Bombay High Court
Pramod Shivaji Shinde vs State Of Maharashtra, Through ... on 18 April, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4656 OF 2014
Pramod Shivaji Shinde,
Aged adult, residing at and post
Nangarpuri, near Dapoli S.T.Stand,
Tal. Dapoli, Dist. Ratnagiri .... Petitioner
vs
1 State of Maharashtra,
through its Secretary, Social Justice
and Special Assistance Department,
Mantralaya, Mumbai 400032
2 Divisional Caste Certificate Scrutiny
Committee No.2, through its
Member Secretary, having its office at
Dr. Babasaheb Samajik Nyay Bhavan,
Ratnagiri, Dist. Ratnagiri.
3 Maharashtra State Road Transport
Corporation, through its Divisional
Controller, having its office at
Ratnagiri, Dist. Ratnagiri. .... Respondents
Mr. R. K. Mendadkar with Ms. Komal Gaikwad for the petitioner.
Ms. Nisha Mehra, AGP for respondents 1 and 2.
Mr. G.S. Hegde for respondent No.3-MSRTC.
CORAM: ANOOP V. MOHTA AND
RAVINDRA V. GHUGE,JJ.
DATE : April 18, 2017
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ORAL JUDGMENT (Per Ravindra V. Ghuge,J.):
1 Rule. Rule is made returnable forthwith. Heard finally by
the consent of the parties.
2 Leave to correct prayer (e) is granted. Correction to be
carried out forthwith.
3 The Petitioner is before us for challenging the impugned
order dated 4th April 2013 passed by Respondent No.2-Committee and
praying for further direction to Respondent No.2-Committee to issue a
certificate of validity in respect of his caste claim. He also prays for
his reinstatement.
4 The substantive prayers put forth by the Petitioner are at
clauses 21 (b) and 21(e) which reads as under :
"21(b) That this Hon'ble Court be pleased to issue
Writ of Certiorari and or any other Writ, Order or
Direction in the nature of Certiorari thereby quashing
and setting aside the impugned order dated 4-4-2013
passed by the Respondent No./2 Committee with
further direction to Respondent No.2 Committee to
issue certificate of validity in respect of caste certificate
granted by the competent authority of jurisdiction.
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29 (e) That this Hon'ble Court be pleased to issue
Writ of Mandamus and or any other Writ, Order or
Direction in the nature of Mandamus thereby directing
the Respondent No.3 employer to reinstate the
Petitioner on the post of Conductor with all
consequential benefits by setting aside order of
termination dated 6.08.2013."
5 The Petitioner makes a statement, on instructions, that the
Petitioner is giving up his claim to the extent of seeking validity for his
caste claim as being belonging to the caste "Vadar" and
consequentially he does not press for prayer clause 21(b).
6 We have heard the learned counsel for the respective sides
and have gone through the Petition paper-book with their assistance.
7 The impugned order of termination dated 6.08.2013 has
been passed by Respondent No.3-MSRTC on the ground that the
Petitioner has not produced his validation certificate with regard to his
caste certificate as belonging to "Vadar" which falls under Vimukta
Jati-A. There is no dispute that the impugned order of termination is
issued solely for the reason that the Petitioner has failed to produce
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the caste validity certificate.
8 The issue before us is no longer res integra in the light of
the judgment of this Court dated 14.01.2016 delivered at the Nagpur
Bench in Writ Petition No.4185/2015-Vinodkumar Singh Rajkumar v.
State of Maharashtra and ors. This Court has specifically concluded
that an appointment made on compassionate basis and in the absence
of making such an appointment on a post reserved for a particular
category, such an appointment would not be deemed to have been
made as against a reserved post and as such, the candidate so
appointed would not be required to submit a caste or tribe validity
certificate.
9 It is not in dispute that the father of the Petitioner namely
Shivaji Gurappa Shinde was an employee of Respondent No.3, who
met with an accident out of and in the course of his employment. He
was seriously injured in the said accident and subsequently he has
died on account of the injuries so sustained. It is equally undisputed
that the Petitioner was appointed on compassionate grounds in place
of his deceased father by Respondent No.3.
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10 The Petitioner had submitted his documents while being
appointed on compassionate basis. One of such documents was his
caste certificate. Respondent No.3 forwarded his caste certificate for
validation to Respondent No.2-Committee under the assumption that
the Petitioner could be continued in service only if his caste certificate
was validated. By order dated 4.4.2013, the caste claim of the
Petitioner was invalidated which consequently led to his termination
at the hands of Respondent No.3 vide the impugned order dated
6.8.2013.
11 We are not required to deal with the caste claim of the
Petitioner in the light of the specific statement made, on instructions,
that the Petitioner is giving up his claim to the said caste in the
peculiar facts as above and as such is not pressing prayer 21(b)
reproduced as above. In this backdrop, we are not entertaining this
Petition to the extent of the prayer at clause 21(b). We hasten to add
that we are not deciding the caste claim of the Petitioner only to the
extent of the Petitioner in the fact situation as above and as such the
verdict in this Petition would be restricted only to the Petitioner.
