the petitioners. It is submitted that the petitioners were appointed on the posts meant for the reserved categories, inasmuch as almost all the petitioners were appointed on the ::: Uploaded on - 13/06/2017 ::: Downloaded on - 15/06/2017 00:05:59 ::: 5 J-WP-3948-13.odt posts reserved for the Scheduled Tribes and the Vimukta Jatis. The learned counsel has sought to substantiate the said fact by referring to the appointment orders of the petitioners that are annexed to the affidavit-in-reply. It is submitted that the petitioners had filed Writ Petition No.3509/2007 for a direction against the respondent Nos.3 to 5 to consider the employment of the petitioners from the open category by referring to the Government Circular dated 07/12/2001. It is submitted that it is apparent that the petitioners were appointed on the posts meant for the reserved categories i.e. Scheduled Tribes and Vimukta Jatis and hence, there is no merit in the claim of the petitioners that they were appointed on the posts meant for the open category. It is submitted that since the petitioners did not submit the relevant documents for verification of their caste claim, despite the notice in that regard, the respondents took a conscious decision of terminating the services of the petitioners. It is submitted that as per the request of the learned counsel for the petitioners, if the petitioners are permitted to tender their application to the Scrutiny Committee for verification of their claims, directions may be issued to the Scrutiny Committee to decide the caste claim of the petitioners at the earliest, so that the respondents could take appropriate action against the petitioners, if their caste claim is invalidated.
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6 J-WP-3948-13.odt On hearing the learned counsel for the parties and on a perusal of the documents annexed to the petition and the affidavit-in- reply filed on behalf of the respondent Nos.3 to 5, it appears that there is no merit in the submission made on behalf of the petitioners that the petitioners were appointed on the posts meant for the open category. Though, the petitioners were appointed on the posts of Shikshan Seveks, the petitioners have not annexed the appointment orders to the writ petition. Had the appointment orders been annexed, this Court would have noticed, at the outset that the petitioners were not appointed on the posts meant for the open category. The respondents have annexed the appointment orders of the petitioners to the affidavit- in-reply. These appointment orders clearly show that the appointment of the petitioners was made on the posts i.e. earmarked for the Scheduled Tribes and the Vimukta Jatis. In the previous petition filed by the petitioners, the petitioners had prayed that the respondent Nos.3 to 5 may be directed to consider their appointments from the open category on the basis of the Circular of the year 2001 and this shows that the petitioners were clearly aware that they were appointed on the posts meant for the reserved categories and not for the open category. It was necessary for the petitioners to have submitted the relevant documents to the respondent Nos.3 to 5 for verification of their caste claim. However, the petitioners failed to produce the documents, though their appointments were made after coming into force of the Act ::: Uploaded on - 13/06/2017 ::: Downloaded on - 15/06/2017 00:05:59 ::: 7 J-WP-3948-13.odt No.23 of 2001. The respondents had therefore rightly taken a decision of terminating the services of the petitioners on their failure to produce the documents pertaining to their caste claim, so that their caste claim could be verified.
We find no merit in the submission made on behalf of the petitioners that the Government Circular dated 18 th May, 2013 is bad in law. The said submission is not substantiated. In any case, we do not find as to how the Government Circular that permits the employer to take the action of termination of services of the employee who refuses to tender the documents for verification of his / her caste claim, though he or she is appointed on the post ear-marked for the reserved category, is bad in law.
Be that as it may, since the petitioners are now ready to get their caste claim verified from the Competent Scrutiny Committee, in the facts and circumstances of the case and in the interest of justice, it would be necessary to permit the petitioners to submit the applications to the Scrutiny Committee (on-line) within 45 days. It would be necessary to direct the Scrutiny Committee to decide the applications, if submitted by the petitioners, within 15 months from the receipt thereof. Since the petitioners are working since long, it would be necessary to protect the services of the petitioners till their caste claim is ::: Uploaded on - 13/06/2017 ::: Downloaded on - 15/06/2017 00:05:59 ::: 8 J-WP-3948-13.odt decided.
For the reasons aforesaid, the writ petition is partly allowed. The petitioners are hereby directed, in view of their request, to submit their caste claim to the Scrutiny Committee (on-line) for verification within 45 days. If the application is so made, the respondent No.6 - Scrutiny Committee is directed to decide the caste claim of the petitioners within 15 months from the date of receipt of the same. The respondent Nos.3 to 5 are directed to take appropriate action against the petitioners, if they fail to submit the caste claim to the Scrutiny Committee within the stipulated period. The services of the petitioners are protected till their caste claim is decided.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Choulwar
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