Bombay High Court
Vasant Ramchandra ... vs Sch.Tribe ... on 27 June, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3055 OF 2000
AND
WRIT PETITION NO.3966 OF 2000
WRIT PETITION NO.3055 OF 2000
Vasant Ramchandra Kumbhare,
Junior Works Manager,
employed in Regional Training
Institute, Ambazari. ... Petitioner
Versus
1. Scheduled Tribes Certificate
Scrutiny Committee,
through it's Dy. Director (Research) &
Secretary, Adivasi Vikas Bhavan,
Giripeth, Nagpur.
2. State of Maharashtra,
through Secretary to Tribal
Development Department,
Mantralaya,
Mumbai-32.
3. Director (NG),
Ordnance Factories,
Govt. of India, Ministry of Defence,
10-A, S.K. Bose Road,
Calcutta-1.
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4. The Ordnance Factory Board,
Govt. of India, Ministry of Defence,
10-A, S.K. Bose Rd.,
Calcutta-700001.
5. Director General,
Ordnance Factories,
Ministry of Defence,
10-A, S.K. Bose Road,
Calcutta-700 001.
6. Union of India,
Ministry of Defence,
through Secretary,
who control and regulate the
functioning of the Ordnance
Factory Board,
Suraksha Bhavan,
New Delhi. ...Respondents
None for Petitioner.
Shri S.M. Ukey, Additional Government Pleader for Respondent Nos.1
and 2.
WRIT PETITION NO.3966 OF 2000
Dr. Subhash s/o Pundlik Kumbhare,
Aged about 45 years,
Occupation - Service -
Associate Professor,
Oral Diagnosis and Radiology,
Government Dental College &
Hospital, Aurangabad,
R/o C-2/5, Snehnagar,
Aurangabad. ...Petitioner
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Versus
1. The State of Maharashtra,
through the Secretary,
Medical Education and Drug
Department, Mantralaya,
Mumbai-32.
2. The Committee for Scrutiny and
Verification of Tribes Claim,
Nagpur. ... Respondents
Shri S.N. Tapadia, Advocate, holding for Shri V.V. Bhangde, Advocate
for Petitioner.
Ms Geeta Tiwari, Assistant Government Pleader for Respondent
Nos.1 and 2.
CORAM : R.K. DESHPANDE & MRS. SWAPNA JOSHI, JJ.
th
DATE OF RESERVING THE JUDGMENT : 13 June, 2017
th
DATE OF PRONOUNCING THE JUDGMENT : 27 June, 2017
JUDGMENT (Per R.K. DESHPANDE, J.) :
1. In Writ Petition No.3055 of 2000, the petitioner-Vasant
Ramchandra Kumbhare was initially appointed as Godown Keeper
on 1-6-1964 in the Ordnance Factory, functioning under the control
of the Government of India. He was promoted to the post of Tracer
on 1-8-1968, where he worked up to 31-12-1972. He was
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thereafter promoted as Draftsman on 1-1-1973, and on the said
post, he worked up to 18-8-1978. He was promoted to the post of
Supervisor on 19-8-1978 and was regularized in the said post on 1-
6-1979. He was promoted to the post of Chargeman Grade-I on 26-
7-1984 and was promoted as Assistant Foreman on 6-2-1991. He
was promoted to the post of Foreman (Mechanical) on 22-11-1996
and he stood retired from service in the month of January, 2002 on
attaining the age of superannuation. The initial appointment of the
petitioner and all subsequent promotions were as a candidate
belonging to Halba Scheduled Tribe category.
2. On reference of his claim to the Committee for Scrutiny of
Tribe Claims, the claim was invalidated by an order
dated 26-4-1999, which is the subject-matter of challenge in this
petition. The Committee has held that the petitioner has failed to
establish his caste claim on the basis of documentary evidence as
well as affinity test and, therefore, the caste certificate
dated 18-5-1983 produced by the petitioner is invalidated.
