Bombay High Court
Satish Madhukar Samarth vs Union Of India, Ministry Of ... on 28 June, 2016
Bench: B.P. Dharmadhikari
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6301 OF 2015
WITH
WRIT PETITION NO.6302 OF 2015
WITH
WRIT PETITION NO.6303 OF 2015
WITH
WRIT PETITION NO.6304 OF 2015
WITH
WRIT PETITION NO.6305 OF 2015
WITH
WRIT PETITION NO.6306 OF 2015
WITH
WRIT PETITION NO.6307 OF 2015
WITH
WRIT PETITION NO.6308 OF 2015
WITH
WRIT PETITION NO.6309 OF 2015
WRIT PETITION NO.6301 OF 2015
Jaspal S/o Narasingrao Bhushnwar,
Aged 59 years, Occupation Senior Accountant
R/o C-47 Kolbaswamy Colony, Katol
Road, Near Friends Colony, Nagpur. ..... Petitioner.
:: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
.....2/-
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Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
WRIT PETITION NO.6302 OF 2015
Shrikant S/o Motiram Dahikar, Aged
about 54 years, Occupation Service,
R/o Friends Colony Chowk, Wainath
Apartment, Plot No.64/64, Behind
Apna Bazar, Katol Road, Nagpur. ..... Petitioner.
:: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
.....3/-
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3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
WRIT PETITION NO.6303 OF 2015
Ashok S/o Chandrakant Gahlod, Aged
59 years, Occupation Senior Accountant,
R/o Prerna Nagar, Near Akar Nagar,
Nagpur-17. ..... Petitioner.
:: VERSUS ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
.....4/-
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5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
WRIT PETITION NO.6304 OF 2015
Surendra S/o Shankar Neware, Aged
about 53 years, Occupation Service,
R/o Type II, D/7 Postal Colony, Katol
Road, Nagpur. ..... Petitioner.
ig :: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
.....5/-
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WRIT PETITION NO.6305 OF 2015
Satish Madhukar Samarth, Aged about
55 years, Occupation Senior Accountant,
R/o 28, Manohar Vihar, Hazari Pahad Road,
Vayusena Nagar, Nagpur-440 007. ..... Petitioner.
:: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
WRIT PETITION NO.6306 OF 2015
Mahesh Jokhu Muria, Aged about 50
years, Occupation Service, R/o Plot No.1417,
Parvati Nagar, Behind Old Post Office,
Nagpur-27. ..... Petitioner.
.....6/-
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:: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
WRIT PETITION NO.6307 OF 2015
Prasanna S/o Ellamrao Kale, Aged
about 41 years, Occupation Service,
R/o Behind Annapurna Mata Temple, Gaddi
Godam, Mohan Nagar, Nagpur. ..... Petitioner.
:: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
.....7/-
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through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
WRIT PETITION NO.6308 OF 2015
Fatelal S/o Marotrao Daduria,
Aged about 58 years, Occupation Srvice, R/o House
No.1027, Azad Chowk, Nagpur-01. ..... Petitioner.
:: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
.....8/-
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3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
WRIT PETITION NO.6309 OF 2015
Janardhan S/o Laxman Sabre, Aged
About 53 years, Occupation Senior
Accountant, D.A.P., Nagpur, Resident
of Plot No.110, Manish Nagar,
Somalwada, Nagpur-15. ..... Petitioner.
:: versus ::
1. Union of India, Ministry of
Communication and
Information Technology,
through its Secretary, Dak
Bhavan Sansad Marg, New
Delhi 110001.
2. Chief Postmaster General,
Maharashtra Circle, Mumbai-400001.
3. The Director of Accounts
(Postal), Civil Lines, Nagpur-440 001.
4. Postmaster General, Nagpur
Region, Shankar Nagar, Nagpur-440 001.
.....9/-
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5. Scheduled Tribes Caste
Certificate Scrutiny Committee,
Through its Member Secretary,
Adiwasi Bhavan, Giripeth,
Nagpur. ..... Respondents.
==============================================
Shri R.S. Parsodkar, Counsel for the Petitioners.
Mrs.M.R. Chandurkar, Counsel for Respondent Nos.1 to 4.
Mrs.Bharti H. Dangre, Government Pleader for Respondent No.5.
==============================================
CORAM : B.P. DHARMADHIKARI &
KUM. I.K. JAIN, JJ.
DATED : JUNE 28, 2016.
COMMON JUDGMENT : (Per : Kum. I.K. JAIN, J.)
Rule. Rules is made returnable forthwith. Heard finally
with the consent of learned counsel for the parties.
2. Petitioners caste claim came to be invalidated by
respondent No.5-Caste Scrutiny Committee. They are the employees of
Postal Department. The question before us relates to the protection of
services of petitioners.
3. Following is the chart which shows respective petitioners'
.....10/-
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joining of service, caste, continuity of service, and interim protection
granted by the Court.
