Dr.Subhash Pundlik Kumbhare vs The State Of Maha. & Another
2017 Latest Caselaw 3615 Bom

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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