Mohd. Nadim Mohd. Sabeer And 5 ... vs State Of Maharashtra Thr. Its ...
2017 Latest Caselaw 2871 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH AT NAGPUR

                        WRIT PETITION NO. 3948 OF 2013

 1. Mohd. Nadim Mohd. Sabeer,
    Aged - Major, Occ. Service,
    Resident of Firdoj Colony, Akola.

 2. Mohd. Tanveer Mohd. Shahjuddin,
    Aged - Major, occ. Service,
    Resident of Datta Mandir, 
    Station Road, Murtizapur.

 3. Juber Aslamkhan Mohd. Daoodkhan,
    Aged - Major, occ. Service working at
    Akot, Resident of Anjagaon Surji,
    Dist. Amravati.

 4. Jafar Ahmad Ab Shakur,
    Aged - Major, occ. Service,
    Resident of Mominpura, 
    Akola, Dist. Akola.

 5. Shaikh Abdul Rashid Abdul Nakib,
    Aged - Major, occ. Service working at
    Balapur, Resident of Mana, 
    District Akola.

 6. Mohd. Samir Parvej Ab. Hamid,
    Aged - Major, occ. Service (Secondary
    Teacher) working at Akot, 
    Resident of Anjangaon Surji,
    Dist. Amravati.                                     ..... PETITIONERS

                               ...V E R S U S...

 1. State of Maharashtra
    through its Secretary, 
    General Administration
    Department, Mantralaya,
    Mumbai - 400032.

 2. Collector, Akola and Chairman of
    Subordinate Selection Committee.




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 3. Education Officer (Primary),
    Zilla Parishad, Akola.

 4. Zilla Parishad, Akola through its
    Chief Executive Officer.

 5. Deputy Chief Executive Officer,
    Zilla Parishad, Akola.

 6. Scheduled Tribe Caste Certificate
    Scrutiny Committee, Amravati.                                 ... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Mr. P. C. Madkholkar, Advocate for the petitioners.
 Mr. K. L. Dharmadhikari, AGP for the respondent Nos.1, 2 and 6.
 Mr. G. G. Mishra, Advocate for respondent Nos.3 to 5.
 -------------------------------------------------------------------------------------------

                                  CORAM:-    
                                             SMT. VASANTI  A  NAIK &
                                              ARUN D. UPADHYE, JJ.

DATED :-

07/06/2017.

ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)

By this petition, the petitioners have challenged the

Government Circular dated 18th May, 2013 as void, being beyond the

legislative competence of the State Government. The petitioners have

also challenged the orders of the respondent - Zilla Parishad

terminating the services of the petitioners.

According to the petitioners, the petitioners were

appointed from the open category on the posts of Shikshan Sevaks. It is

case of the petitioners that the respondent - Zilla Parishad illegally

asked the petitioners to produce the caste validity certificate and as the

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petitioners were not able to produce the same, the Zilla Parishad has

terminated the services of the petitioners on the post of Assistant

Teachers. The petitioners have challenged the termination order as also

the Government Circular dated 18th May, 2013 providing that the

responsibility to prove that the employees appointed from the reserved

category belong to the same category, would be of the employees and if

they are not able to submit the application for verification of their caste

claim along with relevant documents for proving their claim to the

Scrutiny Committee, one month notice should be served on them asking

them to produce the relevant documents for verification of their caste

claim or else their services would be terminated.

Shri P. C. Madkholkar, the learned counsel for the

petitioners submitted that the petitioners were appointed on the posts

that were meant for the open category and were not appointed in the

posts meant for the reserved categories. It is submitted that it was

therefore not necessary for the petitioners to produce the caste validity

certificate or to tender the documents for verification of their caste

claim. It is submitted that in any case, the Government Circular dated

18/05/2013 that permits the employer to take action against the

employees for the termination of their services, if they fail to produce

the requisite documents for verification of their caste claim immediately

or within a month is bad in law. It is submitted that the policy of the

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State Government in this regard is arbitrary and the Government

Circular is liable to be set aside. It is submitted that since the petitioners

were appointed from the open category, they had not submitted the

relevant documents. It is further submitted that if this Court is of the

view that the petitioners were appointed on the posts meant for the

reserved categories, this Court may permit the petitioners to submit the

relevant documents within a reasonable time and direct the respondent

- Zilla Parishad to refer the caste claim of the petitioners to the Scrutiny

Committee for verification.

Shri Dharmadhikari, learned Assistant Government

Pleader appearing for the State Government and the Scrutiny

Committee states that as per the new policy, it would be necessary for

the petitioners to tender their applications for verification of their caste

claim on-line, in the proper format along with the necessary documents

and if the petitioners submit the same to the Scrutiny Committee (on-

line), the Scrutiny Committee would verify the caste claim of the

petitioners.