Sr. Writ Name of Working With Caste Date of Interim
No. Petition Petitioner since Resp. Claimed invalidation protection
No. No. of caste granted
claim
1 6301/15 J.N. 23.10.81 4 Chhatri 8.10.15 Status quo
Bhushanwar (ST) in force
2 6302/15 S.M. Dahikar 21.10.81 4 Kawar 8.10.15 Status quo
ig (ST) in force
3 6303/15 A.C. Gahlot 5.11.90 4 Thakur 31.10.15 Status quo
(ST) in force
4 6304/15 S.S. Neware 12.11.82 4 Gond 31.10.15 Status quo
Gowari in force
(ST)
5 6305/15 S.M. Samarth 17.10.86 4 Kawar 8.10.15 Status quo
(ST) in force
6 6306/15 M.J. Muria 23.10.89 4 Muria 31.10.15 Status quo
(ST) in force
7 6307/15 P.E. Kale 27.5.92 4 Mannewar 31.10.15 Status quo
(ST) in force
8 6308/15 F.M. Daduria 3.10.80 4 Kawar 8.10.15 Status quo
(ST) in force
9 6309/15 J.L. Sabre 21.3.83 4 Dhangad 8.10.15 Status quo
(ST) in force
4. Learned counsel for petitioners Shri R.S. Parsodkar submits
that controversy is squarely covered by the decision of the Honourable
Supreme Court in the case of State of Maharashtra ..vs.. Milind and
others, [2000(1) SCC 4] and decision of Full Bench of this Court in Arun
.....11/-
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Vishwanath Sonone ..vs.. State of Maharashtra and others, [2015(1)
Mh.L.J. 457]. Learned counsel submitted that appointments of petitioners
had become final before 28.11.2000 and they are entitled to protection of
their services. The office memorandum dated 10.8.2010 is also pressed
into service to urge that petitioners, who got the appointments against the
vacancies reserved for Scheduled Tribe on the basis of certificates issued to
them by the Competent Authority and whose appointments became final
prior to 28.11.2000, shall not be affected.
5. Per contra, learned Government Pleader for respondent
No.5 vehemently opposed the petitions and relied upon the contentions in
affidavit-in-reply filed by respondent No.5. She submits that initially
petitioners filed affidavits and secured the certificates. On the basis of
those certificates, they secured the job and now they take u-turn, which
clearly indicates that they secured appointments by submitting false
certificates. She further submitted that petitioners had withdrawn their
claim before the Caste Scrutiny Committee at the stage of vigilance
thereby depriving the Scrutiny Committee from recording finding of fraud
and interpolation. The learned Government Pleader refers to paragraphs
.....12/-
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63 and 64 of the judgment of Full Bench of this Court in the case of Arun
Vishwanath Sonone (supra) and urged that unless the caste claim is
invalidated, petitioners would not be entitled to protection.
6. Learned counsel for respondent Nos.1 to 4 Mrs. M.R.
Chandurkar resisted the claim of petitioners. She submits that knowingly
that they do not belong to caste specified in the caste certificates
petitioners submitted false certificates and secured the appointments
against the posts reserved for Scheduled Tribe Category. She submitted
that petitioners withdrew the caste claim before the Scrutiny Committee
and the act on the part of petitioners clearly demonstrates lack of bona
fides in seeking appointments. Learned counsel further submitted that
petitioners have admitted that they do not belong to specified caste and in
such a case if protection is granted to their services, it would open the
flood gate for false and frivolous claims.
7. It is not in dispute that appointments of petitioners became
final before 28.11.2000. It is also not in dispute that petitioners had
withdrawn their claim before the Caste Scrutiny Committee. It is
.....13/-
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undisputed that petitioners were appointed against the posts reserved for
Scheduled Tribe Category. What is disputed is in a narrow compass which
relates to protection of services in the absence of any material to show that
petitioners falsely gained public employment.
8. Needless to state that protection so extended is not as of
right. The facts and circumstances of each case need to be considered. In
the case of State of Maharashtra ..vs.. Milind Katware and others
(supra), the Constitution Bench of the Honoruable Supreme Court held :
"...... But we make it clear he cannot claim to belong
to the Scheduled Tribe covered by the Scheduled
Tribes Order. In other words, he cannot take
advantage of the Scheduled Tribes Order any further
or for any other constitutional purpose. Having regard
to the passage of time, in the given circumstances,
including interim orders passed by this Court in SLP ©
No.16372/85 and other related affairs, we make it
clear that the admissions and appointments that have
become final, shall remain unaffected by this
judgment."
.....14/-
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The decision in case of Milind has been referred by the Full
Bench of this Court in Arun Sonone's case and in paragraphs 63 and 64 it
is observed as under -
"63. In the decision of the Division Bench of this Court
in A.P. Ramtekkar's case, it is held that in view of the
law laid down by the Hon'ble Apex Court in State of
Maharashtra vs. Milind (supra), the petitioners who
are Halba Koshtis can now by no stretch of
imagination be held to be belonging to Scheduled
Tribe. We, therefore, fail to understand the approach
of the employer in compelling the petitioners to
undergo the scrutiny as to whether they belong to
Scheduled Tribes or not, when, as a matter of fact,
they have given up their claim as belonging to
Scheduled Tribes. We find that apart from it, being an
empty formality, it would unnecessarily increase the
workload of the Committees, which are already
overburdened. No doubt, the Special Leave to Appeal
(C) No(s) 11831-11832/2013 has been dismissed in
limine by the Apex Court on 12-4-2013, holding that
upon perusal of the material, we do not find any legal
and valid ground for interference. However, that by
.....15/-
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itself does not prevent us from examining the said
decision on merits. The dismissal of the SLP in limine
would not constitute a ratio of the decision. Hence,
we proceed to consider the said decision on its own
merits as law laid down by the High Court.