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12 In the judgment delivered by this Court in the matter of
Vinodkumar Singh (supra), it has been concluded by this Court as
under :
"Shri S. P. Bhandarkar, the learned counsel for the
petitioner submitted that the petitioner was appointed
on compassionate ground and hence the respondents
were not justified in directing the petitioner to produce
the caste validity certificate. It is stated that merely
because the caste of the petitioner is Gond (Scheduled
Tribes), the respondents cannot seek the caste validity
certificate when the appointment of the petitioner was
made on compassionate ground. It is stated that since
the petitioner was appointed on compassionate ground
and the reservation policy is not applied while
appointing a person on compassionate ground the
respondents were not justified in terminating the
services of the petitioner on his failure to produce the
caste validity certificate from the competent authority
in the State of Maharashtra. It is submitted that the
Tribunal ought to have allowed the original application
and should have directed the reinstatement of the
petitioner without a further direction to the
respondents to forward the proposal of the petitioner
to the Scrutiny Committee. It is submitted that since it
is an admitted fact that the petitioner was appointed
on compassionate ground and since the reservation
policy was not followed while making the
appointment, the Tribunal could not have been
directed the respondent to forward the proposal of the
petitioner to the Scrutiny Committee for verification of
his caste claim.
Shri K. L. Dharmadhikari, the learned Assistant
Government Pleader supported the order of the
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Tribunal. It is submitted that the petitioner was
appointed on compassionate ground and since the
caste of the petitioner is Gond (Scheduled Tribes) it
was necessary for the petitioner to produce the caste
validity certificate from a competent authority in the
State of Maharashtra. It is however fairly admitted that
nothing was produced on behalf of the respondents
before the Tribunal to point out that the reservation
policy was followed while making the appointments on
compassionate ground in the year 2005.
On hearing the learned counsel for the parties
and on a perusal of the order of the Tribunal it appears
that the Tribunal was not justified in directing the
respondents to refer the caste claim of the petitioner to
the Scrutiny Committee for verification. Admittedly, the
petitioner was appointed as a Constable in the year
2005 on compassionate ground. We do not find
anything on record to show that the reservation policy
was followed by the State Government while making
the appointments on compassionate ground in the year
2005. In the absence of any policy of the State
Government for making appointments on
compassionate ground by adhering to the reservation
policy, the appointment of the petitioner could not
have been made on a post earmarked for the
Scheduled Tribes. No material was placed before the
Tribunal in regard to any State policy for applying
reservation policy while making appointments on
compassionate ground. No such material is placed in
this Court despite grant of time to the respondents to
point out whether any such material is available. Since
the petitioner was appointed on compassionate
ground, we find that the respondents were not justified
in directing the petitioner to produce the caste validity
certificate. The Tribunal was not justified in directing
the respondents to refer the caste claim of the
petitioner to the Scrutiny Committee for verification.
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Hence, for the reasons aforesaid the writ petition
is allowed. The order of the Maharashtra
Administrative Tribunal is modified. Clauses (iii), (iv),
(v) and (vi) of the operative part of the order of the
Tribunal are hereby quashed and set aside.
Since we find that the respondents have wrongly
issued a fresh order of appointment in favour of the
petitioner after the Tribunal decided the matter, we
direct the respondents to strictly comply with the order
of the Tribunal and reinstate the petitioner in service
with continuity but without back wages."
13 No material is placed before us by the Respondents to
indicate that the Petitioner was appointed on a post reserved for the
Backward category. Respondent No.3 was therefore not justified in
either referring the caste certificate of the Petitioner for validation or
in demanding a validity certificate.
14 Considering the law as is laid down above and keeping in
view that the Respondents have not pointed out any specific
reservation policy which can be said to be made applicable even to
compassionate appointments in the service of Respondent No.3, we
find no hesitation in allowing this Petition.
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15 To the extent of the back wages from the date of the
termination and continuity is concerned, we have no hesitation in
granting continuity to the Petitioner. Insofar as the back wages are
concerned, the Petitioner prays for 100% back wages.
16 The learned counsel for Respondent No.3 submits that
since the appointment order of the Petitioner indicated that it was
subject to the validation of his caste claim, Respondent No.3 cannot be
faulted and, hence, back wages are not required to be granted.
17 Keeping in view the settled position of law that unless the
Rules and the Policy of the State specifically carve out or provide a
reservation policy applicable to compassionate appointments, there
cannot be a presumption that a compassionate appointment would be
subject to the validation of a caste or a tribe claim only because the
candidate belongs to a scheduled caste or a tribe. As noted above,
there is no dispute that the Petitioner was not appointed as against a
post reserved for any caste and hence the presumption of Respondent
No.3 that his continuity in service would be subject to the validation
of his caste claim, was fallacious.
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18 We find, in these peculiar facts of the case that while
granting reinstatement and continuity in service to the Petitioner, loss
of employment and loss of earnings need to be compensated so as to
reduce the rigors of litigation suffered by the Petitioner.
19 As such, this Petition is partly allowed. The order of
termination dated 06.08.2013 is quashed and set aside. The Petitioner
stands reinstated in service with continuity. In order to pass an
equitable order, we deem it proper to grant 50% back wages to the
Petitioner, which Respondent No.3 shall calculate and make the
payment within three months from today, failing which the said
amount would attract interest at the rate of 6% p.a from the date of
his termination.
20 Rule is made partly absolute in the above terms.
21 There shall be no order as to costs.
( RAVINDRA V. GHUGE J.) (ANOOP V. MOHTA, J.)
