Bombay High Court
Dattatray Bhanudas Adatrao vs The State Of Maharashtra And ... on 19 July, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1374 OF 2016
Dattatraya s/o Bhanudas Adatrao,
age: 44 years, Occ: Nil,
R/o Haladgaon, Tq. Kallamb,
District Osmanabad. Petitioner
Versus
01 The State of Maharashtra,
through its Secretary,
General Administration Department,
Mantralaya, Mumbai-32.
02 The Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad,
through its Deputy Director/Member.
03 The Divisional Controller,
Maharashtra State Road Transport
Corporation, Osmanabad Division,
Tq. & District Osmanabad. Respondents
Mr.Pratap V. Jadhav, advocate for the petitioner.
Mr.P.S.Patil, A.G.P. for Respondent No.1.
Respondent No.2 stand deleted vide Court's order dated 3.2.2016.
Mr.D.S.Bagul, advocate for Respondent No.3.
CORAM : R.M.BORDE &
K.L.WADANE, JJ.
DATE : 19th July, 2016
PER COURT:
1 Heard.
2 Rule. Rule made returnable forthwith. With the consent of the
parties, petition is taken up for final disposal at admission stage.
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3 Petitioner claims to be belong to 'Koli Mahadev' Scheduled Tribe
and was possessed of the certificate issued in that regard. Petitioner has
been appointed as driver with respondent no. 3 as against the post
reserved for Scheduled Tribe category. Petitioner was appointed on
12.07.1999 on temporary basis and his appointment is regularised after
180 days. Since petitioner claimed employment as a member belonging
to Scheduled Tribe category, tribe certificate issued in his favour was
forwarded by the employer to the Scrutiny Committee. The Scrutiny
Committee, however, on recording evidence of the parties, directed
invalidation of the caste certificate issued in favour of the petitioner and,
as a consequence thereof, the services of petitioner were terminated on
06.02.2006.
4 Petitioner in the instant petition has claimed quashment of the
order of termination on the strength of the judgment delivered by the
Apex Court in the matter of State of Maharashtra Vs. Milind and others
reported in (2001) 1 SCC 4 and the decision of the Full Bench of this
Court in the matter of Arun Vishwanath Sonone Vs. State of Maharashtra
reported in 2015(1) Bom.C.R. 568. The Full Bench of this Court in
paragraph nos. 65, 66 and 72 of the judgment observed thus :
"65. The factual position to which the law
laid down is to be applied, is stated as
under :
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(a) Before coming into force of the said
Act on 18-10-2001, the appointments and
promotions were made against the post
reserved for Scheduled Castes, Scheduled
Tribes, Denotified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes
and Special Backward Classes category
(consolidatedly called as "the backward
class category") merely on the basis of the
production of the Caste Certificates issued
by the Competent Authorities with or
without the condition of producing a caste
validity certificate.
(b) The decision in Madhuri Patil's case
was delivered by the Apex Court on 2-9-
1994, and by issuing the Government
Resolutions dated 15-6-1995 and 30-6-
2004, all the appointments and promotions
made up to 15-6-1995 against a post
reserved for backward class category are
protected and such appointments and
promotions cannot be cancelled.
(c) After coming to force of the said Act
on 18-10-2001, no appointments and/or
promotions could be made without
production of a caste validity certificate
under sub-section (2) of section 6 of the
said Act, but it is a fact that some such
appointments have been made.
(d) In terms of the decision in Milind's
case, all the appointments that have
become final up to 28-11-2000 stand
protected subject to the conditions as under
:
(i) that upon verification by the
Scrutiny Committee, the Caste Certificate
produced to secure an appointment, is not
found to be false or fraudulent,
(ii) that the appointee shall not take any
advantage in terms of promotion or
otherwise after 28-11-2000 solely on the
basis of his claim as a candidate belonging
to any of the backward class categories in
respect of which his claim is invalidated by
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the Scrutiny Committee, and
(iii) that it shall be permissible for the
Competent Authority to withdraw the
benefits or promotions obtained after 28-
11-2000 as a candidate belonging to
backward class category for which the
claim has been rejected.
66. In view of the law, which we have laid
down, the relief of protection of service after
invalidation of caste claim can be granted
by the High Court on the basis of judgment
of the Hon'ble Supreme Court in the cases
of Kavita Solunke Vs. State of Maharashtra
and others reported in 2012(6) Bom.C.R.
