Leela Dineshsingh Chauhan vs The State Of Maharashtra And 6 Ors
2021 Latest Caselaw 15189 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           ORDINARY ORIGINAL CIVIL JURISDICTION

                WRIT PETITION (L) NO. 10702 OF 2021

      Leela Dineshsingh Chauhan
      Age 54 yrs., Occu. Asst. Professor,
      Residing at 302, Poonam Kripa,
      Poonam Nagar, Andheri (East),
      Mumbai 400 093.                                     ... Petitioner

             Versus

1.    The State of Maharashtra

2.    The Principal, Sathye College,
      having address at Sathaye College,
      Dixit Road, Vile Parle (East),
      Mumbai - 400 057.

3.    Parle Tilak Vidyalay Association
      having address at Sathaye College,
      Dixit Road, Vile Parle (East), Mumbai 57.

4.    The Officer of Tahsildar, Ausa, Dist. Latur

5.    University of Mumbai, Thru the Registrar,
      having office at Fort, Mumbai 400 023.

6.    The Principal Secretary,
      Social Justice and Special Assistance Dept.,
      Hutatma Rajguru Chowk,
      Mantralaya Annex Bldg., Mumbai 32.

7.    The Joint Director of Higher and Technical
      Education, having address at Elphinstone
      Technical Institution, Dhobi Talao, Mumbai.        ... Respondents
                                ******
Mr. Mihir Desai, Senior Counsel with Ms. Priyanka Karnik i/b Mr. Sandeep
Karnik for the Petitioner.
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Ms. Uma Palsuledesai, AGP for the State-Respondent No.1.
Mr. Aniruddha Joshi, with Ms. Sarika Mehra i/b. M/s. L.J. Law for
Respondent Nos.2 and 3.
                                ******
                               CORAM: R. D. DHANUKA AND
                                      R. I. CHAGLA, JJ.

ORDER RESERVED DATE : 2nd SEPTEMBER, 2021 ORDER PRONOUNCED DATE : 22nd OCTOBER, 2021

JUDGMENT (Per R.D. DHANUKA, J.) :-

. Rule. Respondents waive service. By consent of the parties, Petition

is heard finally.

2. By this Writ Petition filed under Article 226 of the Constitution of

India, the Petitioner seeks writ of mandamus directing the Respondent

Nos.2 and 3 to continue to employ the Petitioner as full time Assistant

Professor and not to act upon the letter dated 11th February, 2021, to pay

wages of the Petitioner and to give selection grade to the Petitioner w.e.f. 1st

September, 2005 till date with payment of arrears. The Petitioner has also

prayed for quashing and setting aside the termination letter dated 8th June,

2021 issued by the Respondent Nos.2 and 3. By consent of the parties, the

Writ Petition is heard finally. Some of the relevant facts for deciding the

Writ Petition are as under:-

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3. During the period between 1992-94, the Petitioner was working in

Sathaye Junior College run by Respondent No.3. Some time in the month of

August, 1994, the Petitioner appeared for interview pursuant to an

advertisement for the post of lecturer issued by Respondent No.2 College.

She was appointed on the said post by Respondent No.2 w.e.f. September,

1994. On 24th November, 1995, the said appointment of the Petitioner on

the said post of lecturer was approved by the University of Mumbai on

probation for a period of two years. Vide letter dated 19th November, 1996,

the Petitioner was confirmed for the said post, however, w.e.f. 30th August,

1996. The Petitioner was placed in lecturer senior scale vide letter dated

14th September, 2006 but w.e.f. 1st September, 1999.

4. Prior to the date of Petitioner's joining with the Respondent No.2

College for the said post of lecturer, the Petitioner was married to one Mr.

Dineshsingh Manoharsingh Chauhan on 12th July, 1993 who belonged to

Nomadic Tribe (for short "NT"). The Respondent No.4 issued a couple

certificate dated 15th April, 1994 on the basis of the document submitted by

the Petitioner such as marriage certificate and caste certificate of husband.

The Petitioner herself does not belong to NT. The post was advertised for

reserved NT category. On 18th March, 1970, the Government of jsn

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Maharashtra issued a Government Resolution directing that if the husband

belongs to a denotified tribe / NT and his wife does not belong to a

denotified tribe / NT all concessions admissible to denotified tribe / NT

would be admissible to the couple. If the progeny claims to be belonged to

the community of the father, all concessions admissible to the denotified

tribe / NT would be admissible to the progeny.

5. It is provided that if the progeny claims to belong to the community

of the mother, no concession would be admissible. Further it was provided

that if the husband belongs to a non denotified tribe/ NT and wife belong to

a denotified tribe/ NT, no concessions would be admissible to the couple.

