Bombay High Court
Ashok S/O Vishramji Bobade vs Deputy Director Of Education, ... on 16 September, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3919 OF 2015
PETITIONER :- Ashok S/o Vishramji Bobade, Aged about 59
years, Occ.-retired Asstt.Teacher, R/o at post
Bhagyanagar, Digras Road, Pusad, Tq.
Pusad, Distt. Yavatmal.
...VERSUS...
RESPONDENTS :- 1. Deputy Director of Education, Amravati
Division, Amravati.
ig 2. The Education Officer (Secondary), Zilla
Parishad, Yavatmal, Distt. Yavatmal.
3. Shikshan Prasarak Mandal, through its
Secretary, Pusad, Tq. Pusad, Distt. Yavatmal.
4. Koshtawar Daulatkhan Vidyalaya and
Godajirao Mukhare Junior College, Pusad,
through its Head Master, R/o Pusad, Tq.
Pusad, Distt. Yavatmal.
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Mr.P. S.Kshirsagar, counsel for the petitioner.
Ms Tajwar Khan Asstt. Govt.Pleader for the respondent Nos.1 and 2.
Mr. P.S.Chawhan, counsel for the respondent Nos.3 and 4.
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CORAM : SMT. VASANTI A NAIK &
KUM. INDIRA JAIN, JJ.
DATED : 16.09.2016
O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)
Rule. Rule made returnable forthwith. The writ petition is heard
finally with the consent of the learned counsel for the parties.
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2. By this petition, the petitioner seeks the protection of his services,
till the date of his retirement, in view of the judgment of the Full Bench,
reported in 2015 (1) Mh.L.J. 457 (Arun Sonone v. State of Maharashtra).
3. The petitioner was appointed as a Teacher in the respondent No.3-
School on a post earmarked for the Scheduled Tribes. on 02/07/1982. The
petitioner claimed to belong to Dhanwar Scheduled Tribe. In the year 1990,
Dhanwar tribe was considered as a sub-caste of Dhangar and was brought
under the category of Nomadic Tribes. The petitioner's claim of belonging to
Dhanwar Scheduled Tribe was forwarded to the Scrutiny Committee for
verification. The Scrutiny Committee, however, invalidated the claim of the
petitioner of belonging to Scheduled Tribes, as Dhanwar Caste was considered
as Nomadic Tribe from the year 1990. Certain other reasons were also
recorded by the Scrutiny Committee while invalidating the caste claim. In
view of the order of the Scrutiny Committee, dated 11/05/2005, the services
of the petitioner were terminated, on 17/11/2011. The petitioner filed a writ
petition challenging the order of termination, but the writ petition was
dismissed. It was, however, observed in the judgment in the said writ petition
that the petitioner had not played fraud on the Authorities or his employer,
while seeking the benefits meant for the Scheduled Tribes. The Court,
therefore, kept the question in regard to the entitlement of the petitioner to
the monetary benefits, till the date of his termination, open. In pursuance of
the said decision, the petitioner applied to the State Government for granting
the benefits to the petitioner, till the date of his termination. In view of the
judgment of the Full Bench, reported in 2015 (1) Mh.L.J. 457, the petitioner
has sought the protection of his services, till the date of his superannuation
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and has sought the pensionary benefits by considering that he has retired from
service on attaining the age of superannuation, on 30/11/2014.
4. Shri P. S. Kshirsagar, the learned counsel for the petitioner,
submitted that the petitioner was appointed before the cut-off date in the year
1982 and there is no observation in the order of the Scrutiny Committee that
the petitioner had fraudulently secured the benefits meant for the Dhanwar
Scheduled Tribe. It is stated that the claim of the petitioner of belonging to
Scheduled Tribes was rejected only because the Dhanwar tribe was included in
the Nomadic Tribes, since the year 1990. Though certain other observations
were made by the Scrutiny Committee, while invalidating the claim of the
petitioner of belonging to Scheduled Tribes, it is stated that there is no
observation that the petitioner has played fraud on the employer or on the
Committee, while seeking the benefits meant for the Scheduled Tribes. It is
stated that both the conditions that are required to be satisfied, in view of the
judgment of the Full Bench stand satisfied in the case of the petitioner. It is
stated that the present petition cannot be said to be barred by the principles of
res judicata, as in the earlier petition, the question of the entitlement of the
petitioner to the benefits, till the date of his termination, was kept open and it
is held in paragraph 76 of the judgment of the Full Bench that merely because
a petition claiming the relief of protection is withdrawn or dismissed, it would
not follow that the subsequent petition claiming the same relief would be
barred by the principles of res judicata. The learned counsel for the petitioner
has sought the retiral benefits for the petitioner by seeking the protection of
his services, till the date of his retirement.
5. Ms Tajwar Khan, the learned Assistant Government Pleader
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appearing on behalf of the respondent No.1, does not dispute the position of
law, as laid down by the Full Bench in the judgment, reported in 2015 (1)
Mh.L.J. 457. It is also not disputed by the learned Assistant Government
Pleader and the learned counsel for the respondent Nos.3 and 4 that the
petitioner was appointed before the cut-off date and that there is no
observation in the order of the Scrutiny Committee that the petitioner had
played fraud, while seeking the benefits meant for the Scheduled Tribes. It is,
however, stated on behalf of the respondent No.1 that the petitioner's services
should be protected only till the date of his termination, as the issue in regard
to his entitlement, till the date of his termination is kept open. It is stated that
the services of the petitioner may not be protected, till the date of his
retirement.
6. On hearing the learned counsel for the parties and on a perusal of
the judgment of the Full Bench, we find that the petitioner has made out a
strong case for seeking the protection of his services. The petitioner was
admittedly appointed before the cut-off date in the year 1982 and there is no
observation in the order of the Scrutiny Committee that the petitioner had
fraudulently secured the benefits meant for the Dhanwar Scheduled Tribe. In
fact, Dhanwar tribe was included in the Scheduled Tribes when the petitioner
applied for the post and the same was considered to be Nomadic Tribe from
the year 1990. That appears to be one of the main reasons for invalidation of
the caste claim of the petitioner. The petitioner's services were terminated, on
17/10/2011 and the petitioner has attained the age of superannuation, on
30/11/2014. In the circumstances of the case, since the petitioner was not at
fault and the case of the petitioner is covered by the judgment of the Full
Bench and several other orders passed by this Court from time to time, the
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petitioner's services are liable to be protected, till his superannuation. Though
the petitioner would be entitled to continuity of service, till the date of his
superannuation, the petitioner would not be entitled to claim the salary for the
period, during which he was out of service. The petitioner would also not be
entitled to any other monetary benefits flowing from the order of continuity of
service for the period, during which he was out of service. The petitioner
would be entitled to the pensionary benefits by considering that he had
retired on attaining the age of superannuation, on 30/11/2014.
7.
Hence, for the reasons aforesaid, the writ petition is partly
allowed. The respondents are directed to protect the services of the petitioner,
till the date of his superannuation i.e. 30/11/2014 on the condition that the
petitioner tenders an undertaking before the respondent Nos.2 and 3, the
Scrutiny Committee and in this Court that neither the petitioner, nor his
progeny would seek the benefits meant for the scheduled tribes, in future. The
respondent Nos.3 and 4 should send the pension case of the petitioner to the
respondent No.1 within six weeks. The arrears of retiral benefits i.e. pension
should be released in favour of the petitioner within four months. Rule is made
absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 20/09/2016
P.A.to Hon'ble Judge
