Bombay High Court
Mohd. Jafar Mohd. Sharif And ... vs Zilla Parishad, Akola Through Its ... on 21 June, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3983/2013
PETITIONERS : 1. Mohd. Jafar Mohd. Sharif,
Aged 38 years, Occ. Teacher, R/o C/o Nagar
Parishad Urdu Primary School Peth, Balapur,
Tah. Balapur, District - Akola.
2. Ku. Samina Yasmin Mohd. Suleman,
aged 40 years, Occ. Teacher, R/o C/o Nagar
Parishad Urdu Primary School, Shahar, Balapur,
Tah. Balapur, District - Akola.
3. Abdul Shafique Abdul Bashir
Aged 40 years Occ. Teacher, R/o C/o.
Nagar Parishad Urdu Primary School,
Shahar, Balapur, Tah. Balapur, District - Akola.
(Corrected as per Court's order dt. 25 th July, 2013)
4. Jalil Ahmad Noor Mohammad,
Aged 40 years, Occ. Teacher, R/o C/o
Nagar Parishad Urdu Primary School,
Mominpura, Balapur, Tah. Balapur,
District - Akola.
5. Mohd. Yahsin Afzal Mohd Yasin,
Aged 38 years, Occ. Teacher, R/o C/o Nagar
Parishad Urdu Primary School, Mominpura,
Balapur, Tah. Balapur, District - Akola.
6. Mohd. Taslim Sheikh Kasam,
Aged 40 years, Occ. Teacher, R/o C/o Nagar
Parishad Urdu Primary School, Chhota
Mominpura, Balapur, Tah. Balapur,
District - Akola.
...VERSUS...
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RESPONDENTS : 1. Zilla Parishad, Akola through its Chief
Executive Officer, Akola.
2. Education Officer (Primary), Zilla Parishad,
Akola.
3. Municipal Council, Balapur, through its
Chief Officer.
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Shri P.C. Madkholkar, Adv. with Shri Ram Karode, Adv. for petitioners
Mrs. I.L. Bodade, Adv. with Shri G.G. Mishra, Adv. for respondent nos.1 and 2
Shri S.D. Chopde, Advocate for respondent no.3
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 21.06.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioners have challenged the
notices/communications issued by the respondent no.3 - Chief Officer of
the Municipal Council, Balapur dated 3.7.2013 asking the petitioners to
submit the documents pertaining to their caste claim for verification or
else appropriate action may be taken against them.
After securing the requisite qualifications, the petitioners
were appointed to the posts of Sikshan Sevaks some time in the month of
November and December, 2001 by the Municipal Council. The petitioners
successfully completed the service of three years and their services were
regularized on 2.12.2004. Since according to the Municipal Council, the
petitioners were appointed on the posts earmarked for the Scheduled
Castes, the Municipal Council asked the petitioners to tender the
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necessary documents pertaining to their caste claim for verification. The
petitioners however continuously made representations to the Municipal
Council that the petitioners were not appointed on the posts earmarked
for the Scheduled Castes and they were appointed on the posts
earmarked for the open category. It is the case of the petitioners that by
the Government Resolution dated 7.12.2001, the State Government
directed the Urdu Medium Schools, not to reserve any posts for the
Scheduled Castes as Islam does not recognize the Scheduled Castes. The
petitioners have relied on the Government Resolution dated 7.12.2001,
that mentions that Islam does not recognize the Scheduled Castes and
there are castes in the Muslim religion belonging to Other Backward
Classes, Scheduled Tribes, Vimukta Jatis and Nomadic Tribes but there
cannot be a Scheduled Caste in the Muslim religion. In view of their claim
that they were appointed on the seats earmarked for the open category
the petitioners filed the present writ petition challenging the action on the
part of the Municipal Council, asking the petitioners to produce the
relevant documents pertaining to their caste claim.
