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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6550 OF 2015
PETITIONER :- Shankar S/o Namdeo Kumbhare, Aged about
46 years, Occ-Nil, R/o Village-Pardi (Kupi),
Gadchiroli, Tahsil and District-Gadchiroli.
...VERSUS...
RESPONDENTS :- 1) The State of Maharashtra, through its
Secretary, Department of Rural
Development & Water Conservation,
Mantralaya, Mumbai-32.
2) The Zilla Parishad, Gadchiroli, through its
Chief Executive Officer.
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Mr.N.A.Jachak, counsel for the petitioner.
Mr.K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondent No.1.
Mr. H.A.Deshpande, counsel for the respondent No.2.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 13.06.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this writ petition, the petitioner seeks the protection of his services in view of the law laid down by the Full Bench of this court, in the judgment reported in 2015 (1) Mh.L.J. 457 (Arun Sonone v. State of Maharashtra).
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2. The petitioner was appointed as a multipurpose health worker on 21/06/1999 on a post reserved for the scheduled tribes. The petitioner claimed to belong to Halba scheduled tribe and the caste claim of the petitioner was referred to the scrutiny committee for verification. The scrutiny committee invalidated the claim of the petitioner by an order dated 16/01/2001. The respondent-zilla parishad terminated the services of the petitioner by the order dated 05/05/2001. The order of the scrutiny committee and the order of termination were challenged by the petitioner in Writ Petition No.2003 of 2001. This court did not grant any interim relief in favour of the petitioner, with the result that the petitioner remained out of service till the writ petition was decided on 16/01/2012 and a direction was issued to the scrutiny committee to re-decide the caste claim of the petitioner after giving an opportunity of hearing. The scrutiny committee again invalidated the caste claim of the petitioner by the order dated 14/12/2012. The petitioner did not challenge the order of invalidation of his caste claim. After the Full Bench of this court rendered the judgment reported in 2015 (1) Mh.L.J. 457, laying down the guidelines for protecting the services of the employees that were appointed before the cut-off date on the basis of their caste claim but whose caste claim was invalidated, the petitioner has filed the instant petition seeking the protection of his services on the post of multipurpose health worker.
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3. Shri Jachak, the learned counsel for the petitioner, submitted that in view the judgment of the Full Bench, the services of the petitioner are liable to be protected. It is submitted that the petitioner was appointed before the cut-off date i.e. 28/11/2000 and there is no observation in the order of the scrutiny committee that the petitioner had fraudulently secured the benefits meant for the Halba scheduled tribes. It is submitted that both the conditions that are required to be fulfilled while seeking the protection of the services stand fulfilled in the case of the petitioner. The learned counsel relied on the unreported judgment of this court, dated 03/07/2015 in Writ Petition No.2162 of 2015 as also the judgment of the Full Bench for seeking the protection of his services. It is submitted that the petitioner was appointed on probation for a period of one year and after the probation period was completed, though an order of confirmation is not issued in favour of the petitioner, there is also no order continuing the probation period, with the result that the services of the petitioner are deemed to have been confirmed.
4. Shri Deshpande, the learned counsel for the respondent- zilla parishad, denied the claim made by the petitioner. It is submitted that the services of the petitioner cannot be protected for more reasons than one. It is submitted that as per rule 6 of the Maharashtra Zilla Parishad Recruitment Rules, 1967, the services of an employee cannot ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:51:34 ::: 1306WP6550.15-Judgment 4/6 be confirmed unless he passes the departmental examination and an order of confirmation is actually issued in his favour. It is submitted that the petitioner had not passed the departmental examination and the petitioner's services were never confirmed by the zilla parishad before his services were terminated by the order, dated 05/05/2001. The learned counsel relied on the judgment of the Hon'ble Supreme Court, reported in (2001) 7 SCC 161 (High Court of M.P. v. Satya Narayan Jhavar) to substantiate his submission that the continuance in service after the expiry of the probation period would not result in deemed confirmation of the employee on the post on which he was appointed. It is submitted that since the petitioner was not confirmed in service and since the petitioner has worked for less than two years with the zilla parishad and has thereafter not worked for a period of more than sixteen years, the services of the petitioner cannot be protected. It is submitted that in any case, there is no vacancy in the post of multipurpose health worker in the respondent-zilla parishad that could be filled by nomination. It is submitted that the judgment reported in 2015 (1) Mh.L.J. 457 cannot be applied to the case like the one in hand.
5. On hearing the learned counsel for the parties, it appears that the services of the petitioner cannot be protected in the circumstances of the case. The appointment order of the petitioner ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:51:34 ::: 1306WP6550.15-Judgment 5/6 clearly recites that the petitioner was appointed temporarily on the post of multipurpose health worker. Condition No.2 of the appointment order further recites that the petitioner is appointed on probation for a period of one year as per rule 6(5) of the Maharashtra Zilla Parishad Recruitment Rules. The zilla parishad has never passed an order of confirmation in favour of the petitioner. Rule 6(6) of the Rules clearly provides that the services of an employee cannot be confirmed unless he passes the departmental examination. Also, it is clear that from the judgment of the Hon'ble Supreme Court that merely because the employee continues in service after the completion of the period of probation, he cannot be deemed to be a confirmed employee. In the instant case, as per rule 6(6) of the Rules, it was necessary for the petitioner to have passed the departmental examination before his services could be confirmed. In any case, we do not find that the petitioner's services are confirmed by the zilla parishad, by an order of confirmation. The services of the petitioner were terminated on 05/05/2001. The petitioner had worked for less than two years with the zilla parishad before his services were terminated and has thereafter remained out of service for more than sixteen years. Reinstating a person like the petitioner in service and granting him the benefit of continuity of service would result in causing great hardship to the other eligible candidates, who belong to a particular caste to which the petitioner had claimed to belong, but has failed to substantiate his caste ::: Uploaded on - 15/06/2017 ::: Downloaded on - 16/06/2017 00:51:34 ::: 1306WP6550.15-Judgment 6/6 claim. Merely because the petitioner was appointed before the cut-off date, the services of the petitioner cannot be protected when he was not a confirmed employee of the zilla parishad before his services were terminated. We have held in the judgment reported in 2016 (4) Mh.L.J. 775 (Dilip v. Divisional Controller) that when an employee is not granted permanency before the cut-off date, he would not be entitled to protection. The unreported judgment of this court, dated 03/07/2015 in Writ Petition No.2162 of 2015 would not apply to the peculiar facts of this case, specially when the services of the petitioner were not confirmed before he was terminated by the order dated 05/05/2001.
In the result, the writ petition fails and is dismissed with no order as to costs. Rule stands discharged.
JUDGE JUDGE
KHUNTE
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