64. We are unable to concur with the aforesaid view of
the Division Bench of this Court in A.P. Ramtekkar's
case, the reason being that the cases of fraudulent
claims must be surfaced. The protection can be
granted only after verification and scrutiny of the caste
claim by the Scrutiny Committee. In Madhuri Patil's
case, the Apex Court has observed that spurious tribes
have become a threat to the genuine tribals, who are
defrauding the true Scheduled Tribes to their
detriment and deprivation, snatching away their
benefits. The spurious and ineligible persons, who
falsely gain entry in public employment and resort to
dilatory tactics and create hurdles in completion of the
enquiry by the Scrutiny Committee, are not entitled to
any protection. In the words of the Apex Court in
Shalini's case, the cases of dishonest and mendacious
persons who have deliberately claimed consanguinity
with Scheduled Castes or Scheduled Tribes, are not
entitled to protection. One of the objects of the said
.....16/-
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Act, as it appears from the objects and reasons, is to
provide for deterrent punishment for those, who
indulge in fraudulent activities. Such objects cannot
be defeated by dispensing with the enquiry and
scrutiny by the Scrutiny Committee. On the contrary,
it will be in furtherance of the objects of providing
constitutional reservations to genuine tribals. On
question No.(b) in para 55, we answer that the
protection granted in Milind's case becomes available
only upon invalidation of the caste claim by the
Scrutiny Committee, it would not be merely an empty
formality increasing the workload of the Committees
and that the protection is not available without going
through the process of Scrutiny Committee under sub-
section (2) of Section 6 of the said Act. It is only to
this extent, we overrule partly the decision in A.P.
Ramtekkar's case."
9. It is evident that there is a plethora of precedents on the
aspect of law relating to the protection of employment. Our endeavour
would be to cull out the principles which would be relevant for deciding
the controversy in the present writ petitions. They are, :
(a) if any person has fraudulently claimed to belong to a
.....17/-
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Scheduled Tribe and has thereby obtained employment, he
or she could be disentitled from continuing in employment,
(b) when there is some confusion concerning the eligibility
to the benefits flowing from Scheduled Tribe status,
protection of employment will be available with the rider
that such persons will thereafter be adjusted in the general
category thereby rendering them ineligible to further
benefits in the category of Scheduled Tribe.
10. In the present case, petitioners had withdrawn their
caste claims before the Caste Scrutiny Committee. The chart
(supra) would show that orders by the Committee were passed after
Full Bench judgment. Petitioners did submit to the jurisdiction of
Scrutiny Committee. Scrutiny Committee though aware of Sections
10 and 11 of the Maharashtra Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance &
Verification of) Caste Certificates Act, 2000 (Act No.XXIII of 2001),
did not proceed to complete the inquiry in the manner in which it
.....18/-
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was required to be completed in law. Though petitioners gave up
caste claim, it was obligatory on the Committee to find out their
bona fides, fraud, tampering etc.. The orders passed by committee
would indicate that caste claims were invalidated as petitioners had
withdrawn their caste claims. No finding of fraud or interpolation
of documents is recorded. There is no material to attribute lack of
bona fides on the part of petitioners. Merely for delaying or
avoiding adjudication of caste claims, petitioners cannot be
presumed to be guilty of fraud or manipulation. Employer did not
issue any charge sheet to any petitioner. By the judgment, referring
to Articles 14, 15 16, 32, 46, 136, 141, 142, 226, 341, 342, and
366(25) directions have been issued in Kumari Madhuri Patil and
another ..vs.. Additional Commissioner, Tribal Development and
others, [(1994)6 SCC 241]. The directions so issued have been
accepted as binding to all. In Maharashtra, till 18.10.2001, there
was no machinery to verify the caste claims. If in this fluid position
the petitioners have continued in employment for long time, their
efforts to remain on posts till retirement and to delay scrutiny
cannot be seen as mala fide. The petitioners are willing to give up
.....19/-
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their rights whatsoever if based upon the caste on the basis of which
they had claimed benefits.
11. In the light of the above and in exceptional circumstances
brought on record, we find that services of petitioners need to be protected
in view of Full Bench judgment of this Court (supra). Hence, we pass the
following order.
(i) Writ petitions are allowed.
(ii) Rule is made absolute by directing the respondents to
protect the services of petitioners in terms of Full Bench
judgment.
(iii) Each of the Petitioners shall file an undertaking to the
Registry of this Court, Caste Scrutiny Committee and their
employer, within a period of two weeks from today, that
they or their progeny will not claim any benefit of the caste
mentioned in the chart in paragraph 3 above.
JUDGE JUDGE
!! BRW !!
...../-