Shri Madkholkar, the learned Counsel for the petitioners
submitted that the Municipal Council was not justified in asking the
petitioners to produce the documents pertaining to their claim of
belonging to Scheduled Castes as the petitioners had never sought the
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appointment on the posts meant for the Scheduled Castes. It is submitted
that the petitioners were appointed on the posts earmarked for the open
category. It is submitted by placing reliance on the Government
Resolution dated 7.12.2001 that in the Urdu Medium Schools posts need
not be earmarked for the Scheduled Castes as Islam does not recognize
Scheduled Castes and in the Muslim religion a person could only claim to
belong to O.B.C., S.T., V.J.N.T. etc. It is submitted that even if this Court
is of the view that the petitioners were appointed on the posts meant for
the Scheduled Castes, in the circumstances of the case, specially in view of
the Government Resolution dated 7.12.2001, the services of the
petitioners need to be protected as they would not be in a position to
prove that they belong to the Schedule Castes. It is submitted that in
almost similar set of facts this Court has, by the judgment reported in
2017 (3) Mh.L.J. 151 protected the services of the petitioner therein. It is
submitted that the question as to whether the persons professing Muslim
religion are entitled to the benefits meant for the Scheduled Castes is
pending for adjudication before the larger Bench of the Hon'ble Supreme
Court and hence, this Court may, in the circumstances of the case protect
the services of the petitioners, more so, when they are working on the
posts of Assistant Teachers for more than 16 years.
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Shri Chopde, the learned Counsel for the Municipal Council
has supported the action on the part of the Municipal Council. It is
submitted that the Municipal Council had rightly directed the petitioners
to produce the relevant documents pertaining to their claim of belonging
to Scheduled Castes as they were appointed on the posts meant for the
Scheduled Castes. It is submitted by referring to the documents annexed
to the affidavit-in-reply filed on behalf of the Municipal Council that the
appointment of the petitioners was made on the posts meant for the
Scheduled Castes. It is submitted that since the petitioners were appointed
on the posts meant for the Scheduled Castes, the respondent - Municipal
Council had rightly sought the necessary documents from them with a
view to verify their caste claim. It is, however, not disputed that in view of
the pendency of the question whether the persons professing Muslim
religion would be entitled to the benefits meant for the Scheduled Castes
before the larger Bench of the Hon'ble Supreme Court, this Court has
allowed the writ petition filed by an employee, who professed Muslim
religion and was appointed on a post meant for the Scheduled Castes, by
the judgment reported in 2017 (3) Mh. L.J. 151.
The learned Counsel for the respondent nos.1 and 2 denied
the claim of the petitioners that they were appointed on the posts meant
for the open category. It is submitted that the names of the petitioners
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were recommended through the Employment Exchange for the posts
meant for the Scheduled Castes and the petitioners were appointed on the
posts meant for the Scheduled Castes only. It is submitted that several
documents that are placed on record by the respondent no.3 would clearly
show that the petitioners were appointed on the posts meant for the
Scheduled Castes.
On hearing the learned Counsel for the parties and on a
perusal of the judgment, reported in 2017 (3) Mh.L.J. 151 as also the
Government Resolution, dated 7.12.2001, it appears that no fruitful
purpose could be served by asking the petitioners to tender the documents
pertaining to their caste claim and referring their matters to the Scrutiny
Committee for verification of their caste claim. It is held by the Hon'ble
Supreme Court that Islam does not recognize the Scheduled Castes and
the persons professing Muslim religion cannot claim to belong to the
Scheduled Castes. It appears that the question whether the non-inclusion
of Muslims in paragraph no.3 of the Constitution (Scheduled Castes Order
1950) is discriminatory and violative of the provisions of Articles 14, 15,
16 and 25 of the Constitution of India is pending before the larger Bench
of the Hon'ble Supreme Court in a reference. Taking the pendency of the
matter before the Hon'ble Supreme Court into consideration this Court, by
the judgment reported in 2017 (3) Mh.L.J. 151, has protected the
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services of an employee who professed Muslim religion but was appointed
on a post earmarked for the Scheduled Castes. This Court had in the
circumstances of that case that are similar to the circumstances in this
case directed that the petitioner's services should be protected and that he
should not be terminated for not producing the caste validity certificate. A
similar view as expressed by this Court in the judgment, reported 2017
(3) Mh.L.J. 151 needs to be expressed in this writ petition also. Hence, in
the peculiar circumstances of the case, it would be necessary to direct the
Municipal Council to protect the services of the petitioner as they are
working with the Municipal Council for nearly sixteen years.
Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned orders are quashed and set aside. The respondent no.3 is
directed to protect the services of the petitioner on the posts of Assistant
Teachers.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
