Bombay High Court
Shankar S/O. Namdeo Kumbhare vs The State Of Maha., Thr. ... on 13 June, 2017
Bench: V.A. Naik
1306WP6550.15-Judgment 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6550 OF 2015
PETITIONER :- Shankar S/o Namdeo Kumbhare, Aged about
46 years, Occ-Nil, R/o Village-Pardi (Kupi),
Gadchiroli, Tahsil and District-Gadchiroli.
...VERSUS...
RESPONDENTS :- 1) The State of Maharashtra, through its
Secretary, Department of Rural
Development & Water Conservation,
Mantralaya, Mumbai-32.
2) The Zilla Parishad, Gadchiroli, through its
Chief Executive Officer.
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Mr.N.A.Jachak, counsel for the petitioner.
Mr.K.L.Dharmadhikari, Asstt.Govt.Pleader for the respondent No.1.
Mr. H.A.Deshpande, counsel for the respondent No.2.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 13.06.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioner seeks the protection of
his services in view of the law laid down by the Full Bench of this court,
in the judgment reported in 2015 (1) Mh.L.J. 457 (Arun Sonone v.
State of Maharashtra).
1306WP6550.15-Judgment 2/6
2. The petitioner was appointed as a multipurpose health
worker on 21/06/1999 on a post reserved for the scheduled tribes. The
petitioner claimed to belong to Halba scheduled tribe and the caste
claim of the petitioner was referred to the scrutiny committee for
verification. The scrutiny committee invalidated the claim of the
petitioner by an order dated 16/01/2001. The respondent-zilla parishad
terminated the services of the petitioner by the order dated
05/05/2001. The order of the scrutiny committee and the order of
termination were challenged by the petitioner in Writ Petition No.2003
of 2001. This court did not grant any interim relief in favour of the
petitioner, with the result that the petitioner remained out of service till
the writ petition was decided on 16/01/2012 and a direction was issued
to the scrutiny committee to re-decide the caste claim of the petitioner
after giving an opportunity of hearing. The scrutiny committee again
invalidated the caste claim of the petitioner by the order dated
14/12/2012. The petitioner did not challenge the order of invalidation
of his caste claim. After the Full Bench of this court rendered the
judgment reported in 2015 (1) Mh.L.J. 457, laying down the
guidelines for protecting the services of the employees that were
appointed before the cut-off date on the basis of their caste claim but
whose caste claim was invalidated, the petitioner has filed the instant
petition seeking the protection of his services on the post of
multipurpose health worker.
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3. Shri Jachak, the learned counsel for the petitioner,
submitted that in view the judgment of the Full Bench, the services of
the petitioner are liable to be protected. It is submitted that the
petitioner was appointed before the cut-off date i.e. 28/11/2000 and
there is no observation in the order of the scrutiny committee that the
petitioner had fraudulently secured the benefits meant for the Halba
scheduled tribes. It is submitted that both the conditions that are
required to be fulfilled while seeking the protection of the services stand
fulfilled in the case of the petitioner. The learned counsel relied on the
unreported judgment of this court, dated 03/07/2015 in Writ Petition
No.2162 of 2015 as also the judgment of the Full Bench for seeking the
protection of his services. It is submitted that the petitioner was
appointed on probation for a period of one year and after the probation
period was completed, though an order of confirmation is not issued in
favour of the petitioner, there is also no order continuing the probation
period, with the result that the services of the petitioner are deemed to
have been confirmed.
4. Shri Deshpande, the learned counsel for the respondent-
zilla parishad, denied the claim made by the petitioner. It is submitted
that the services of the petitioner cannot be protected for more reasons
than one. It is submitted that as per rule 6 of the Maharashtra Zilla
Parishad Recruitment Rules, 1967, the services of an employee cannot
1306WP6550.15-Judgment 4/6
be confirmed unless he passes the departmental examination and an
order of confirmation is actually issued in his favour. It is submitted that
the petitioner had not passed the departmental examination and the
petitioner's services were never confirmed by the zilla parishad before
his services were terminated by the order, dated 05/05/2001. The
learned counsel relied on the judgment of the Hon'ble Supreme Court,
reported in (2001) 7 SCC 161 (High Court of M.P. v. Satya Narayan
Jhavar) to substantiate his submission that the continuance in service
after the expiry of the probation period would not result in deemed
confirmation of the employee on the post on which he was appointed.
It is submitted that since the petitioner was not confirmed in service and
since the petitioner has worked for less than two years with the zilla
parishad and has thereafter not worked for a period of more than
sixteen years, the services of the petitioner cannot be protected. It is
submitted that in any case, there is no vacancy in the post of
multipurpose health worker in the respondent-zilla parishad that could
be filled by nomination. It is submitted that the judgment reported in
2015 (1) Mh.L.J. 457 cannot be applied to the case like the one in
hand.
5. On hearing the learned counsel for the parties, it appears
that the services of the petitioner cannot be protected in the
circumstances of the case. The appointment order of the petitioner
1306WP6550.15-Judgment 5/6
clearly recites that the petitioner was appointed temporarily on the post
of multipurpose health worker. Condition No.2 of the appointment
order further recites that the petitioner is appointed on probation for a
period of one year as per rule 6(5) of the Maharashtra Zilla Parishad
Recruitment Rules. The zilla parishad has never passed an order of
confirmation in favour of the petitioner. Rule 6(6) of the Rules clearly
provides that the services of an employee cannot be confirmed unless he
passes the departmental examination. Also, it is clear that from the
judgment of the Hon'ble Supreme Court that merely because the
employee continues in service after the completion of the period of
probation, he cannot be deemed to be a confirmed employee. In the
instant case, as per rule 6(6) of the Rules, it was necessary for the
petitioner to have passed the departmental examination before his
services could be confirmed. In any case, we do not find that the
petitioner's services are confirmed by the zilla parishad, by an order of
confirmation. The services of the petitioner were terminated on
05/05/2001. The petitioner had worked for less than two years with
the zilla parishad before his services were terminated and has thereafter
remained out of service for more than sixteen years. Reinstating a
person like the petitioner in service and granting him the benefit of
continuity of service would result in causing great hardship to the other
eligible candidates, who belong to a particular caste to which the
petitioner had claimed to belong, but has failed to substantiate his caste
1306WP6550.15-Judgment 6/6
claim. Merely because the petitioner was appointed before the cut-off
date, the services of the petitioner cannot be protected when he was not
a confirmed employee of the zilla parishad before his services were
terminated. We have held in the judgment reported in 2016 (4)
Mh.L.J. 775 (Dilip v. Divisional Controller) that when an employee is
not granted permanency before the cut-off date, he would not be
entitled to protection. The unreported judgment of this court, dated
03/07/2015 in Writ Petition No.2162 of 2015 would not apply to the
peculiar facts of this case, specially when the services of the petitioner
were not confirmed before he was terminated by the order dated
05/05/2001.
In the result, the writ petition fails and is dismissed with
no order as to costs. Rule stands discharged.
JUDGE JUDGE
KHUNTE
