Smt. Sarita Wd/O Vijay Giri vs Divisional Caste Scrutiny Thr. ...
2016 Latest Caselaw 1652 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH AT NAGPUR




                                                                                              
                                   WRIT PETITION NO.43/2016




                                                                    
          Smt. Sarita wd/o Vijay Giri, 
          aged about 46 years, Occ. Service,
          r/o Plot No. 3/7, V.H.B. Colony, Raghuji
          Nagar, Chhota Tajbag Road, Nagpur.                          .....PETITIONER




                                                                   
                                     ...V E R S U S...

     1. Divisional Caste Scrutiny Committee
        No.3, Nagpur Division, Nagpur,through




                                                   
        its Member-Secretary.
                              
     2. Senior Treasury Officer,
          Nagpur Treasury Nagpur.                                     ...RESPONDENTS
     ---------------------------------------------------------------------------------------------------
     Mr. N. D. Thombre, Advocate for petitioner.
                             
     Mr. N. R. Rode, Assistant Government Pleader for respondents.
     ---------------------------------------------------------------------------------------------------

                                     CORAM:-  SMT. VASANTI A. NAIK AND
      

                                               V. M. DESHPANDE, JJ.

DATED :- APRIL 20, 2016

ORAL JUDGMENT (Per : Smt. Vasanti A. Naik, J.)

Rule. Rule made returnable forthwith. Heard finally at the

stage of admission with the consent of the learned counsel for the

parties.

2. By this writ petition, the petitioner seeks the protection of

her services on the post of Junior Clerk. The petitioner has challenged

the order of proposed termination, dated 24.11.2015.

3. The husband of the petitioner, Shri Vijay Giri was working

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as a Forest Guard in the Forest Department of the State Government.

The husband of the petitioner expired while in service on 03.05.1999.

After the death of the husband of the petitioner, the petitioner applied

to the Collector, Nagpur for appointment on compassionate ground.

The Collector, Nagpur recommended the name of the petitioner for

appointment on the post of Junior Clerk to the respondent no.2 i.e. the

Senior Treasury Officer, Nagpur. Accordingly, after completing the

formalities, the petitioner was appointed on 16.08.2004 on the post of

Junior Clerk. The appointment order mentioned that the appointment

of the petitioner was on a post reserved for the Nomadic Tribes. Since,

the husband of the petitioner had claimed to belong to Gosavi-

Scheduled Tribe, the caste claim of the petitioner was referred by the

respondent no.2 to the Scrutiny Committee for verification. The

Scrutiny Committee invalidated the caste claim of the petitioner by an

order dated 24.07.2014. After the Scrutiny Committee invalidated the

caste claim of the petitioner, the respondent no.2 proposed to terminate

the services of the petitioner. The petitioner has challenged the order of

proposed termination and has sought a direction to the respondent no.2

to protect her services as she was appointed on compassionate ground

and the appointment could not have been made in a reserved category.

4. Mr. Thombre, the learned counsel for the petitioner

submitted that the husband of the petitioner was working as a Forest

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Guard and due to his sad demise while in service, the petitioner was

granted compassionate appointment. It is stated that compassionate

appointment could not have been grated on a post reserved for the

Nomadic Tribes. It is stated that there was no rule, regulation or

Government policy till the year 2004, when the petitioner was

appointed, to appoint a dependent on compassionate ground in a

reserved post. It is submitted that the caste claim of the petitioner was

invalidated as the petitioner had not produced the documents to show

that the petitioner originally resided in the State of Maharashtra. It is

stated that there is no observation of fraud recorded in the order of the

Scrutiny Committee. According to the learned counsel, since the

petitioner was appointed only on compassionate ground and since the

appointment on compassionate ground could not have been made in

the year 2004 by applying the reservation policy, the impugned order is

liable to be set aside.

5. Mr. Rode, the learned Assistant Government Pleader

appearing for the respondents supported the action of the respondents

and submitted that since the husband of the petitioner was appointed

on a post reserved for the Nomadic Tribes, the petitioner's appointment

was also considered to have been made on a post reserved for the

Nomadic Tribes. It is stated that it is mentioned in the appointment

order that the petitioner was appointed on a post earmarked for the

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nomadic tribes. It is stated that in this background, the relief sought by

the petitioner cannot be granted to her.

6. On hearing the learned counsel for the petitioner, it appears

that the services of the petitioner are required to be protected. The

husband of the petitioner had expired in the year 1999 and the

petitioner was appointed on compassionate ground. Since the

petitioner was appointed on compassionate ground, the reservation

policy could not have been applied by the respondent nos. 1 and 2

while making the appointment of the petitioner in the year 2004. There

is nothing placed by the respondents on record to show that as per the

policy of the State Government in the year 2004, compassionate

appointments could be made only by adhering to the reservation policy.

This Court has held in some of the decided writ petitions that the

reservation policy cannot be applied for the compassionate

appointments that are made before the issuance of the resolution by the

State Government on 18.05.2013. Since, the appointment of the

petitioner was made in the year 2004, the reservation policy could not

have been applied while making the appointment of the petitioner on

compassionate ground. Merely because there was a mention in the

appointment order that the petitioner was appointed on a post reserved

for the Nomadic Tribes, the action of the respondents in appointing the

petitioner on a post earmarked for the Nomadic Tribes cannot be

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upheld. In the absence of any policy, the appointment of the petitioner

could not have been made on a post reserved for the Nomadic Tribes

since her appointment was made on compassionate ground before

framing of the Government Resolution dated 18.05.2013. Also, we find

that there is no adverse observation against the petitioner in the order

of the Scrutiny Committee while invalidating the caste claim of the

petitioner and the caste claim is invalidated as the petitioner was not

able to produce the documents showing that she was a permanent

resident of the State of Maharashtra, before the relevant date.

7. Hence, for the reasons aforesaid, the writ petition is

allowed. The impugned order of proposed termination and the order of

termination of the services of the petitioner are quashed and set aside.

The appointment of the petitioner should be considered from the open

category.

Rule is made absolute in the aforesaid terms with no order

as to costs.

                     (V. M. Deshpande, J.)        (Smt. Vasanti A. Naik, J.)




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