Similarly, no concessions would be admissible to the progeny. It is the case

of the Petitioner that in view of the said Government Resolution dated 18th

March, 1970 and as the husband of the Petitioner who belongs to NT, the

Petitioner became entitled to all concessions admissible to the couple in

view of the said GR. Based on the said GR, the Petitioner was granted the

said employment for the post of lecturer which was for NT category.

6. On 27th January, 1976, the State Government issued a circular

holding that while such a non backward candidate would not be entitled to jsn

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caste certificate, she will be entitled to all the concessions. On 4th January,

1996, the Hon'ble Supreme Court delivered a judgment in case of

Valsamma Paul (Mrs.) Vs. Cochin University and Ors. (1996) 3 Supreme

Court Cases 545 holding that open category person is not entitled for

benefit of reservation upon marriage with the person belonging to reserved

category. The Petitioner was confirmed in the said post of lecturer after the

said judgment of the Hon'ble Supreme Court in case of Valsamma Paul

(Supra) but w.e.f. 30th August, 1996. On 7th May, 1999, the State

Government issued a GR superseding earlier resolutions by which the

benefit of reservation granted to open category candidates upon a marriage

to a reserved category person.

7. In the year 2000, the Maharashtra Scheduled Castes, Scheduled

Tribes, De-Notified Tribes (Vimukta Jatis), 2000 was enacted to provide

caste certificates to the persons belonging to the Scheduled Castes,

Scheduled Tribes, De-Notified Tribes (Vimukta Jatis) Nomadic Tribes,

Other Backward Classes and Special Backward Category ("the said Act")

and for matters connected therewith or incidental thereto. The said Act

received the assent of the President on the 16th May, 2001 which was first

published in Government Gazette, extraordinary Part IV on 23rd May, 2001. jsn

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The said Act come into force by Government Notification dated 17th

October, 2001 w.e.f. 18th October, 2001.

8. Some time in the year 2001, the Maharashtra State Public Services

Reservation Act came to be passed which was brought into effect in 2004.

Under the said Act, only the reserved candidates would be appointed on the

reserved post and all other appointments made thereon would be invalid.

Section 15 of the said Act, however, provided that the said provision will

not apply where selection procedure had already begun and appointment

already made.

9. Some time in the year 2003, this Court in the case of Vandana

Vishwanath Londhe Vs. The State of Maharashtra & Ors. in Writ Petition

No.3583 of 2003, allowed the Petitioner to continue in services despite

having been appointed on the basis of couple certificate since she was

appointed prior to the judgment delivered in the case of Valsamma

Paul(Supra). Some time in the year 2004, this Court in case of Fatima

Sadavarte in Writ Petition No.8212 of 2004 allowed the Petitioner therein

to continue in services despite having been appointed on the basis of couple

certificate since she was appointed prior to the judgment of Supreme Court jsn

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in the case of Valsamma Paul (Supra). On 29th December, 2008, the Social

Justice Department addressed a letter to Caste Scrutiny Committee in

respect of another teacher to the effect that benefits on the basis of couple

certificate cannot be availed after 7th May, 1999 but earlier benefits cannot

be withdrawn.

10. Since, April, 2013 onwards, the Petitioner exchanged correspondence

with the college concerning Caste Validity Certificate. On 30th April, 2013,

the Petitioner submitted a reply to the college that since, she did not belong

to NT Category, neither does she have a caste certificate nor a Caste Validity

Certificate. On 18th May, 2013, the State Government issued a GR for strict

implementation of the caste certificate and Caste Validity Certificate. On 4th

May, 2017, this Court delivered a judgment in the case of Nilima Waidande

who was appointed prior to the date of delivering judgment by Supreme

Court in the case of Valsamma Paul (Supra).

11. On 11th February, 2021, the Respondent No.2 sent a letter expressing

to terminate the services of the Petitioner. On 17th February, 2021 and 18th

February, 2021, the Petitioner sent reply to the said letter dated 11th jsn

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February, 2021. On 23rd April, 2021, the Petitioner filed this Petition

apprehending termination on the basis of letter dated 11th February, 2021.

12. On 4th May, 2021, this Court directed the Respondent No.2 to give

three weeks advance notice to the Petitioner in case any action is taken

against the Petitioner. On 8th June, 2021, the Respondent No.2 terminated

the services of the Petitioner for non submission of the Caste Validity

Certificate. The said letter of termination was effective from 30th June,

2021. This Court has granted ad-interim stay to the said letter of termination

which is extended from time to time during the pendency of this Petition.

