Bombay High Court
Bhima Pandurang Khot vs The State Of Maharashtra And ... on 29 July, 2016
Bench: R.M. Borde
18-wp3479-1375-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3479 OF 2015
1. Dada S/o Babu Koli ... Petitioner
Age: 41 Years, Occu. Nil,
R/o: Ramwadi, Tq. Osmanabad
Dist. Osmanabad
VERSUS
1. The State of Maharashtra
Tribe Development Department
Through its secretary
Mantralaya, Mumbai-32.
2. The Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad
Through its Deputy
Director/Member.
3. The Divisional Controller ... Respondents
Maharashtra State Road
Transport Corporation,
Osmanabad Division,
Tq. and Dist. Osmanabad.
WITH
WRIT PETITION NO.1375 OF 2016
1. Bhima s/o Pandurang Khot ... Petitioner
Age: 43 Years, Occu. Nil,
R/o: Kolewadi, Tq. Osmanabad
Dist. Osmanabad
VERSUS
1. The State of Maharashtra
Tribe Development Department
Through its secretary
Mantralaya, Mumbai-32.
2. The Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad
Through its Deputy
Director/Member. (Deleted as
per order dated 03.02.2016.)
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18-wp3479-1375-16.odt
3. The Divisional Controller ... Respondents
Maharashtra State Road
Transport Corporation,
Osmanabad Division,
Tq. and Dist. Osmanabad.
Mr. Pratap v. Jadhavar, Advocate for the petitioners,
Mr. M.B. Bharaswadkar, AGP for the respondent-State
Mr. D. S.Bagul, Advocate for respondent No.3
CORAM : R. M. BORDE &
A. I. S. CHEEMA, JJ.
DATE : 29th July, 2016
JUDGMENT:
1. Heard.
2. Rule. Rule made returnable forthwith. With the
consent of the parties, petition is taken up for final
disposal at admission stage.
3. Petitioners claim to be belong to 'Koli Mahadev'
Scheduled Tribe and were possessed of the certificates
issued in that regard. Petitioners have been appointed
as Helpers with respondent No. 3 as against the post
reserved for Scheduled Tribe category. Petitioner in
Writ Petition No.3479/2015 was appointed on 01.08.1995
and confirmed in employment on 01.10.1996 whereas the
petitioner in Writ Petition No. 1375/2016 was appointed
on 02.08.1995 and his services were confirmed. Since
petitioners claimed employment as members belonging to
Scheduled Tribe category, tribe certificates issued in
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their favour were forwarded by the employer to the
Scrutiny Committee. The Scrutiny Committee, however,
on recording evidence of the parties, directed
invalidation of the caste certificates issued in favour
of the petitioners and, as a consequence thereof, the
services of petitioners were terminated on 06.02.2006
and 06.01.2006 respectively.
4. Petitioners in the instant petitions have
claimed quashment of the orders 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 :
(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),
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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
18-wp3479-1375-16.odt
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 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.
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(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,
(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.
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(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 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."
5. In view of the decision rendered in Milind's case
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(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
petitioners were in employment since 1996 and continued
to serve up to 2006 until they were issued orders of
termination. It is not disputed that the petitioners
are not in employment since the dates of termination
for a long duration of more than ten years and as such,
the employer need not be saddled with the burden of
payment of back wages to the petitioners. Since the
petitioners are not guilty for commission of fraud nor
have relied upon any fabricated record for
substantiating their claim, they are entitled to be
taken back in employment.
18-wp3479-1375-16.odt
7. In this view of the matter, we direct respondent
- Corporation to reinstate the petitioners on the post
of Helper, as expeditiously as possible, preferably
within a period of three months from today.
Petitioners shall not be entitled to claim any
promotional benefits or any other benefits on the
strength of their status as Scheduled Tribe category
employee. Petitioners shall file undertakings in that
regard to this Court, within a period of four weeks
from today. Petitioners also shall not be entitled to
claim back-wages.
8. Rule made absolute accordingly. In the facts
and circumstances of the case, there shall be no order
as to costs.
9. Notice issued by this Court to Respondent No.3
in Writ Petition No. 3479/2015 on 7th July, 2016 stands
discharged.
(A. I. S. CHEEMA, J.) (R. M. BORDE, J. )
JPC
