Ramesh Dhondu Koli vs The State Of Maharashtra Through ...
2017 Latest Caselaw 3329 Bom

 WP 5621.16.odt                               1


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

                      WRIT PETITION NO.5621 OF 2016


 Ramesh Dhondu Koli,
 Age 45 years, Occupation-Service,
 R/o. Pimpalgaon, Pimpari,
 Post-Fatepur, Tah. Jamner,
 District-Jalgaon.                 ..                               PETITIONER

                               .. VERSUS ..

 1]     The State of Maharashtra,
        Through its Secretary,
        Education Department,
        Mantralaya, Mumbai.

 2]     The Education Officer (Secondary),
        Zilla Parishad, Buldhana.

 3]     Lok Shikshan Sanstha,
        Kingaon Raja, Tah. Sindkhed Raja,
        District-Buldhana,
        Through its President.

 4]     The Principal,
        Nutan Madhyamik Vidyalaya,
        Kingaon Raja, Tah. Sindkhed Raja,
        District-Buldhana.                ..                   RESPONDENTS


                      ..........
 Shri S.D. Khati, Advocate for Petitioner,
 Shri A.M. Balpande, AGP for Respondent nos.1 and 2,
 Shri P.S. Patil, Advocate for Respondent nos.3 and 4.
                      ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : JUNE 19, 2017.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned for the parties.

2] The challenge in petition is to the judgment and

order dated 31.3.2010 passed by respondent-management

and order dated 5.7.2010 passed by the learned Presiding

Officer of School Tribunal, Amravati rejecting the appeal filed

by petitioner.

3] The facts giving rise to the petition may be stated

in nutshell as under :

(i) Petitioner was appointed as an Assistant

Teacher in school run by respondent nos.3

and 4. By an order dated 14.7.1996,

appointment of petitioner was against the

seat reserved for Scheduled Tribe category.

This appointment was approved by the

Education Officer. Petitioner was, thereafter,

continued in service.

(ii) On 31.3.2010, services of petitioner came to

be terminated by the management on the

ground of non submission of caste validity

certificate. Petitioner challenged the order

of termination before the School Tribunal.

Vide order dated 5.7.2010, Presiding Officer,

School Tribunal, Amravati dismissed the

appeal observing that employee had failed

to submit the caste certificate within

stipulated time. As caste claim of petitioner

was pending before Scrutiny Committee, he

did not challenge the order of School

Tribunal at the relevant time.

(iii) The caste claim of petitioner came to be

rejected by Scrutiny Committee on

11.5.2010. The order of rejection of caste

claim was challenged by petitioner in Writ

Petition No.6523/2010. Writ petition filed by

petitioner also came to be rejected.

                 (iv)     Petitioner then prayed for protection of his

                          service        by       filing        Writ          Petition

No.11814/2014. On 5.2.2015, when the

said writ petition came up for hearing,

Division Bench at Aurangabad disposed of

the petition by passing the following order :

"Considering the fact that, against the order of termination the proceedings

were filed before the School Tribunal and the appeal before the School Tribunal is also dismissed confirming the termination, the present writ petition claiming reinstatement cannot be considered, though may be on other grounds.

2. The petitioner is at liberty to avail such other remedy as is permissible in law. The writ petition as such is disposed of. No costs."

4] It is in this background that the present petition

has been preferred for setting aside the order passed by

School Tribunal. Petitioner submitted that Government of

Maharashtra issued Government Resolutions dated

11.5.2013 and 30.7.2013 granting relief of protection of

services to the employees whose claims have been

invalidated. Reliance is also placed on the decision of the

Hon'ble Supreme Court in Shalini .vs. New English High

School Association, 2014 (2) Mh.L.J. (SC) 913 and the

decision of Full Bench of this court in Arun s/o Vishwanath

Sonone .vs. State of Maharashtra and others, 2015 (1)

Mh.L.J. 457.