13. Mr. Mihir Desai, learned Senior Counsel for the Petitioner invited our

attention to various documents annexed to the Writ Petition. He submits that

from 1958, the benefits of reservation were available to an open category

person married to a reserved category person under GR issued by the State

Government. The Petitioner belonged to open category and had married to a

NT category person in the year 1993 and had obtained "couple certificate"

in year 1994, prior to the selection of the Petitioner on the post of lecturer.

On 1st September, 1994, the Petitioner had joined the Respondent No.2

against a reserved post through prescribed procedure as an Assistant jsn

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Professor. He submits that it is not the case of the Petitioner that even at that

time she was entitled to personal caste certificate or caste validity certificate

which was available only to the person who belonged to the reserved

category and not to those who are entitled to concessions of a reserved

category, but do not themselves belong to reserved category.

14. Learned Senior Counsel for the Petitioner invited our attention to the

case of Valsamma Paul (Supra) and would submit that only for the first

time by the said judgment, it was decided that open category candidates

could not avail benefits of reservation by marriages. After relying upon the

judgment of the Hon'ble Supreme Court in case of Valsamma Paul (Supra)

the Government of Maharashtra issued a GR in the year 1999 thereby

superseding the earlier GRs extending benefits of reservation by marriage.

15. It is submitted that the said GR issued by the State Government in the

year 1999 was applicable with prospective effect. He relied upon various

judgments of this Court where this Court has granted permission to those

persons who were appointed based on couple certificate prior to the decision

of Supreme Court in the case of Valsamma Paul (Supra). He submits that

all these judgments of this Court delivered after adverting to the judgment jsn

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of the Hon'ble Supreme Court in the case of Valsamma Paul (Supra) apply

to the facts of this case. The Petitioner is similarly situated and thus those

judgments would squarely apply to the facts of this case. Even the 2004 Act

protects those who are already in service without a valid caste certificate.

The Petitioner is thus entitled to protection of her services as extended to

others. The Petitioner has at no stage hidden or suppressed her caste status.

16. It is submitted by learned Senior Counsel for the Petitioner that the

State Government and consequently the college cannot after a long period

of time deny the Petitioner of her benefits. The State Government as well as

Respondent No.2 college are estopped from taking action against the

Petitioner 26 years after her appointment. The State Government could not

have insisted that the Petitioner go before the Caste Scrutiny Committee and

obtain Caste Validity Certificate which are issued to persons who claim to

belong to reserved category. The Petitioner had never claimed to belong to

the reserved category. He submits that the Petitioner is entitled to all

benefits including higher pay scale etc. which are consequential to her

initial appointment and not claimed on the basis of reservation. He submits

that Respondent No.2 thus could not have terminated the services of the jsn

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Petitioner illegally on the ground that the Petitioner has not submitted a

caste validity certificate.

17. The learned Senior Counsel for the Petitioner invited our attention to

the judgment of the Hon'ble Supreme Court in the case of Chairman and

Managing Director, Food Corporation of India Vs. Jagdish Balaram

Bahira (2017) 8 SCC 670 and would submit that the Hon'ble Supreme

Court in the said judgment after adverting to its judgment in the case of

Madhuri Patil Vs. Additional Commissioner / Tribal Development & Ors.

1994 (6) SCC 241 as well as the said Act held that a person who gets

appointment or admission on the basis of a false caste certificate is liable for

termination of his services and also cancellation of degree. He submits that

the said judgment would not apply to the facts of this case. It is submitted

that it is not the case of the Respondents that the Petitioner has obtained any

false caste certificate and consequently an employment. He submits that the

Petitioner was appointed on the said post on the basis of the Government

Resolution then in force and after following procedure. It is submitted that

the said judgment of the Hon'ble Supreme Court deals only with cases of

caste certificates that required validity through Caste Scrutiny Committee. jsn

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The said judgment would apply only to those persons who claim to belong

to a reserved category.

18. It is submitted by the learned Senior Counsel for the Petitioner that

the Petitioner has been working on the said post since 1994 i.e. even prior to

the date the Hon'ble Supreme Court delivered the said judgment in the case

of Madhuri Patil (Supra) on the basis of the then existing Government

Resolution. Further, the Petitioner acquired vested rights to the said post

even before the Hon'ble Supreme Court in the case of Valsamma Paul

(Supra) was delivered. The Respondents are bound by the promissory

estoppel and ought to be estopped from taking any steps at this stage which

are detrimental to the interest of the Petitioner.

19. Learned Senior Counsel for the Petitioner placed reliance on the

judgment of the Hon'ble Supreme Court in case of N.E. Horo Vs. Smt.

