Chandrashekhar S/O Brijbahadur ... vs State Of Mah. Thr. Its Secretary, ...
2018 Latest Caselaw 21 Bom

WP   932/13                                          1                           Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
                        WRIT PETITION No. 932/2013

Chandrashekhar s/o Brijbahadur Yadav,
aged about 38 years, occ. Service Junior Clerk
in Panchayat Samiti Jivti,
Resident of Chandrapur, District Chandrapur.                                PETITIONER

                                     .....VERSUS.....
1.     State of Maharashtra,
       Through its Secretary,
       Ministry of Tribal Development Department,
       Mantralaya, Mumbai-400 032.
2.     Divisional Caste Scrutiny Committee No.2,
       Nagpur Division, Chandrapur,
       Chandrapur Milk Scheme Road, Jal Nagar,
       Chandrapur through its Member-Secretary.
3.     Chief Executive Officer,
       Zilla Parishad, Chandrapur.                                           RESPONDENTS

                       Shri N.C. Phadnis, Counsel for the petitioner.
     Mrs. K.S. Joshi, Additional Government Pleaders for the respondent nos.1 and 2.
                   Shri M.M. Sudame, counsel for the respondent no.3.


                                       CORAM :SMT.VASANTI  A  NAIK AND
                                                     A.D. UPADHYE, JJ.                  

DATE : 4 TH JANUARY, 2018.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

By this writ petition, the petitioner has challenged the order

of the respondent no.2-Divisional Caste Scrutiny Committee, Nagpur

Division, Chandrapur, dated 16.01.2013 invalidating the claim of the

petitioner of belonging to Ahir tribe, which falls under Nomadic Tribes

category. The petitioner has sought a declaration that the invalidation of

the caste claim of the petitioner would have no effect on the appointment

of the petitioner as the same was made on compassionate ground.

WP 932/13 2 Judgment

2. Shri Phadnis, the learned counsel for the petitioner, states

that the petitioner gives up the prayer in prayer clause (A), as the

grievance of the petitioner would stand redressed if the prayer made by

the petitioner in prayer clause (B) is granted. It is submitted that the

petitioner would restrict the petition only to the prayer for a declaration

that the appointment of the petitioner could not have been disturbed on

the basis of the order passed by the scrutiny committee.

3. The petitioner was appointed as a Junior Assistant by the

respondent no.3-Zilla Parishad on 12.12.2006. The mother of the

petitioner was working as a Supervisor in the Integrated Child

Development Scheme. The mother of the petitioner had expired while in

service on 24.10.2005 and on an application made by the petitioner, the

petitioner was appointed on compassionate ground in view of the death

of his mother, while in service. Since the petitioner had claimed to

belong to Ahir Nomadic Tribe, the caste claim of the petitioner was

referred by the Zilla Parishad to the scrutiny committee, for verification.

The scrutiny committee has invalidated the caste claim of the petitioner

by the order dated 16.01.2013 that was impugned in this writ petition. In

view of the invalidation of the caste claim, the respondent-Zilla Parishad

sought to terminate the services of the petitioner on the post of Junior

Assistant. In the aforesaid background, the petitioner had filed this writ

WP 932/13 3 Judgment

petition challenging the order of the scrutiny committee and also seeking

a declaration that the order of the scrutiny committee would not have any

adverse effect on the services of the petitioner. Since the petitioner has

given up the challenge to the order of the scrutiny committee, the petition

is restricted only to the prayer in respect of the declaration that the order

of the scrutiny committee would not have the consequence of terminating

the services of the petitioner as the petitioner was appointed on

compassionate ground.

4. Shri Phadnis, the learned counsel for the petitioner, submits

that the issue involved in this case was also involved in more than a

couple of writ petitions that came up for consideration before this Court

and by the judgments in Writ Petition Nos.4185 of 2015 and 2174 of

2007, this Court had held that the services of an employee appointed on

compassionate basis when the reservation policy was not applicable,

could not have been terminated on the invalidation of the caste claim. It

is stated that the judgments in the aforesaid writ petitions were relied on

in the judgment in the case of Pramod Shinde Versus State of

Maharashtra, reported in 2017 (3) Mh.L.J. 925 and it was held that the

services of an employee appointed on compassionate basis could not have

been terminated on the invalidation of his caste claim. It is stated that

since the issue involved in this case stands answered in favour of the

WP 932/13 4 Judgment

petitioner by the aforesaid judgments, a similar order needs to be passed

in favour of the petitioner, on parity.