5] Petitioner has restricted his claim to the protection

of service in this writ petition. It is not the finding recorded

either by Scrutiny Committee or by respondent-

management or by any authority that petitioner obtained

the employment by producing a false caste certificate. It is

not the finding that caste certificate dated 20.9.1987 issued

by the competent authority to the petitioner, as belonging to

Tokare Koli Scheduled Tribe category was obtained by

practicing fraud, misrepresentation or by suppression of

material facts. Undisputedly, appointment of petitioner was

in the post reserved for Scheduled Tribe category and

petitioner has failed to substantiate his claim so as to get

the validity certificate from the Scrutiny Committee.

Petitioner was initially appointed on 14.7.1996 in a clear

and permanent vacancy and approval of his appointment

was also granted by the Education Officer on 25.3.1997 for

one academic session. On the date of termination, he had

put in more than 13 years of service.

6] The controversy involved is covered by the latest

decision of the Full Bench in case of Arun s/o Vishwanath

Sonone .vs. State of Maharashtra and others, reported in

2015 (1) Mh.L.J. (F.B.) 457. The relevant portion in

Paragraph No.65 of the said decision being relevant is

reproduced below.

"65. The factual position to which the law laid down is to be applied, is stated as under :

(a) Before coming into force of the said Act on 18.10.2001, the appointments and promotions were made against the post reserved for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Classes category (consolidatedly called as "the backward class category") merely on the basis of the production of the Caste Certificates issued by the Competent Authorities with or without the condition of producing a caste validity certificate.

(b) The decision in Madhuri Patil's case was delivered by the Apex Court on 2-9-1994, and by issuing the Government Resolutions dated 15-6-1995 and 30.6.2004, all the appointments and promotions made up to 15-6-1995 against a post reserved for backward class category are protected and such appointments and promotions cannot be cancelled.

                (c)            ..........

                (d)       In terms of the decision in Milind's

case, all the appointments that have become final up to 28-11-2000 stand protected subject to the conditions as under :

(i) that upon verification by the Scrutiny Committee, the Caste Certificate produced to secure an appointment, is not found to be false or fraudulent,

(ii) that the appointee shall not take any advantage in terms of promotion or otherwise after 28-11- 2000 solely on the basis of his claim as a candidate belonging to any of the backward class categories in respect of which his claim is invalidated by the Scrutiny Committee, and

(iii) that it shall be permissible for the Competent Authority to withdraw the benefits or promotions obtained after 28-11-2000 as a candidate belonging to backward class category for which the claim has been rejected."

7] In view of the factual position narrated above and

the law laid down by the Full Bench that mere invalidation of

the caste claim by the Scrutiny Committee would not entail

the consequences of withdrawal of benefits or discharge

from the employment or cancellation of appointment that

have become final prior to the decision in State of

Maharashtra .vs. Milind and others, (2001) 1 SCC 4 on

28.11.2000, the petitioner is entitled to protection in

service. By not considering the well settled legal position,

School Tribunal has committed an error in dismissing the

appeal. Writ Petition, therefore, deserves to be allowed.

Hence, the following order :

ORDER

(i) Writ Petition No.5621 of 2016 is allowed.

(ii) The judgment and order dated 5.7.2010 passed by

the School Tribunal, Amravati dismissing Appeal No.20/2010

is hereby quashed and set aside.

(iii) Appeal No.20/2010 filed by the petitioner is

allowed in the following terms :

(a) The termination of petitioner from service by an order dated 31.3.2010 is hereby quashed and set aside.

                 (b)      Petitioner is directed to be reinstated in
                          service     forthwith    on        the       post       of

Assistant Teacher in the school run by respondent nos.3 and 4 with continuity in service without any backwages.

(c) Petitioner is entitled to protection in terms of Government Resolutions dated 18.5.2013 and 30.7.2013 and also the decision of Full Bench of this court in case of Arun s/o Vishwanath Sonone .vs.

                          State      of   Maharashtra           and       others
                          (supra).
                 (d)      Petitioner shall not claim any benefit

available to the candidate belonging to Scheduled Tribe category.

(e) Petitioner to submit an undertaking within a period of six weeks from today with this court, school committee and his employer that neither he nor his progeny shall claim status or benefit available to the candidate belonging to Scheduled Tribe category.

(iv) Rule is made absolute in the above terms. No

order to costs.

(Kum. Indira Jain, J.) Gulande, PA