Jahanara Jaipal Singh, (1972) 1 SCC 771 and more particularly on

paragraphs 6 and 25 and would submit that it is held by the Hon'ble

Supreme Court that, where a non-Munda woman is married to a Munda

male and the marriage is approved and sanctioned by the Parha Panchayat

of that tribe and the marriage is valid she may not on the assumption that the jsn

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rule of endogamy prevails, become a member of the Munda tribe in the

strict sense as not having been born in the tribe. She cannot however, be

excluded from the larger group, namely the tribal community. When the

Petitioner applied for the said employment, on the basis of the Government

Resolution prevailing on the date of such employment, the Petitioner was

already issued couple certificate and was entitled to all the benefits which

her husband was entitled to being of the NT class. He submits that only by

GR dated 7th May, 1999, the earlier resolutions granting such benefits are

superseded.

20. Learned Senior Counsel for the Petitioner invited our attention to the

definition of "caste certificate" under Section 2(a) of the said Act and also

Section 3 thereof. He invited our attention to Section 6, Sections 10 and 11

of the said Act and would submit that since the Petitioner never claimed to

belong to NT category, the question of the Petitioner obtaining any caste

certificate of NT category or any caste validity certificate by invoking the

provisions of the said Act did not arise. Learned Senior Counsel for the

Petitioner submits that under Section 10 of the said Act Petitioner cannot be

discharged from the said employment obtained prior to 1999. The

Respondent No.2, therefore, directly or indirectly could not invoke Section jsn

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10 of the said Act for terminating the services of the Petitioner on the

ground that the Petitioner has failed to produce the caste validity certificate.

21. It is submitted that the Petitioner had not made any claim for

employment on the basis of any false caste certificate or false caste validity

certificate. He submits that Section 11 of the said Act which provides for

offences and penalties also would not be attracted to the facts of this case,

since the Petitioner had not obtained false caste certificate by furnishing

false information or filing false statement or documents or by any other

fraudulent means or otherwise. He submits that it is not even the case of the

Respondents that the Petitioner had obtained false caste certificate by

furnishing false information or filing false statement or documents or by any

other fraudulent means or otherwise.

22. Learned Senior Counsel for the Petitioner invited our attention to the

MPSC Reservation under Section 4 of the said Act, 2001 and would submit

that, the said Act, 2001 also would not apply to the case of the Petitioner.

The Petitioner was already appointed to the said post of lecturer much prior

to the enactment of the said Act, 2001 which had received assent of the

Governor on the 20th May, 2004. Learned Senior Counsel for the Petitioner jsn

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invited our attention to Section 11 of the said Act, 2001 and would submit

that the said provision which provides that no appointments made in

contravention of the provisions of this Act shall be void also would not

apply to the case of the Petitioner. The appointment of the Petitioner is not

made to the post reserved for reserved category after the enactment of the

said Act. The Petitioner having been appointed in the year 1994, thus cannot

loose the employment of 26 years on the basis of the subsequent

Government Resolution issued subsequent to the judgment of the Hon'ble

Supreme Court in case of Valsamma Paul (Supra).

23. Learned Senior Counsel for the Petitioner placed reliance on the

judgment delivered by Division Bench of this Court in the case of Hemlata

Milind Bacchav Vs. State of Maharashtra & Ors., 2008 (3) Mh.L.J. 739

and would submit that after adverting to the judgments of the Hon'ble

Supreme Court in the case of Valsamma Paul(Supra), this Court in the said

judgment referred to another judgment of the Division Bench of this Court

in Vandana Londhe (Supra). In the said judgment, the services of the

Petitioner therein were terminated on 30th September, 2002. This Court

held that though the Petitioner therein is not entitled to benefits of

reservation conferred upon Thakur community by virtue of her birth, since jsn

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she was appointed in March, 1995 and had put in seven years of service

without any suppression of material facts, the order of termination of her

services was set aside. She was directed to be reinstated with continuity of

services but without back wages and direction that her service record would

show that she would not be entitled to benefit of the reservation in future.

24. It is submitted that the view taken by this Court in the said judgment

of Vandana Londhe (Supra) apply to the facts of this case and is binding on

this Court. He submits that in the said judgment in the case of Hemlata

Milind Bacchav (Supra) since, the Petitioner therein appointed after the

judgment of the Supreme Court in the case of Valsamma Paul (Supra), her

Petition was dismissed by this Court. The said judgment in the case of

Hemlata Milind Bacchav (Supra) would not apply to the facts of this case.

