WP 932/13 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 932/2013
Chandrashekhar s/o Brijbahadur Yadav,
aged about 38 years, occ. Service Junior Clerk
in Panchayat Samiti Jivti,
Resident of Chandrapur, District Chandrapur. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
Through its Secretary,
Ministry of Tribal Development Department,
Mantralaya, Mumbai-400 032.
2. Divisional Caste Scrutiny Committee No.2,
Nagpur Division, Chandrapur,
Chandrapur Milk Scheme Road, Jal Nagar,
Chandrapur through its Member-Secretary.
3. Chief Executive Officer,
Zilla Parishad, Chandrapur. RESPONDENTS
Shri N.C. Phadnis, Counsel for the petitioner.
Mrs. K.S. Joshi, Additional Government Pleaders for the respondent nos.1 and 2.
Shri M.M. Sudame, counsel for the respondent no.3.
CORAM :SMT.VASANTI A NAIK AND
A.D. UPADHYE, JJ.
DATE : 4 TH JANUARY, 2018.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.) By this writ petition, the petitioner has challenged the order of the respondent no.2-Divisional Caste Scrutiny Committee, Nagpur Division, Chandrapur, dated 16.01.2013 invalidating the claim of the petitioner of belonging to Ahir tribe, which falls under Nomadic Tribes category. The petitioner has sought a declaration that the invalidation of the caste claim of the petitioner would have no effect on the appointment of the petitioner as the same was made on compassionate ground. ::: Uploaded on - 09/01/2018 ::: Downloaded on - 10/01/2018 01:12:05 :::
WP 932/13 2 Judgment
2. Shri Phadnis, the learned counsel for the petitioner, states that the petitioner gives up the prayer in prayer clause (A), as the grievance of the petitioner would stand redressed if the prayer made by the petitioner in prayer clause (B) is granted. It is submitted that the petitioner would restrict the petition only to the prayer for a declaration that the appointment of the petitioner could not have been disturbed on the basis of the order passed by the scrutiny committee.
3. The petitioner was appointed as a Junior Assistant by the respondent no.3-Zilla Parishad on 12.12.2006. The mother of the petitioner was working as a Supervisor in the Integrated Child Development Scheme. The mother of the petitioner had expired while in service on 24.10.2005 and on an application made by the petitioner, the petitioner was appointed on compassionate ground in view of the death of his mother, while in service. Since the petitioner had claimed to belong to Ahir Nomadic Tribe, the caste claim of the petitioner was referred by the Zilla Parishad to the scrutiny committee, for verification. The scrutiny committee has invalidated the caste claim of the petitioner by the order dated 16.01.2013 that was impugned in this writ petition. In view of the invalidation of the caste claim, the respondent-Zilla Parishad sought to terminate the services of the petitioner on the post of Junior Assistant. In the aforesaid background, the petitioner had filed this writ ::: Uploaded on - 09/01/2018 ::: Downloaded on - 10/01/2018 01:12:05 ::: WP 932/13 3 Judgment petition challenging the order of the scrutiny committee and also seeking a declaration that the order of the scrutiny committee would not have any adverse effect on the services of the petitioner. Since the petitioner has given up the challenge to the order of the scrutiny committee, the petition is restricted only to the prayer in respect of the declaration that the order of the scrutiny committee would not have the consequence of terminating the services of the petitioner as the petitioner was appointed on compassionate ground.
4. Shri Phadnis, the learned counsel for the petitioner, submits that the issue involved in this case was also involved in more than a couple of writ petitions that came up for consideration before this Court and by the judgments in Writ Petition Nos.4185 of 2015 and 2174 of 2007, this Court had held that the services of an employee appointed on compassionate basis when the reservation policy was not applicable, could not have been terminated on the invalidation of the caste claim. It is stated that the judgments in the aforesaid writ petitions were relied on in the judgment in the case of Pramod Shinde Versus State of Maharashtra, reported in 2017 (3) Mh.L.J. 925 and it was held that the services of an employee appointed on compassionate basis could not have been terminated on the invalidation of his caste claim. It is stated that since the issue involved in this case stands answered in favour of the ::: Uploaded on - 09/01/2018 ::: Downloaded on - 10/01/2018 01:12:05 ::: WP 932/13 4 Judgment petitioner by the aforesaid judgments, a similar order needs to be passed in favour of the petitioner, on parity.