Shri Mishra, the learned counsel for the respondent

Nos.3 to 5 has denied the claim of the petitioners. It is submitted that

the petitioners were appointed on the posts meant for the reserved

categories, inasmuch as almost all the petitioners were appointed on the

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posts reserved for the Scheduled Tribes and the Vimukta Jatis. The

learned counsel has sought to substantiate the said fact by referring to

the appointment orders of the petitioners that are annexed to the

affidavit-in-reply. It is submitted that the petitioners had filed Writ

Petition No.3509/2007 for a direction against the respondent Nos.3 to 5

to consider the employment of the petitioners from the open category

by referring to the Government Circular dated 07/12/2001. It is

submitted that it is apparent that the petitioners were appointed on the

posts meant for the reserved categories i.e. Scheduled Tribes and

Vimukta Jatis and hence, there is no merit in the claim of the petitioners

that they were appointed on the posts meant for the open category. It is

submitted that since the petitioners did not submit the relevant

documents for verification of their caste claim, despite the notice in that

regard, the respondents took a conscious decision of terminating the

services of the petitioners. It is submitted that as per the request of the

learned counsel for the petitioners, if the petitioners are permitted to

tender their application to the Scrutiny Committee for verification of

their claims, directions may be issued to the Scrutiny Committee to

decide the caste claim of the petitioners at the earliest, so that the

respondents could take appropriate action against the petitioners, if

their caste claim is invalidated.

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On hearing the learned counsel for the parties and on a

perusal of the documents annexed to the petition and the affidavit-in-

reply filed on behalf of the respondent Nos.3 to 5, it appears that there

is no merit in the submission made on behalf of the petitioners that the

petitioners were appointed on the posts meant for the open category.

Though, the petitioners were appointed on the posts of Shikshan

Seveks, the petitioners have not annexed the appointment orders to the

writ petition. Had the appointment orders been annexed, this Court

would have noticed, at the outset that the petitioners were not

appointed on the posts meant for the open category. The respondents

have annexed the appointment orders of the petitioners to the affidavit-

in-reply. These appointment orders clearly show that the appointment

of the petitioners was made on the posts i.e. earmarked for the

Scheduled Tribes and the Vimukta Jatis. In the previous petition filed by

the petitioners, the petitioners had prayed that the respondent Nos.3 to

5 may be directed to consider their appointments from the open

category on the basis of the Circular of the year 2001 and this shows

that the petitioners were clearly aware that they were appointed on the

posts meant for the reserved categories and not for the open category. It

was necessary for the petitioners to have submitted the relevant

documents to the respondent Nos.3 to 5 for verification of their caste

claim. However, the petitioners failed to produce the documents,

though their appointments were made after coming into force of the Act

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No.23 of 2001. The respondents had therefore rightly taken a decision

of terminating the services of the petitioners on their failure to produce

the documents pertaining to their caste claim, so that their caste claim

could be verified.

We find no merit in the submission made on behalf of

the petitioners that the Government Circular dated 18 th May, 2013 is

bad in law. The said submission is not substantiated. In any case, we do

not find as to how the Government Circular that permits the employer

to take the action of termination of services of the employee who

refuses to tender the documents for verification of his / her caste claim,

though he or she is appointed on the post ear-marked for the reserved

category, is bad in law.

Be that as it may, since the petitioners are now ready to

get their caste claim verified from the Competent Scrutiny Committee,

in the facts and circumstances of the case and in the interest of justice,

it would be necessary to permit the petitioners to submit the

applications to the Scrutiny Committee (on-line) within 45 days. It

would be necessary to direct the Scrutiny Committee to decide the

applications, if submitted by the petitioners, within 15 months from the

receipt thereof. Since the petitioners are working since long, it would be

necessary to protect the services of the petitioners till their caste claim is

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decided.

For the reasons aforesaid, the writ petition is partly

allowed. The petitioners are hereby directed, in view of their request, to

submit their caste claim to the Scrutiny Committee (on-line) for

verification within 45 days. If the application is so made, the respondent

No.6 - Scrutiny Committee is directed to decide the caste claim of the

petitioners within 15 months from the date of receipt of the same. The

respondent Nos.3 to 5 are directed to take appropriate action against

the petitioners, if they fail to submit the caste claim to the Scrutiny

Committee within the stipulated period. The services of the petitioners

are protected till their caste claim is decided.

Rule is made absolute in the aforesaid terms with no

order as to costs.

                                     JUDGE                                        JUDGE



 Choulwar