25. It is submitted by the learned Senior Counsel for the Petitioner that

since the rights were created in favour of the Petitioner prior to the

judgment of the Supreme Court in the case of Valsamma Paul (Supra), such

rights accrued in favour of the Petitioner are protected. He submits that this

Court has ample power to grant protection on the basis of rights already

accrued in favour of the Petitioner prior to the GR dated 7th May, 1999 and jsn

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before pronouncement of judgment by the Hon'ble Supreme Court in

Valsamma Paul (Supra).

26. It is submitted by the learned Senior Counsel for the Petitioner that it

is not the case of the Petitioner that the judgment of the Hon'ble Supreme

Court in the case of Valsamma Paul (Supra) or the judgment in case of

Food Corporation of India (Supra) would apply with prospective effect. He

submits that the High Court has ample power to grant limited protection by

exercising an extraordinary jurisdiction. He submits that it is not the case of

the Respondents that the Petitioner had obtained any caste validity

certificate fraudulently. He relied upon various paragraphs from the

judgment of the Hon'ble Supreme Court in the case of Golak Nath Vs.

State of Punjab, AIR 1967 SC 1643 and would submit that ordinarily an

interpretation will apply retrospectively.

27. It is submitted that the Valsamma Paul (Supra) case lays down that

the reservation entitlement cannot be claimed through marriage would also

be true of those who obtained the benefit of such reservation before

Valsamma Paul (Supra) was decided i.e. applicable to the cases like the

Petitioner. In order to ensure that past transactions / benefits are not affected jsn

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Supreme Court in case Golaknath (Supra), prescribed the doctrine of

prospective overruling namely a declaration by the Court. The interpretation

given to a law will be only applicable to future cases and not affect past

cases. Two conditions are provided by the Hon'ble Supreme Court i.e. (i)

any such declaration has to be specifically directed by the Court in the given

case and (ii) such a declaration can only be given by Supreme Court.

28. It is submitted that though the Supreme Court in case of Valsamma

Paul (Supra) has held that the reservation benefits cannot be claimed

through marriage, it is not the claim of the Petitioner for any future benefits

of reservation due to marriage. The Petitioner only prays that her services be

protected with all consequential benefits minus any future benefits arising

from reservation. He submits that the Hon'ble Supreme Court in Valsamma

Paul (Supra) has not directed that everyone who has been appointed on

reserved post on the basis of marriage should be removed or that their

benefits be taken away. The Petitioner cannot claim that she is entitled to

any further benefits arising out of reservation.

29. It is submitted by the learned Senior Counsel for the Petitioner that in

several cases where despite a Supreme Court judgment not stating that it jsn

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operates prospectively, the High Courts modulated the relief to protect past

beneficiaries and the Supreme Court has upheld this. He relied upon the

case of ESIC V. Jardine Henderson Staff Association, (2006) 6 SCC 581

and would submit that though the prospective overruling generally cannot

be done by the High Courts, the said Courts under Article 226 of the

Constitution of India has equitable jurisdiction and can always mould reliefs

so as to prevent injustice. In support of this submission the learned Senior

Counsel also placed reliance on the judgment of the Hon'ble Supreme Court

in the case of P.V. George V. State of Kerala, (2007) 3 SCC 557.

30. Learned Senior Counsel for the Petitioner submits that the issue

concerning reservation on marriage came up for the first time before the

Hon'ble Supreme Court in the case of N.E. Horo (Supra) , where the

Supreme Court allowed the reservation on marriage. The question was right

of a forward caste candidate to contest a tribal reserved seat on marriage and

this was upheld under certain conditions. The Supreme Court held that

while in that case dealt with a specific aspect of marriage and conversion

the Court did not hold that reservation can never be granted on marriage.

The judgment of Hon'ble Supreme Court in the case of Valsamma Paul jsn

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(Supra) also were delivered by the two Judges Bench and thus cannot

overrule the judgment in case of N.E. Horo (Supra).

31. It is submitted that only in case of Sobha Hymavathi Devi Vs. Setti

Gangadhara Swamy & Ors., (2005) 2 SCC 244 a three Judge Bench

specifically upheld Valsamma Paul (Supra) and overruled the judgment in

the case of N.E. Hora (Supra) and further held that the purpose of

reservation under Articles 15(4) and 16(4) on the one hand, and Articles 330

and 332 were the same. He submits that till 2005, there were two judgments

operating in the field one saying reservation on marriage can be granted

under certain circumstances and the other saying it cannot be granted. The

appointment of the Petitioner was made at the time when the Government

Resolution existed which permitted such appointments.

