Bombay High Court
Sanjay Vishwasrao Jadhav vs State Of Maharashtra Through ... on 7 March, 2017
Bench: R.M. Borde
1
WP.462-2017.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.462 OF 2017
Sanjay Vishwasrao Jadhav ..Petitioner.
Vs.
1) State of Maharashtra
2) Superintending Engineer,
Koyana Construction Circle and Zonal Officer.
Satara.
3) Superintending Engineer,
Irrigation Project Circle, Satara.
4) Executive Engineer,
Jihe Kathapur Lift Irrigation
Satara. ..Respondents.
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Mr. Ramchandra K. Mendadkar for Petitioner.
Mr. Nitin P. Deshpande, AGP for Respondent No.4.
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CORAM: R.M. BORDE AND
A.S. GADKARI, JJ.
Reserved On: 28th February 2017
Pronounced On: 7th March 2017.
JUDGMENT (PER A.S. GADKARI, J.):-
1] Rule. Rule made returnable forthwith. By consent of the learned
counsel appearing for respective parties, heard finally.
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2] The petitioner has challenged the legality, validity and propriety
of the Order dated 11th August 2016 in Original Application No.921 of
2014 passed by the Maharashtra Administrative Tribunal, Mumbai Bench,
Mumbai, thereby dismissing the Original Application and confirming the
Order of dismissal of the petitioner from service dated 9.9.2014 passed by
the respondent No.2, however modified the date of termination from
4.6.2010 to 9.9.2014.
3] The petitioner was granted caste certificate by showing his caste
as "Thakar", Scheduled Tribe by the Taluka Executive Magistrate, Shirala,
District-Sangli dated 18.6.1992. On the basis of the said caste certificate of
"Thakar", Scheduled Tribe the petitioner was appointed on the
establishment of the respondent No.2 on a post reserved for Scheduled
Tribe candidate on regular basis on 31.7.1996. The petitioner joined the
services of the respondents on 12.8.1999 on the post of Assistant Store
Keeper.
4] The caste certificate of the petitioner along with other
documents were referred by the respondent No.2 to the Scheduled Tribe
Caste Scrutiny Committee, Pune Region, Pune on 16.11.2004 for its
verification. The Caste Scrutiny Committee by its Order dated 28.5.2010
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invalidated the said caste certificate by holding that, the petitioner does not
belong to the caste "Thakar" Scheduled Tribe and therefore his claim
towards same was held to be invalid. The Cate certificate issued by the
Taluka Executive Magistrate, Shirala, Dist-Sangli dated 18.6.1992 was
cancelled and confiscated. The Caste Scrutiny Committee in its Order
dated 28.5.2010 has held that, the petitioner has failed to prove his affinity
towards the caste "Thakar" Scheduled Tribe. It has further held that the
petitioner has utterly failed to prove his caste claim of "Thakar" Scheduled
Tribe by way of documentary evidence as well as affinity test also.
Therefore, it invalidated the caste certificate issued to the petitioner as
stated earlier. The record further reveals that the writ petition no.6854 of
2010 preferred by the petitioner against the Order of the Caste Scrutiny
Committee was dismissed by this Court by its Order dated 15.10.2010.
5] It is the case of the petitioner that, upon invalidation of the caste
by the Caste Scrutiny Committee, the respondents took a decision to treat
the petitioner as a candidate from open category. Thereafter series of
correspondence took place between the parties herein. The petitioner was
also given time-bound promotion benefit in terms of policy of the
respondent No.1-State, for which necessary sanctions were rendered by the
concerned authorities.
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6] That the respondent No.4 thereafter issued a show cause notice
dated 25.9.2013 informing the petitioner that, why action in terms of
Government Resolution dated 18.5.2013 should not be initiated against the
petitioner and called his explanation within 30 days from the date of
issuance of such notice. The petitioner submitted his representation/reply
dated 14.10.2013 to the said show cause notice and placed all facts on
record including the fact that he has been now treated as a person from
open category and has been granted benefits accordingly. That the
respondent No.2 thereafter passed an Order dated 9.9.2014 thereby
terminating the services of the petitioner with retrospective effect from
4.6.2010 and also directed to initiate action against the petitioner under
Section 10(1) of the Maharashtra Scheduled Castes, Scheduled Tribes, De-
notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of Issuance and Verification
of ) Caste Certificate Act, 2000.