5. Mrs. Joshi, the learned Additional Government Pleader appearing for the scrutiny committee and Shri Sudame, the learned counsel for the Zilla Parishad do not dispute the position of law as laid down in the aforesaid judgments. It is, however, stated on behalf of the respondent no.3 that the judgments in the aforesaid cases would not apply to the case of the petitioner as the petitioner was appointed in a vacancy meant for the Nomadic Tribes. It is stated that an appropriate order may be passed in the circumstances of the case.
6. On a perusal of the judgments as also the appointment order of the petitioner, dated 12.12.2006, it appears that the petitioner would be entitled to the declaration that the respondent-Zilla Parishad would not be entitled to terminate the services of the petitioner on the invalidation of his caste claim as the petitioner was appointed on compassionate basis. It is apparent from a reading of the appointment order of the petitioner that the petitioner was appointed on compassionate basis. The mother of the petitioner was working as a Supervisor under the Integrated Child Development Scheme. Since the mother of the petitioner had expired in the year 2005 while in service, on a representation made by the petitioner for compassionate appointment, ::: Uploaded on - 09/01/2018 ::: Downloaded on - 10/01/2018 01:12:05 ::: WP 932/13 5 Judgment he was so appointed on the post of Junior Assistant by the order dated 12.12.2006. The petitioner appears to have been appointed on compassionate basis in view of the death of his mother in the year 2005, while in service. It is laid down by this Court in the judgments referred to hereinabove that when the reservation policy was not applicable to compassionate appointments, the services of the appointees cannot be terminated on the invalidation of their caste claim. Merely because the petitioner in this case, claimed to belong to Ahir Nomadic Tribe, his services could not have been terminated on the invalidation of his caste claim, when the petitioner was appointed on the post of Junior Assistant on compassionate basis in the year 2006, when admittedly the reservation policy was not applicable to compassionate appointments. The submission made on behalf of the respondent no.3 that the petitioner would not be entitled to any relief as the petitioner was appointed in a vacancy meant for the Nomadic Tribes, is not well founded and is liable to be rejected. Nothing is pointed out on behalf of the respondent no.3 to show that at the relevant time, in the year 2006, reservation policy was made applicable to the compassionate appointments. If the reservation policy was not applicable to compassionate appointments, the respondent no.3 could not have appointed the petitioner in a vacancy meant for the Nomadic Tribes. If the respondent no.3 had filled the vacancy meant for the Nomadic Tribes by appointing the petitioner in the said vacancy ::: Uploaded on - 09/01/2018 ::: Downloaded on - 10/01/2018 01:12:05 ::: WP 932/13 6 Judgment though the petitioner was entitled for appointment only on compassionate basis, the respondent no.3 has to blame itself. The appointment of the petitioner in a vacancy meant for the Nomadic Tribes would not disentitle the petitioner to the declaration as claimed, specially when it is laid down by this Court in the aforesaid judgments that the services of an employee appointed on compassionate basis cannot be terminated on the invalidation of his/her caste claim, if at the relevant time, the policy of reservation is not applicable to compassionate appointments. Since admittedly, the reservation policy was not applicable to compassionate appointments in the year 2006, the submission made on behalf of the respondent no.3 that the declaration as sought by the petitioner may not be granted, is liable to be rejected.
7. Hence, for the reasons aforesaid and also for the reasons recorded in the judgment reported in 2017 (3) Mh.L.J. 925 (Pramod Shivaji Shinde Versus State of Maharashtra & Others) and the judgments in Writ Petition Nos.4185 of 2015 and 2174 of 2007, the writ petition is allowed. It is hereby declared that the respondent no.3-Zilla Parishad would not be entitled to terminate the services of the petitioner as the petitioner was appointed on compassionate basis in the year 2006 when the reservation policy was not applicable for compassionate appointments.
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WP 932/13 7 Judgment Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
APTE
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