32. It is submitted by the learned Senior Counsel for the Petitioner that,

the judgment in the case of Food Corporation of India (Supra) which was

delivered on the basis of the earlier judgment in the case of Madhuri Patil

(Supra) as well as after considering the provisions of the said Act has no

application in the facts of this case. It is submitted that the said judgment in

case of Food Corporation of India(Supra) deals only with caste certificates jsn

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which require validity through caste scrutiny committee constituted under

the provisions of the said Act. The judgment in the case of Madhuri Patil

(Supra) and Food Corporation of India (Supra) apply to persons who claim

to belong to a reserved category. The present Petition deals not with the

caste certificate but the couple certificate based on the law prevailing at the

time when the certificate was issued. He submits that the judgments in the

case of Food Corporation of India (Supra) and Madhuri Patil (Supra)

apply to the cases where the caste certificate was false even when it was

initially procured. However, in this case it is not the case of the Respondents

that the Petitioner had obtained any caste certificate till today.

33. It is submitted by the learned Senior Counsel for the Petitioner that

the Petitioner has been working on the post since 1994 i.e. prior to the

judgment of Hon'ble Supreme Court in the case of Madhuri Patil (Supra)

on the basis of Government Resolution than existing. The Petitioner

acquired vested rights to the post even before Valsamma Paul (Supra)

judgment has been delivered. The Respondents thus cannot be allowed to

take any steps at this stage which are detrimental to the interest of the

Petitioner.

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34. It is submitted by learned Senior Counsel for the Petitioner that

though the Hon'ble Supreme Court in the case of Kesavananda Bharati Vs.

State of Kerala, (1973) 4 SCC 225 has overruled the judgment in case of

Golak Nath (Supra) but not on the issue of prospective overruling. Learned

Senior Counsel for the Petitioner placed reliance on the judgment in the

case of K. Madhava Reddy & Ors. Vs. State of Andhra Pradesh & Ors.,

(2014) 6 SCC 537 and in particular paragraphs 10, 11, 18 and 19 on the

issue of prospective overruling.

35. The learned Senior Counsel for the Petitioner placed reliance on the

judgment of Kerala High Court in the case of Cherthala Agri. R.D. Bank &

Ors. Vs. Joint Registrar & Ors., 1999 SCC Online Ker 434 and in

particular paragraphs 11, 13, 17, 19, 22 and 23 in support of his submission

that High Court has power to mould relief under equated jurisdiction. He

submits that though the High Court cannot say that the Petitioner can

continue to claim a benefit of reservation by holding that the judgment of

the Hon'ble Supreme Court in case of Valsamma Paul (Supra) applies with

prospective effect, however, has ample power to mould the relief by

exercising the equated jurisdiction. He submits that during the period jsn

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between 1959 - 1966, large number of persons were appointed and their

appointments cannot be declared invalidated with retrospective effect.

36. Mr. Aniruddha Joshi, learned Counsel for the Respondent Nos.2 and 3

submits that there is no dispute that the Petitioner by birth belongs to the

open category. On 12th July, 1993, the Petitioner married with Mr. Dinesh

Singh Chauhan. The Petitioner had received the couple certificate from

Respondent No.4 on the basis of which the Petitioner claimed the benefits

of appointment to the post reserved for the reserved category of VJNT on

15th April, 1994. On 23th April, 1994, the Petitioner was appointed as full

time professor in Botany against the post which was advertised for reserved

category. The Petitioner was later confirmed on the said post on 19th

November, 1996 with effect from 30th August, 1996. Since the Petitioner

did not produce the caste validity certificate, the services of the Petitioner

were terminated by the Respondent Nos.2 and 3 vide letter dated 8th June,

2021.

37. Learned Counsel for the Respondent Nos.2 and 3 vehemently placed

reliance on the judgment of the Supreme Court in the case of Valsamma

Paul (Supra) and in particular paragraphs 33 and 34 and would submit that, jsn

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the sole basis of marriage to claim the post reserved for reserved category is

impermissible in law. He submits that the Hon'ble Supreme Court in the

said judgment has held that the acquisition of status of scheduled caste etc.

by voluntary mobility into these categories would play fraud on the

constitution. He submits that the factum of claiming benefit of reserved post

based on marriage itself is construed to be fraud on constitution by the

Supreme Court in the said judgment.

38. It is submitted that the said judgment in case of Valsamma Paul

(Supra) has been followed in several later judgments i.e. in case of State of

Tripura & Ors Vs. Namita Mazumdar, 1998 (9) SCC 217, Sobha

Hymavathi (Supra) and Sandhya Thakur Vs. Vimla Devi Kushwa & Ors.,

2005 (2) SCC 244. It is submitted that the reliance placed by the Petitioner

on the Government Resolution issued on 27th January, 1976 to claim such

reservation is completely misplaced. He submits that the Government

Resolution cannot override and cannot be issued contrary to the

constitutional norms or statutory principles. The Government Resolution

cannot confer or create the category of reservation so as to claim the

benefits which are otherwise meant for other candidates. Learned counsel

for the Respondent Nos.2 and 3 placed reliance on the Supreme Court jsn

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judgment in the case of Food Corporation of India (Supra) and in

particular paragraph 65 on this issue.