3. In Writ Petition No.3966 of 2000, the
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petitioner-Dr. Subhash s/o Pundlik Kumbhare was appointed as
Lecturer in Oral Diagnosis and Radiology in the services of the State
Government by an order dated 2-5-1985. He was thereafter
promoted to Associate Professor at Government Dental College by
an order dated 25-8-1988. Initially, the appointment of the
petitioner and further promotion was as a candidate belonging to
Halba Scheduled Tribe.
4. The claim of the petitioner for Halba Scheduled Tribe was
referred to the Committee for Scrutiny and Verification of Tribe
Claims and the same was ultimately invalidated by an order dated
1-3-2000, which is the subject-matter of challenge in this petition.
The Committee has held that the petitioner has failed to establish
his claim on the basis of documentary evidence as well as affinity
test and, therefore, the caste certificate dated 27-6-1980 produced
by the petitioner in support of his claim was found to be invalidated
and it was cancelled.
5. In both these petitions, the petitioners waive their claim of
challenge to the orders passed by the Scrutiny Committee, but on
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the basis of the Government Resolution dated 15-6-1995 issued by
the State of Maharashtra along with its corrigendum
dated 24-7-1998 and a similar decision taken by the Government of
India on 10-8-2008, they claim protection on the post which they
held immediately prior to 15-6-1995. It is also not in dispute that
there is no finding of fabrication of documents, fraud or
misrepresentation recorded by the Committee, against the
petitioners in obtaining benefits and concessions for Scheduled
Tribe category or in obtaining a caste certificate which is
invalidated.
6. The question involved in both these petitions is, therefore,
whether upon failure to establish the claim for Scheduled Tribe
category, the petitioners are entitled to protection in service on the
post which they held substantively by way of promotion prior to
15-6-1995 or whether they have to be brought back to their original
post on which they were initially appointed, while extending the
protection of the Government Resolution dated 15-6-1995 with
clarification issued by the State of Maharashtra and the office
memorandum dated 10-8-2008 issued by the Government of India
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on the same lines?
7. Shri Tapadia, the learned counsel for the petitioner in Writ
Petition No.3966 of 2000, has placed reliance upon the decision of
the Apex Court in the case of Shalini v. New English High School
Association and others, reported in (2013) 16 SCC 526. In the said
decision, the petitioner was initially appointed on the post of
Assistant Teacher with effect from 1-1-1984 on the basis of the
certificate of Halba Scheduled Tribe issued by the competent
authority. She was confirmed on the said post on 1-1-1984 and
was thereafter promoted on 17-9-1989 to the post of Assistant
Head Mistress. On 28-4-1994, she was further promoted to the
post of Head Mistress, and all these promotions were subject to
production of caste validity certificate.
8. In the aforesaid decision, the Scrutiny Committee
invalidated the caste claim of the employee and thereupon she was
terminated from service. She approached the School Tribunal
challenging her termination on the basis of invalidation of her caste
claim, which was allowed, directing her reinstatement in service.
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The learned Single Judge set aside the order of reinstatement,
which was confirmed by the Division Bench in Letters Patent
Appeal. The Apex Court allowed the appeal filed by the employee
and directed her re-appointment on the post of Head Mistress, to
which she was lastly promoted prior to 15-6-1995. The Apex Court
considered the question of protection of service upon invalidation
of caste claim and it is held that the employee was entitled to
protection in service on the post of Head Mistress. However, since
some other candidate was already occupying the said post, the said
candidate was not disturbed and upon the post falling vacant,
directed the reappointment of the petitioner to the post of Head
Mistress.