5. Mrs. Joshi, the learned Additional Government Pleader

appearing for the scrutiny committee and Shri Sudame, the learned

counsel for the Zilla Parishad do not dispute the position of law as laid

down in the aforesaid judgments. It is, however, stated on behalf of the

respondent no.3 that the judgments in the aforesaid cases would not

apply to the case of the petitioner as the petitioner was appointed in a

vacancy meant for the Nomadic Tribes. It is stated that an appropriate

order may be passed in the circumstances of the case.

6. On a perusal of the judgments as also the appointment order

of the petitioner, dated 12.12.2006, it appears that the petitioner would

be entitled to the declaration that the respondent-Zilla Parishad would

not be entitled to terminate the services of the petitioner on the

invalidation of his caste claim as the petitioner was appointed on

compassionate basis. It is apparent from a reading of the appointment

order of the petitioner that the petitioner was appointed on

compassionate basis. The mother of the petitioner was working as a

Supervisor under the Integrated Child Development Scheme. Since the

mother of the petitioner had expired in the year 2005 while in service, on

a representation made by the petitioner for compassionate appointment,

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he was so appointed on the post of Junior Assistant by the order dated

12.12.2006. The petitioner appears to have been appointed on

compassionate basis in view of the death of his mother in the year 2005,

while in service. It is laid down by this Court in the judgments referred to

hereinabove that when the reservation policy was not applicable to

compassionate appointments, the services of the appointees cannot be

terminated on the invalidation of their caste claim. Merely because the

petitioner in this case, claimed to belong to Ahir Nomadic Tribe, his

services could not have been terminated on the invalidation of his caste

claim, when the petitioner was appointed on the post of Junior Assistant

on compassionate basis in the year 2006, when admittedly the reservation

policy was not applicable to compassionate appointments. The

submission made on behalf of the respondent no.3 that the petitioner

would not be entitled to any relief as the petitioner was appointed in a

vacancy meant for the Nomadic Tribes, is not well founded and is liable

to be rejected. Nothing is pointed out on behalf of the respondent no.3 to

show that at the relevant time, in the year 2006, reservation policy was

made applicable to the compassionate appointments. If the reservation

policy was not applicable to compassionate appointments, the respondent

no.3 could not have appointed the petitioner in a vacancy meant for the

Nomadic Tribes. If the respondent no.3 had filled the vacancy meant for

the Nomadic Tribes by appointing the petitioner in the said vacancy

WP 932/13 6 Judgment

though the petitioner was entitled for appointment only on

compassionate basis, the respondent no.3 has to blame itself. The

appointment of the petitioner in a vacancy meant for the Nomadic Tribes

would not disentitle the petitioner to the declaration as claimed, specially

when it is laid down by this Court in the aforesaid judgments that the

services of an employee appointed on compassionate basis cannot be

terminated on the invalidation of his/her caste claim, if at the relevant

time, the policy of reservation is not applicable to compassionate

appointments. Since admittedly, the reservation policy was not

applicable to compassionate appointments in the year 2006, the

submission made on behalf of the respondent no.3 that the declaration as

sought by the petitioner may not be granted, is liable to be rejected.

7. Hence, for the reasons aforesaid and also for the reasons

recorded in the judgment reported in 2017 (3) Mh.L.J. 925 (Pramod

Shivaji Shinde Versus State of Maharashtra & Others) and the judgments

in Writ Petition Nos.4185 of 2015 and 2174 of 2007, the writ petition is

allowed. It is hereby declared that the respondent no.3-Zilla Parishad

would not be entitled to terminate the services of the petitioner as the

petitioner was appointed on compassionate basis in the year 2006 when

the reservation policy was not applicable for compassionate

appointments.

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Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                    JUDGE

APTE