7] Feeling aggrieved by the Order dated 9.9.2014, the
petitioner preferred Original Application No.921 of 2014 before the
Maharashtra Administrative Tribunal, Mumbai Bench. The Maharashtra
Administrative Tribunal by its impugned Order dated 11.8.2016 was
pleased to dismiss the said Original Application by directing the
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respondents to treat termination of the petitioner from 9.9.2014 and not
from 4.6.2010.The said order is impugned herein.
8] The Hon'ble Supreme Court in the case of Shalini Vs. New
English High School & Ors, reported in 2014 (2) Mh.L.J. 913, has held that
since there was no falsity in the claim of the appellant and as such it
cannot be viewed as having filed a 'false' caste certificate, the rigors of
section 10 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of Issuance of Verification of)
Caste Certificate Act, 2000 (23 of 2001) would not apply to the appellant to
be debarred from any further advantage.
The Full Bench of this Court in the case of Arun Vishwanath
Sonone Vs. State of Maharashtra & Ors., reported in 2015(1) Mh L.J. 457,
relying on the decision in the case of Shalini Vs. New English School &
Ors (Supra) and after taking into consideration various decisions of the
Supreme Court and this Court, in para-65 (d) (i) and (ii) held as under:
65 (d)-
(i) that upon verification by the Scrutiny Committee, the
Caste Certificate produced to secure an appointment, is no
found to be false or fraudulent,
(ii) that the appointee shall not take any advantage in terms
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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."
9] Mr. Deshpande, the learned AGP for the State while opposing
the present petition, submitted that the applicant was well aware about his
caste status that he does not belong to "Thakar" Scheduled Tribe and with
an ill intention and to avail concession and facilities must have obtained
caste certificate as belong to "Thakar" Scheduled Tribe and therefore the
petitioner is not entitled for any reliefs from this Court.
We are unable to accept the said submission of the learned AGP
so also the finding to that effect recorded by the Caste Scrutiny Committee.
It is to be noted here that the petitioner has obtained the said caste
certificate showing his caste "Thakar" from the Government authority
namely Taluka Executive Magistrate, Shirala, Dist. Sangli on 18.6.1992. A
safe primary presumptioni can be drawn that the concerned authority who
issued the caste certificate in favour of the petitioner had issued it after
making some preliminary enquiry into the matter. It is only at the stage of
its verification by the Caste Scrutiny Committee which after thorough
enquiry with respect to the certificate came to the conclusion that the
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petitioner has failed to prove his claim of caste "Thakar", Scheduled Tribe
by way of documentary evidence as well as by way of affinity test also.
We are of the view that it is for the respondent No.1
Government of Maharashtra to take appropriate remedial measures with its
concerned authorities who at the initial stage issued such certificate and
entire blame cannot be put on the person who receives such certificate, like
petitioner.
10] After scrutiny of the record of the present case, it reveals that,
admittedly there is no finding of fraud and or production of fabricated or
fraudulent caste certificate by the petitioner is recorded by the Caste
Scrutiny Committee. It has been held by the Full Bench of this Court in the
case of Arun V. Sonone (supra) that such of the candidates who are
appointed against the post reserved for reserved category candidates and
who are put in substantial number of years in the service in whose case
there is no finding of fraud, are entitled to the protection of service. As
stated earlier, the Caste Scrutiny Committee has invalidated the caste
certificate of the petitioner on the ground that the petitioner has failed to
establish his caste claim on the basis of documentary evidence and
affinity test, however, there was no allegation against the petitioner that he
produced fraudulent and/or fabricated caste certificate before the employer
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at the time of entering into the service. The Maharashtra Administrative
Tribunal in the impugned Order has erred in holding that the petitioner
obtained the said certificate for securing the benefits by practicing a fraud.
11] We therefore quash and set aside the Orders dated 9.9.2014
passed by the respondent No.2 and dated 11.8.2016 passed by the
Maharashtra Administrative Tribunal in Original Application No.921 of
2014 and hold that the petitioner's services are liable to be protected.
12] The respondents are directed to reinstate the petitioner within a
period of four weeks from today. The petitioner will be entitled for
continuity in service with effect from 9.9.2014 for all purposes. However,
the petitioner will not be entitled for back wages for the period during
which he was out of employment i.e. from 9.9.2014 till today i.e. 7 th March
2017. It is however made clear that the petitioner would be considered as a
candidate belonging to open category and would not be entitled for any of
the benefits including promotion on the basis of his claim belonging to
"Thakar" Scheduled Tribe.
13] Rule is made absolute in the aforesaid terms.
14] No order as to costs.
(A.S. GADKARI,J.) (R.M. BORDE, J.)