9. The Division Bench of this Court in the case of Prabhakar
s/o Rushi Nandanwar v. Joint Commissioner and Vice-Chairman
Scheduled Tribe Certificate, Caste Scrutiny Committee and others,
reported in 2013(1) Mh.L.J. 156, considered the question of
granting protection in service upon invalidation of caste claim in
paras 12 and 13, which are reproduced below :
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"12. It can thus be clearly seen that taking into
consideration the peculiar circumstances in the case of
Milind Katware, the Apex Court has protected all
admissions/appointments which had become final prior to
the date of the judgment. In the case of Kavita Solunke
(supra), the Apex Court has in unequivocal terms held that
all appointments even of Halba Koshtis which had become
final are entitled to be protected unless it is found that the
claim is fraudulent or fabricated."
"13. However, at the same, we may add that what has
been protected by the Apex Courty is only the appointments
of the candidates belonging to Halba Koshti which had
become final. We are of the considered view that the word
"appointment" cannot be stretched to include "promotion"
also. Permitting an employment of a person who has served
for long period is of a different pedestal than permitting him
even to enjoy the promotional benefits on the basis of his
claim of belonging to Scheduled Tribe which is found to be
invalidated. Not protecting the employment/appointment of
such a person would result in great hardship at an advanced
age as it would not be possible for such persons to get
another employment at this age. It would, therefore, be not
appropriate to drive such persons on road. Particularly so
when on account of a confusion that was prevailing as to
whether the Halba Koshtis are included Halba/Halbi or not,
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we find that the appointment of such person deserves
protection. However, such a consideration cannot be made
applicable to the promotions inasmuch as if the same is
accepted, it will be giving premium to a person whose claim
has been invalidated and at the same time, it would deprive
a legitimate Scheduled Tribe candidate of the promotion to
which he is entitled to on the basis of him belonging to
Scheduled Tribe."
This Court held that the Apex Court has protected all
admissions/appointments which had become final prior to the date
of delivery of the judgment on 28-11-2000 by it in the case of State
of Maharashtra v. Milind and others, reported in 2000(1) Mh.L.J. 1,
unless such claim is found to be fraudulent or fabricated. However,
the Court further clarified that the protection that is granted to the
petitioners is only in respect of their initial appointment and if any
promotions are granted to the petitioners on the basis of their claim
belonging to Scheduled Tribe, the authorities would be at liberty to
withdraw the said benefits and revert the petitioners to such of the
posts to which they would be legitimately entitled, considering their
entry into service from open category.
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10. In another decision of the Division Bench of this Court in
the case of Anil s/o Tulshiram Sonkusle v. State of Maharashtra and
others, reported in 2014(4) Mh.L.J. 614, the decision of the Apex
Court in the case of Shalini, cited supra, was considered in para 9,
which is reproduced below :
"9. Even insofar as the judgment of the Apex Court in
the case of Shalini vs. New English High School Association
and ors. (supra) is concerned, it could be seen that she was
appointed as Assistant Teacher with effect from 1-1-1984.
She had also been promoted as Assistant Head Mistress and
Head Mistress. However, while allowing special leave
petition filed by her, the Apex Court directed her
reinstatement as an Assistant Teacher. The Apex Court
found that with the passage of time it is possible that there
may be another incumbent as Head Mistress of the
respondent No.1-School and it would not be equitable to
remove such person. However, even in her case the Apex
Court declined the benefits of back-wages. The Apex Court
further found that if this post falls vacant before the
appellant reaches the age of retirement or superannuation,
she shall be re-appointed to that post but with no further
promotion as a Scheduled Tribe candidate unless she is
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otherwise entitled as a special backward class candidate."
