Pandurang Ramkishan Darewar vs Maharashtra Jeevan Pradhikaran ...
2021 Latest Caselaw 10424 Bom

                                     -1-

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION NO.7265 OF 2020


Pandurang Ramkishan Darewar,
Age : 56 years, Occ. Service
as Deputy Engineer, MJP,
Presently posted to work under
Z.P. Rural Water Supply Scheme,
Shahada, Dist. Nandurbar                             ..PETITIONER

       VERSUS

Maharashtra Jeevan Pradhikaran,
CIDCO Bhavan, South Block,
Belapur, New Bombay 400 614,
Through its Chief Administrative Officer             ..RESPONDENT


Mr Ajay S. Deshpande, Advocate for the petitioner;
Mr D.P. Bakshi, AGP for respondent


                         CORAM : RAVINDRA V. GHUGE &
                                 S.G. MEHARE, JJ.

DATE : 5th August, 2021

ORAL JUDGMENT (Per Ravindra V. Ghuge, J.)

1. Rule. Rule is made returnable forthwith and heard finally by the

consent of the parties.

2. On 23.10.2020, while issuing notice, we have passed the

following order:-

"1. The learned counsel for the petitioner submits that the petitioner was never appointed from the reserved category. The said fact is also communicated by the petitioner to respondent No.1 on 06.08.2012 and thereafter, the matter was closed.

2. The petitioner was placed on the supernumerary post under the impugned communication. The petitioner shall place on record the original appointment order so also the promotional order before the next date.

3. Issue notice to respondent, returnable on 15.01.2021.

4. Till then, the impugned communication shall not be acted upon."

3. The petitioner has put-forth prayer clause (B) as under:-

"The impugned order dated 30.9.2020 at Exh. 'E' may kindly be quashed and set aside, by directing the respondent to continue the petitioner in service as before."

4. We have considered the extensive submissions of the learned

Advocates for the respective sides. A short issue is raised before us.

The respondent mandates the petitioner to submit his Scheduled Tribe

validity certificate and as the petitioner has not produced such a

certificate, his appointment is placed on a supernumerary post vide the

impugned communication.

5. We have perused the appointment order of the petitioner. The

respondent is unable to point out from the record that the post which

was sought to be filled in, was reserved for a Backward Scheduled

Tribe category. The advertisement does not indicate that the post was

subjected to such reservation. The petitioner never applied for the said

post on the basis of his Scheduled Tribe or that he was selected to join

the post which was reserved for a Scheduled Tribe category. On all

these issues, the respondent, on the basis of the record, concedes that

the petitioner had never applied for such a post and that he was

treated as an open candidate and was selected and appointed from

the open category. The learned Counsel, however, adds that in the

service-book, the name of the tribe of the petitioner has been

mentioned and, therefore, the respondent demands that he should

submit his Scheduled Tribe validity certificate.

6. We find that the stand taken by the respondent is misconceived.

It is well settled that, in cases of employees and students who have

secured employment or admission, as the case may be, on the basis

of a Backward caste or tribe to which they belong, the employer or the

educational institution forwards their claims to the Caste/Tribe Validity

Committee in order to enable a proper inquiry under the 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, 2001. Such employee or such admission is continued,

provided such candidate succeeds in obtaining the validity certificate

from the competent committee. It is equally settled that in cases

wherein a candidate has been appointed in employment or admitted in

an educational institution from the open category, notwithstanding that

he belongs to any backward caste or tribe, neither is his proposal

forwarded for validation, nor his such validation mandated.

7. The learned Advocate for the petitioner makes a categoric

statement on instructions that the petitioner has not availed of any

service benefit which could be available to him based on his social

status (reserved tribe/category). In the event any such occasion in his

service occurs wherein he is able to take advantage of such

reservation, he would first tender his tribe validity certificate and only

thereafter he would pray for such a benefit.

8. In view of the above, this petition is allowed in terms of prayer

clause (B).

9. Rule is made absolute accordingly. No order as to costs.

  ( S.G. MEHARE, J. )                 ( RAVINDRA V. GHUGE, J. )

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