234 (S.C.) : 2012(8) S.C.C. 430, and Shalini
Vs. New English High School Association
and others, reported in 2014(3) Bom.C.R.
113(S.C.) : (2013) 16 S.C.C. 526. The
manner and the extent to which such
protection is to be made available, is laid
down as under :
(a) The appointments or promotions
made up to 15-6-1995 in public
employment on the basis of Caste
Certificates against a post reserved for any
of the backward class categories, stand
protected in terms of the Government
Resolution dated 15-6-1995 and 30-6-2004
and shall not disturbed, and the
appointments that have become final
between 15-6-1995 and 28-11-2000 shall
remain unaffected in view of the decision of
the Apex Court in Milind's case.
(b) The grant of protection in terms of
the Government Resolutions dated 15-6-
1995 and 30-6-2004 and the decision in
Milind's case, shall be subject to the
following conditions:
(i) that upon verification by the
Scrutiny Committee, the Caste Certificate
produced to secure an appointment, is not
found to be false or fraudulent,
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(ii) that the appointee shall not take any
advantage in terms of the promotion or
otherwise after 28-11-2000 solely on the
basis of his claim as a candidate belonging
to any of the backward class categories, in
respect of which his claim is invalidated by
the Scrutiny Committee, and
(iii) that it shall per permissible for th
Competent Authority to withdraw the
benefits or promotions obtained after 28-
11-2000 as a candidate belonging to
backward class category for which the
claim has been rejected.
(c) Any appointments that have become
final against a post reserved for any of the
categories of backward class on the basis of
the production of Caste Certificate without
incorporating a specific condition in the
order of appointment that it is subject to
production of caste validity certificate after
28-11-2000 and before coming into force of
the said Act on 18-10-2001 shall also
remain protected subject to the conditions
mentioned in Clause (b) of para 64.
(d) After coming into force of the said
Act on 18-10-2001, no benefit or
appointment can be obtained or secured in
any public employment against a post
reserved for any of the backward class
categories merely on the basis of the
production of a caste certificate and
without producing a caste validity
certificate from the Scrutiny Committee.
Such appointments are not protected and
shall be liable to be cancelled immediately
upon rejection of the caste claim by the
Scrutiny Committee."
72. There cannot be any strait jacket
formula laid down either to refuse or grant
protection in the employment either at the
initial stage or at the promotional stage.
The approach has to be practical and
pragmatic rather than technical and
pedantic keeping in view the object and
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purpose of the Constitution in providing the
benefits and concessions to a particular
category of backward class. The Court has
to strike the balance between the
conflicting claims of genuine candidates,
who are denied the benefits meant for them
and all other persons, who honestly and
genuinely believe and claim themselves to
be belonging to a particular category for
whom the concessions and benefits were
meant. The Court will have to consider the
facts and circumstances of each case to
decide whether the protection is to be
granted or refused, and if it is so to be
granted, up to what stage and extent."
In view of the decision rendered in Milind's case (supra) and the
clarification provided in the judgment of Arun's case (supra), according
to us, the appointments made prior to 20.11.2000 shall stand protected.
As has been observed by the full bench, there cannot be a straight jacket
formula either to refuse or to grant protection in employment either at
initial stage or at promotional stage. The approach has to be practical
and pragmatic rather than technical and pedantic keeping in view the
object and purpose of the Constitution in providing the benefits and
concessions to a particular category of back ward class.
6. In the instant matter, it is noticed that petitioner was in
employment since 1999 and continued to serve up to 2006 until he was
issued order of termination. It is not disputed that the petitioner is not
in employment since the date of termination for a long duration of more
than nine years and as such, the employer need not be saddled with the
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burden of payment of backwages to the petitioner. Since the petitioner is
not guilty for commission of fraud nor has relied upon any fabricated
record for substantiating his claim, he is entitled to be taken back in
employment.
7. In this view of the matter, we direct respondent no.3 - Corporation
to reinstate the petitioner on the post of driver, as expeditiously as
possible, preferably within a period of three months from today.
Petitioner shall not be entitled to claim any promotional benefits or any
other benefits on the strength of his status as Scheduled Tribe category
employee. Petitioner shall file undertaking in that regard to this Court,
within a period of four weeks from today. Petitioner also shall not be
entitled to claim back wages.
8 Rule is made absolute accordingly. In the facts and
circumstances of this case, there shall be no order as to costs.
K.L.WADANE R.M.BORDE
JUDGE JUDGE
adb/wp137416