In para 14, the Division Bench followed the earlier decision in the
case of Prabhakar Nandanwar, cited supra, and it is held as under :
"14. As a matter of fact the said question directly arose
for consideration before the Division Bench of this Court to
which one of us is a party (Shri Gavai, J.) in the case of
Prabhakar s/o Rushi Nandanwar vs. Joint Commissioner
and Vice-Chairman, 2013(1) Mh.L.J. 156. The Division
Bench observed thus :--
13. However, at the same, we may add that what has
been protected by the Apex Court is only the
appointments of the candidates belonging to Halba
Koshti which had become final. We are of the
considered view that the word "appointment" cannot be
stretched to include "promotion" also. Permitting an
employment of a person who has served for long period
is on a different pedestal than permitting him even to
enjoy the promotional benefits on the basis of his claim
of belonging to Scheduled Tribe which is found to be
invalidated. Not protecting the
employment/appointment of such a person would result
in great hardship at an advanced age as it would not be
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possible for such person to get another employment at
this age. It would, therefore, be not appropriate to drive
such persons on road. Particularly so when on account
of a confusion that was prevailing as to whether the
Halba Koshtis are included Halba/Halbi or not, we find
that the appointment of such person deserves protection.
However, such a consideration cannot be made
applicable to the promotions inasmuch as if the same is
accepted, it will be giving premium to a person whose
claim has been invalidated and at the same time, it
would deprive a legitimate Scheduled Tribe candidate of
the promotion to which he is entitled to on the basis of
him belonging to Scheduled Tribe."
At the cost of repetition, we may reiterate that what has
been protected in the case of Milind (supra) is only
admissions and appointments which had become final."
The aforesaid decision holds that the word "appointment" used by
the Apex Court in the ultimate para of the decision in Milind's case,
cited supra, cannot be stretched to include "promotion" also. It
further holds that permitting an employment of a person, who has
served for long time, is on a different pedestal than permitting him
even to enjoy the promotional benefits on the basis of his claim of
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belonging to Scheduled Tribe, which is found
to be invalidated. It further holds that granting protection in the
promotional post would amount to giving premium to a person
whose claim has been invalidated and at the same time it would
deprive a legitimate Scheduled Tribe candidate of the promotion, to
which he is entitled, on the basis of his belonging to Scheduled
Tribe.
11. After the decisions of the Division Bench of this Court in
Prabhakar Nandanwar and Anil Sonkusle's cases, cited supra, the
question of granting protection in service upon invalidation of caste
claim was considered by the Full Bench of this Court in Arun s/o
Vishwanath Sonone v. State of Maharashtra and others, reported in
2015(1) Mh.L.J. 457. Paras 51, 58 and 59 of the said decision
being relevant, are reproduced below :
"51. In Milind's case, the law prevailing as pronounced
by the Apex Court on earlier occasions in Bhaiya Ram
Munda vs. Anirudh Patar and others, reported in
(1971) 1 SCR 804, and Dina vs. Narayan Singh, reported in
38 ELR 212, was overruled by the Constitution Bench, and
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to avoid uncertainty, multiplicity of litigation, and
reopening of the settled issues, the direction is issued that all
admissions and appointments that have become final shall
remain unaffected by the said judgment. In the absence of
such a direction, the judgment would have operated
retrospectively affecting all admissions and appointments
that had become final, creating uncertainty, instability and
chaotic situation. Such direction is, therefore, binding on all
the Courts and accordingly it is expected to decide the cases.
The doctrine of prospective overruling can also be considered
to be a part of judicial legislation and has, therefore a
binding effect under Article 141 of the Constitution of India
so as to take care of the transitory situation like the laws
made by the Parliament or the State Legislatures to save the
past transactions and to prohibit their reopening of the
concluded issues on the basis of new enactment."
"58. Para 4 of the Government Resolution
dated 15-6-1995, which is translated, is reproduced below :
"4. The reservation given to the abovementioned
'Special Backward Category' will remain as a
backlog for direct service recruitment and
promotion. The principle of creamy layer will not
apply to this category. The persons in the category
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who have prior to this on the basis of Scheduled
Tribe certificate obtained admission in the
Government, semi-government services on
promotion, they should not be removed from this
promotion or service."
