Bombay High Court
Dnyaneshwar S/O Uttamrao Ghagare vs Chief Executive Officer, Zilla ... on 14 March, 2017
Bench: B.P. Dharmadhikari
1 140317 judg.wp 6748.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.6748 of 2016
Dnyaneshwar s/o Uttamrao Ghagare,
Aged 48, Occ.-Nil, R/o.-Vivekanand Nagar,
Tah. Mehakar, Dist. Buldhana. .... Petitioner.
Versus
1] Chief Executive Officer, Zilla Parishad, Buldhana,
Tah.,Dist.-Buldhana.
2] Scheduled Tribe Certificate Scrutiny Committee,
Division Amravati, through its Chairman,
Byepass Road, Tq. Dist-Amravati. .... Respondents.
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Shri M.V. Bute, Advocate for petitioner.
Shri P.R. Wagh, Advocate for resp. no.1.
Mrs. K.S. Joshi, AGP for respno.2.
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Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 14
th
March, 2017 .
ORAL JUDGMENT (Per Mrs. Swapna Joshi, J.)
Rule. Rule made returnable forthwith. The petition is
heard finally at the stage of admission with the consent of the
learned counsel for the parties.
2] By this writ petition, the petitioner challenges the order of
his termination dated 26-03-2007 and seeks the protection of his
service after his reinstatement by relying on the judgment of the
2 140317 judg.wp 6748.16.odt
Full Bench of this Court in the case of Arun s/o Vishwanath
Sonone vs State of Maharashtra and others, reported in 2015(1)
Mh.L.J. 457.
3] The petitioner is born in the year 1972. He obtained the
caste certificate from the Executive Magistrate in the year 1991
showing that he belongs to "Mahadeo Koli" (Scheduled Tribe). On
the basis of said certificate, he secured employment as Assistant
Teacher. He was appointed on 30-06-1995. The caste claim of the
petitioner was referred to the Scrutiny Committee which was
invalidated vide order dated 18-05-2016. The respondent no.1-
Zilla Parishad, long before invalidation of the petitioner's caste
claim, terminated his services, vide order dated 26-3-2007.
4] The learned Counsel for the petitioner submitted that the
case of the petitioner stands covered by the judgment of the Full
Bench in the case of Arun s/o Vishwanath Sonone v. State of
Maharashtra and others, reported in 2015(1) Mh.L.J. 457 and
therefore, the petitioner would be entitled to reinstatement as
well as the protection of his services, as the petitioner was
appointed before cut off date that is 28-11-2000 and there is no
observation in the order of the Scrutiny Committee about any
fraud being practiced by the petitioner while seeking the benefits
meant for the "Mahadeo Koli" (Scheduled Tribe). The learned
counsel contended that the caste claim of the petitioner is
invalidated, as the petitioner could not prove the same on the
basis of the documents and the affinity test.
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5] The learned AGP for the respondent no.2-Scrutiny
Committee does not dispute the position of law as laid down by
the Full Bench. The learned AGP fairly admitted that the
petitioner was appointed before the cut off date that is
28-11-2000 and there is no adverse observation against the
petitioner in the order of the Scrutiny Committee, except that the
caste claim of the petitioner is invalidated. The learned AGP fairly
admitted that a finding of fraud is not recorded against the
petitioner in the order of the Scrutiny Committee.
6] In the case of Arun Sonone v. State of Maharashtra,
protection of services can be granted on fulfillment of 3 conditions
viz, i) that upon verification by Scrutiny Committee, the caste
certificate produced to secure appointment is not found to be false
and fraudulent, ii) that appointee shall not take any advantage in
terms of promotion or otherwise after 28-11-2000 solely on the
basis of his claim as a candidate belonging to any of the Backward
Class Category & iii) it shall be permissible for competent
authority to withdraw the benefit or promotion obtained after
28-11-2000.
7] The learned counsel for respondent no.1 contended that
there is a gross delay in filing the petition as the petitioner has
retired on 26-03-2007 and now he cannot claim reinstatement at
belated stage in the year 2016.
8] Admittedly, the petition is filed after a period of 9 years
from the date of termination of the petitioner. However, as the
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petitioner was terminated during the pendency of the scrutiny of
the caste claim before the Scrutiny Committee, it cannot be
construed as delay as such. In fact respondent no.1 has acted
arbitrarily by terminating the services of petitioner, although his
caste claim was pending before the Scrutiny Committee. Thus,
the petitioner is entitled for reinstatement and his services should
be treated as continuous. However the petitioner is not entitled
for back wages, as he did not challenge that termination before
the Scrutiny Committee which ultimately invalidated his caste
claim. Nobody had prohibited him from doing so.
9] The learned counsel for respondent no.1 submitted that he
has no instructions whether there is vacancy available in the
primary school of respondent no.1. In such circumstances, the
respondent no.1 should reinstate the petitioner as & when there
is vacancy to accommodate the petitioner in their school.
10] Thus, both the conditions, that are required to be satisfied
while seeking the protection of services in view of the judgment of
the Full Bench, stand satisfied in the case of the petitioner. The
petitioner was appointed in the year 1995 that is before the cut off
date and there is no observation in the order of the Scrutiny
Committee that the petitioner had fraudulently secured the
benefit meant for "Mahadeo Koli" (Scheduled Tribe). In view
thereof, the services of the petitioner need to be protected.
11] In view of the aforesaid reasons, the writ petition is partly
allowed :-
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(i) The termination orders dated 26.3.2007 issued by
respondent no.1-Zilla Parishad is set aside. Respondent to
reinstate the petitioner as directed below on the post of
Assistant Teacher on the condition that the petitioner
tenders an undertaking in this Court and before the
respondent no.2 within a period of four weeks that neither
the petitioner nor his progeny would claim the benefits
meant for "Mahadeo Koli" (Scheduled Tribe), in future.
ii) The respondent no.1-Zilla Parishad shall reinstate
the petitioner as & when the vacancy becomes available in
the primary school of respondent no.1.
iii) After such reinstatement, the petitioner is entitled to
continuity of service, however, the petitioner would not be
entitled to the arrears of salary or any monetary benefits
flowing from the order of continuity of service for the
period during which he was out of service.
iv) Continuity in service is awarded only to count the
qualifying service.
12] Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Deshmukh