39. Learned Counsel for the Respondent Nos.2 and 3 placed reliance on

Supreme Court judgment in the case of State of Maharashtra Vs. Milind,

2001 (1) SCC 4 and in particular paragraphs 30 and 31 in support of his

submission that the administrative instructions / circulars cannot override

and cannot be contrary to constitutional norms or statutory principles.

Learned Counsel for Respondent Nos.2 and 3 relied upon the judgment of

the Supreme Court in the case of Chief Regional Officer, Oriental

Insurance Company Ltd. Vs. Pradip and Anr., 2020 (11) SCC 144 and in

particular paragraphs 9 and 16 in support of his submission that the

Government by an executive act cannot override the rules.

40. It is submitted by the learned Counsel for the Respondent Nos.2 and 3

that a Court decides or interprets the particular provisions in effect declares

the law as it stood from the beginning and it was never otherwise and it is

assumed that what the Supreme Court has held is the law from its inception.

He placed reliance on the judgment of the Supreme Court in the case of

M.A. Murthy Vs. State of Karanataka & Ors., 2003 (7) SCC 517 and in jsn

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particular paragraph 8 on the issue of prospective overruling and would

submit that since in the judgment of the Supreme Court in Valsamma Paul

(Supra), it was not indicative that the said judgment would apply with the

prospective effect, the said judgment interpreting the provisions of law

would apply with retrospective effect and prospective effect.

41. It is submitted that the judgment in Valsamma Paul (Supra) is thus

applicable even if the appointment of Petitioner was prior in point of time.

Since the position of law has been interpreted by the Supreme Court so as to

exclude those belonging to the forward caste and yet claiming rights to a

reserved category by marriage from seeking the benefit of reservation, the

said judgment in case of Valsamma Paul (Supra), apply with retrospective

effect. It is submitted that the Petitioner cannot claim any vested rights.

Vested rights can be claimed only in something which is validly done and

legally done or which is otherwise. In support of this submission, the

learned Counsel for the Respondent Nos.2 and 3 placed reliance on the

judgment in the case of Chairman and Managing Director Vs. Jagdish

Balaram Bahira, 2017(8) SCC 670 and in particular paragraphs 48 and 56. jsn

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42. Learned Counsel for the Respondent Nos.2 and 3 placed reliance on

the judgment of the Supreme Court in the case of Ashokkumar Sonkar Vs.

Union of India, 2007 (4) SCC 544 and in particular paragraphs 32, 33, 34,

45 and 68 to 70, in support of his submission that sympathy or equity has no

role in such cases. Appointment can be protected only if it is a irregular

appointment or there is a curable defect in the procedure of appointment. No

such protection can be possible when the appointments are considered as

non-est or void ab-initio more so, amounting to the fraud on constitution.

43. It is submitted by the learned Counsel for the Respondent Nos.2 and 3

that in the judgment of the Supreme Court in case of Madhuri Patil (Supra)

directions were issued to all the States to constitute Caste Scrutiny

Committee and that for every such appointment a claimant has to get their

caste claim for claiming the benefits verified by such committee. The said

judgment was delivered on 2nd September, 1994 and was applicable to the

case of the Petitioner. He submits that subsequently the said Caste

Certificate Act, 2000 was enacted essentially adopting the directions issued

in the judgment of Madhuri Patil (Supra).

44. Learned Counsel for the Respondent Nos.2 and 3 placed reliance on

the judgment in the case of FCI (Supra) and in particular paragraphs 60 to jsn

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62 and would submit that the Supreme Court has clearly held that the caste

certificate would apply to the antecedent facts meaning thereby that all

appointments made even prior to the Caste Certificate Act, 2000 are subject

to the scrutiny by such committee. The entire exercise is for the purpose of

withdrawing the benefits of reservation conferred on the person not

belonging to the reserved category. It is not open for the Petitioner to

contend that though the Petitioner is not belonging to the reserved category,

she can continue the employment once she admits that she does not belong

to the reserved category and has received the benefits without any malafide

or without any fraudulent intent, even then the benefits are required to be

taken away. He submits that termination of the Petitioner is required to be

upheld. Since the said Act applies to the appointments made even prior to

the Act, the date of Valsamma Paul (Supra) judgment and the date of

Petitioner's appointment are irrelevant.