Perusal of the aforesaid provision of the Resolution shows
that the instructions are issued that the persons/candidates,
who joined the Government service by producing a Caste
Certificate belonging to Scheduled Tribe category and have
been promoted, should not be removed from service or
reverted from the post. The aforesaid position was further
clarified in another Government Resolution
dated 30-6-2004, and clause (a) therein being relevant is
reproduced below :
"(a) The non-tribals who have received
recruitment promotion in the government/
semi-governmental services on the reserved seats
for the Scheduled Tribes prior to 15-6-1995,
should not be removed from service or should not
be demoted. They should be shown in the
constituent to which they belong. Henceforth the
reservation benefits entitled to that particular
constituent will be due to them and the vacated
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posts in this manner should be filled from the
tribal category."
In terms of the aforesaid Resolution, the non-tribals, who
have received the promotion against the post reserved for
Scheduled Tribes prior to 15-6-1995 neither to be removed
from service nor to be demoted from the post to which they
were promoted. However, these persons should be shown in
the constituent to which they belong and the post remaining
vacant on account of their leaving the job, should be filled in
from the tribal category. The operation of both these
Government Resolutions is not restricted to the persons
belonging to caste "Koshti" or "Halba Koshti".
"59. The Government Resolutions dated 15-6-1995
and 30-6-2004 fell for consideration of the Apex Court in
the case of Punjab National Bank vs. Vilas Bokade and
another, reported in 2007(3) Mh.L.J. (S.C.) 805 =
(2008) 14 SCC 545. The decision was rendered by the
Division Bench of the Apex Court concerning of M/s. H.K.
Sema and V.S. Sirpurkar, JJ. Both the Hon'ble Judges have
written concurring judgments. The independent view taken
by both the Judges clearly hold that the protection of both
these Government Resolutions was available as a result of
the decision in Milind's case. In Shalini's case, the Apex
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Court has held that there is a palpable wisdom in the office
memorandum dated 10-8-2008 on the similar lines issued
by the Government of India, Ministry of Personnel, Public
Grievances and Pension, Department of Personnel and
Training. In respect of the Government Resolution
dated 15-6-1995, Shalini's case holds that virtually it grants
status quo as regards employment inasmuch it states that
those persons, who, on the basis of the Caste Certificates,
already stand appointed or promoted in the Government of
Semi-Government, shall not be demoted or removed from
service. After referring to various castes grouped together
under the Government Resolution dated 15-6-1995 read
with the Government Resolution dated 7-10-1994, the Apex
Court posed a question in para 9, "Can it, therefore,
seriously be contended that the person, who has honestly, in
contradistinction with falsely, claimed consanguinity with a
certain group, which was later on found not to belong to an
envisaged Scheduled Tribe, but a Special Backward Class, be
visited with termination of her employment? It is answered
by holding that "We think that, that is not the intent of law
and certainly was not of the three-Judge Bench was
confronted with in Dattatray"."
In para 51, the Full Bench of this Court considered the decision of
the Apex Court in Milind's case, and referring to the doctrine of
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prospective overruling, it is held that to avoid uncertainty,
multiplicity of litigation and reopening of settled issues, the
direction is issued by the Apex Court that the appointments that
have become final shall remain unaffected by the said judgment. It
is further held that in the absence of such direction, the judgment
would have operated retrospectively affecting all the appointments
that had become final, creating uncertainty, instability and chaotic
situation. In paras 58 and 59, the Full Bench considered the impact
of the Government Resolutions dated 15-6-1995 and 30-6-2004
issued by the State Government and the similar office
memorandum dated 10-8-2008 issued by the Government of India
granting protection to all appointments and promotions made
up to 15-6-1995 against a post reserved for backward class
category, and it is held that such appointments and promotions
cannot be cancelled.
12. On superficial look, there seems to be some conflict in the
decisions of the Division Bench in the cases of Prabhakar
Nandanwar and Anil Sonkusle and the decision of the Full Bench of
this Court in the case of Arun Sonone. The Division Bench took the
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view that the word "appointment" used in the decision of the Apex
Court in Milind's case cannot be stretched to include "promotion"
also, and it is supported by reasons. Both these decisions do not
consider the impact of the Government Resolutions and office
memorandum granting protection in promotions affected prior to
15-6-1995. The Full Bench holds that as per the provisions of the
Government Resolutions and the office memorandum, the
persons/candidates, who joined the Government service by
producing caste certificate belonging to Scheduled Tribe category
and have been promoted, should not be removed from service or
reverted from the post. After tracing out the history, the Full Bench
has considered the decisions of the Apex Court in the case of
Punjab National Bank v. Vilas Bokade and another, reported in
2007(3) Mh.L.J. (S.C.) 805, and Shalini's case (supra), referred to
therein, to take such a view.
13. The law of precedents, as we understand, need to be
stated. We are bound by any direct pronouncement of a Co-
ordinate Bench on the proposition of law having bearing on a live
factual dispute involved therein, and we cannot sit in appeal over
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such decision. We have to respect it as a matter of propriety and
judicial discipline. We cannot endeavour to find fault with the
decision of a Co-ordinate Bench unless we propose to refer the
matter to a larger Bench for decision after recording reasons for
disagreement, if any. However, any decision rendered by a Co-
ordinate Bench of the High Court on the abstract proposition of law
having no bearing on the factual aspects involved in the matter,
would assume a character of an obiter dicta, i.e. an opinion which is
not necessary to reaching a decision in the matter. Such decision
would not constitute a ratio which would bind us. [see paras 21,
22, 26 and 27 of the decision of the Apex Court in the case of
Balwant Rai Saluja and another v. Air India Limited and others,
reported in (2014) 9 SCC 407]. The only exception to this principle
would be a decision rendered by a larger Bench on the abstract
proposition of law in a reference of a live dispute, which would
bind us. It is true that we are bound even by an obiter in the
decision of the Apex Court in the absence of its direct
pronouncement on the same question in any other matter.
14. We have minutely gone through the decision of the
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Division Bench of this Court in the case of Prabhakar Nandanwar,
cited supra, and we do not find the factual aspects involved in the
said case. The Division Bench has considered the protection
granted by the Apex Court in the cases of State of Maharashtra v.
Milind and others [2001(1) Mh.L.J. 1] and Kavita Solunke v. State
of Maharashtra and others [2012(5) Mh.L.J. 921]. It holds in
para 13 that when the Apex Court directs that all the appointments,
which had become final prior to the date of the judgment would
stand protected, the word "appointment" cannot be stretched to
include "promotion" also. The Court proceeds on the hypothetical
factual position, which becomes clear from the direction given in
para 15(ii) of the said decision to the effect that "It is made clear
that if any promotions are granted to the petitioners on the basis of
their claim of belonging to Scheduled Tribe, the authorities would
be at liberty to withdraw the said benefits and revert the petitioners
to such of the posts to which they would be legitimately entitled
considering their entry into service from open category." However,
it is not clear as to whether the protection was refused to
promotions prior to 15-6-1995 or subsequent to it.
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15. In the case of Anil Sonkusle (supra), the petitioner was
recruited initially in the post of Junior Clerk, he was promoted to
the post of Senior Clerk on 20-5-1992, and thereafter he was
promoted as Head Clerk on 24-8-2000. The caste claim of the
petitioner therein was found to be invalidated and, therefore, he
was reverted from the post of Head Clerk to the post of Senior
Clerk in which the service rendered by him was protected. The
Division Bench confirmed such protection in a promotional post of
Senior Clerk by dismissing writ petition challenging the order of
reversion passed on 2-6-2014. In view of this, the question
involved in the present case really did not fall for consideration in
the case of Anil Sonkusle (supra). Having granted protection in
service in promotional post, the additional observation that the
word "appointment" in the decision of the Apex Court in Milind's
case (supra) cannot be stretched to include "promotion" also, is
mere surplusage.
16. In Anil Sonkusle's case, the Division Bench considers the
decision in Shalini's case in para 9, and in para 12, it holds the
grounds which weigh while protecting a person's appointment even
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after invalidation of the claim for Scheduled Tribe, would not
necessarily follow for protecting the promotional benefits,
otherwise it would amount to giving premium and the genuine
Scheduled Tribe candidates will be deprived of the benefits meant
for them. In para 7.3 of Shalini's case, it is held as under :
"7.3. ... A perusal of the judgment in Vilas by
Sirpurkar, J., as well as Solunke makes it clear that this
protection is available by virtue of the decisions of this
Court; it is not exclusively or necessarily predicated on any
Resolution or Legislation of the State Legislature."
In para 7.4, it is held as under :
"7.4. Where a Resolution or Legislation exists, its raison
d'etre is that protection is justified in praesenti (embargo on
removal from service or from reversion) but not in futuro
(embargo on promotions in the category of Scheduled Caste
or Scheduled Tribe)."
In para 10, it is held as under :
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"10. We must now reflect upon the Government
Resolution dated 15-6-1995 passed by the Government of
Maharashtra. Virtually it grants status quo as regards
employment inasmuch as it states that those persons who,
on the basis of caste certificates, already stand appointed or
promoted in the Government or Semi-Government, shall not
be demoted or removed from service. ..."
In para 11 of the decision, it is held as under :
"11. ... In Nimje another two-Judge Bench held that the
Government Resolution dated 15-6-1995 would continue to
apply even after the passing of the 2000 Act so long as the
appointment had taken place prior to 1995. There is,
therefore, palpable wisdom in the Office Memorandum
dated 10-8-2010 of the Government of India, Ministry of
Personnel, Public Grievances and Pensions, Department of
Personnel & Training to the effect that "it has been decided
that the persons belonging to the "Halba-Koshti/Koshti"
caste who got appointment against vacancies reserved for the
Scheduled Tribes on the basis of Scheduled Tribe certificates,
issued to them by the competent authority, under the
Constitution (Scheduled Tribes) Order, 1950 (as amended
from time to time) relating to the State of Maharashtra and
whose appointments had become final on or before
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28-11-2000, shall not be affected. However, they shall not
get any benefit of reservation after 28-11-2000"."
The decision in Anil Sonkusle's case failed to notice the aforesaid
paras in Shalini's case, more particularly para 10, reproduced
above, and the decision in Prabhakar Nandanwar's case failed to
notice decision of the Apex Court in Punjab National Bank's case,
which are binding precedents.
17. Though the decisions in Prabhakar Nandanwar and Anil
Sonkusle's cases were rendered by the Division Bench prior in point
of time of the decision in Arun Sonone's case, the precise question as
to whether the protection in service upon invalidation of the caste
claim is to be granted in the initial post or in the last promotion
which became final prior to 15-6-1995, also did not fall for
consideration of the Full Bench. The question considered by the
Full Bench was general in nature and it is not the ratio of the said
decision that the word "appointment" used in the decision of the
Apex Court in Milind's case also include "promotion". We do not
propose to question or comment upon the correctness of the
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proposition of law laid down by the Division Bench in Prabhakar
Nandanwar and Anil Sonkusle's cases that the word "appointment"
cannot be stretched to include "promotion" also, we respect the
same and follow it.
18. The decision of the Apex Court in Milind's case rendered
prior to the decision in Punjab National Bank and Shalini's cases
does not take into consideration the protection in service extended
by the State Government or the Central Government, but by
invoking a doctrine of prospective overruling, it protects all
appointments that have become final prior to the date of the
judgment in Milind's case on 28-11-2000. However, what we find
is that in terms of the direct pronouncement of the Apex Court in
Punjab National Bank v. Vilas Bokade and another, reported in
(2008) 14 SCC 545, and Shalini's case, not only the appointments,
but also the promotions that have become final prior to 15-6-1995,
are protected by virtue of the Government Resolution dated 15-6-
1995 and the clarifications dated 24-7-1998 and 30-6-2004 issued
by the State of Maharashtra and the similar office memorandum
dated 10-8-2008 issued by the Government of India. The decisions
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in Punjab National Bank and Shalini's cases followed by a Full
Bench in Arun Sonone's case rendered subsequent to the decision of
the Apex Court in Milind's case on the aforesaid Government
Resolutions and office memorandum, are binding upon us and we
cannot venture to deviate from it. What has been held in para
66(a) of the decision in Arun Sonone's case, need to be highlighted,
and it is reproduced below :
"66. In view of the law, which we have laid down,
the relief of protection of service after invalidation of
caste claim can be granted by the High Court on the
basis of the judgment of the Hon'ble Supreme Court in
the cases of Kavita Solunke vs. State of Maharashtra
and others, reported in 2012(5) Mh.L.J. (S.C.) 921 =
2012(8) SCC 430, and Shalini vs. New English High
School Association and others, reported in
2014(2) Mh.L.J. (S.C.) 913 = (2013) 16 SCC 526. The
manner and the extent to which such protection is to be
made available, is laid down as under :
(a) The appointments or promotions made up to
15-6-1995 in public employment on the basis of the
Caste Certificates against a post reserved for any of the
backward class categories, stand protected in terms of
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the Government Resolutions dated 15-6-1995 and
30-6-2004 and shall not be disturbed, and the
appointments that have become final between
15-6-1995 and 28-11-2000 shall remain unaffected in
view of the decision of the Apex Court in Milind's case."
19. In view of the above, we reconcile the position and hold
that all appointments and promotions prior to 15-6-1995 stand
protected by virtue of the Government Resolutions
dated 15-6-1995, 24-7-1998 and 30-6-2004 issued by the State of
Maharashtra, the office memorandum dated 10-8-2008 issued by
the Government of India, and the decisions of the Apex Court in
Punjab National Bank and Shalini's cases. In terms of the decision
of the Apex Court in Milind's case, as interpreted by the Division
Bench in the cases of Prabhakar Nandanwar and Anil Sonkusle, only
the initial appointments made between 15-6-1995 and
28-11-2000 which have become final, would stand protected, as
has been observed in para 66(a) of the Full Bench judgment in
Arun Sonone's case. The protection is not available in the post to
which such candidate is promoted after 15-6-1995.
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20. We conclude this judgment by holding that upon failure to
establish the caste claim for Scheduled Tribe category, the
petitioners would be entitled to protection in service on the post
which they substantively held by way of promotion prior to
15-6-1995, and if such promotion was final, then they cannot be
brought back to the lower post or to their original post on which
they were initially appointed.
21. In the result, both these petitions are allowed.
The petitioner-Vasant Ramchandra Kumbhare in Writ
Petition No.3055 of 2000 would be entitled to protection in service
on the post of Assistant Foreman, to which he was promoted on
6-2-1991. He would be entitled to all consequential benefits,
including pay protection. However, his promotion to the post of
Foreman (Mechanical) effected on 22-11-1996 cannot be protected.
So far as the petitioner-Dr. Subhash s/o Pundlik Kumbhare
in Writ Petition No.3966 of 2000 is concerned, he would be entitled
to protection of his service on the post of Associate Professor at
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Government Dental College, effected by an order dated 25-8-1988,
and would accordingly be entitled to all consequential benefits.
However, if he was not promoted thereafter to further post prior to
15-6-1995 on substantive basis, he would not be entitled to it as a
candidate belonging to Scheduled Tribe category.
22. Entire monetary benefits, if any, shall be paid to both the
petitioners within a period of six months from today. There shall
not be recovery of salary paid to them on the post to which there
was promotion after 15-6-1995.
23. Rule is made absolute in above terms. No order as to
costs.
JUDGE JUDGE
Lanjewar