45. It is submitted by the learned Counsel for the Respondent Nos.2 and 3

that, there is no protection of service granted in favour of Petitioner on the

ground of his long tenure of service. He submits that the Supreme Court in

several judgments have refused to grant such protection. The Supreme

Court in the matter of R. Vishwanath Pillai has overruled the judgments in jsn

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the matter of Shalini and Arun Sonone where such benefits were conferred

by this Court and the Supreme Court. The long tenure of services rendered

by the Petitioner is thus irrelevant.

46. Learned Counsel for the Respondent Nos.2 and 3 has placed reliance

on the judgment in the case of Sunita Singh Vs. State of Uttar Pradesh,

2018 (2) SCC 493 and would submit that the Supreme Court in the said

matter has refused to protect the identical claim of the Petitioner in that

matter and did not allow the Petitioners therein to continue in service. It is

submitted that though under Article 142 of the Constitution of India certain

reliefs were granted, it is trite law that what the Supreme Court can do under

Article 142 of the Constitution of India cannot be done under Article 226 of

the Constitution of India. He submits that even otherwise the Supreme

Court in case of Food Corporation of India (Supra) had expressed

reservations to protect such appointments under Article 142 of the

Constitution of India. No protection thus can be granted by this Court in

favour of the Petitioner by exercising powers other than powers under

Article 142 which this Court cannot exercise.

47. The learned Counsel for the Respondent Nos.2 and 3 submits that

though in the case of Milind (Supra) the Supreme Court had granted jsn

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protection in paragraph 38 of the said judgment, the Supreme Court in the

case of Food Corporation of India (Supra) had explained the judgment in

case of Milind (Supra) that the said protection granted by the Supreme

Court was granted by exercising powers under Article 142 of the

Constitution of India and not under Article 141 of the Constitution of India.

48. Learned Counsel distinguished the judgment of the Division Bench of

this Court in Vandana Londhe (Supra) and in case of Fatima Sadavarte

(Supra) and would submit that both these judgments granting protection to

the Petitioner therein are inconsistent with the view taken by the Supreme

Court in the case of Food Corporation of India (Supra) and this cannot be

relied upon as binding precedent. The learned Counsel for the Respondent

Nos.2 and 3 relied upon paragraph nos.11, 13, 16, 171, 22, 24, 43, 44.2, 46,

48, 51, 55, 54, 60, 62, 65, 69 and 71 and would submit that it is clearly held

by the Supreme Court in the said judgment that, Article 142 of the

Constitution of India is not available to the High Court while exercising

power under Article 226 of the Constitution of India.

49. Mr. Desai, learned Senior Counsel for the Petitioner in his rejoinder

argument submits that, the Petitioner was appointed even before the jsn

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pronouncement of judgment of the Supreme Court in Madhuri Patil

(Supra). There was no caste validity certificate prior to the pronouncement

of said judgment in the case of Madhuri Patil (Supra). The SC and ST Act

applies to the persons who claim to belong to the reserve category candidate

and not otherwise. The Petitioner never claimed to belong to reserve

category candidate. None of the provisions of the SC and ST Act, thus apply

to the facts of this case and accordingly, the judgment in the case of Food

Corporation of India (Supra) does not apply.

50. Learned Senior Counsel submits that in case of Milind (Supra), in

paragraph 38, it was clearly held that the appointments which are final shall

not be disturbed. The Petitioner was confirmed even prior to the date of

pronouncement of judgment in the case of Milind (Supra). The case of the

Petitioner is covered by the said judgment in case of Milind (Supra). He

submits that the judgment of Division Bench of this Court in case of

Vandana Londhe (Supra) and in case of Fatima Sadavarte (Supra) apply to

the facts of this case and are binding precedent.

REASONS AND CONCLUSION :-

51. The question that arises for consideration of this Court is (i) whether

the impugned letter of termination dated 8th June 2021 issued by the jsn

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respondent nos.2 and 3 on the ground that the petitioner did not submit

the Caste Validity Certificate based on Government Resolution dated 18 th

May 2013 is valid or not. (ii) whether appointment of the petitioner made

prior to the decision in case of Valsamma Paul (supra) would be protected

as the embargo in Maharashtra happened from 1999 onwards. (iii) Whether

the provisions of the said 2001 Act would be at all attracted to the petitioner

who never claimed any reserve category caste by virtue of her marriage at

any point of time and more particularly when both parties relied upon and

acted upon the then Government Resolution granting benefit of caste of the

spouse. (iv) whether the petitioner had made any false caste claim for the

purpose of getting an employment and whether such caste claim was at any

point of time invalidated as false or fraudulent by any authority at any point

of time or not. (v) whether a person who has never claimed the benefit of

the caste of his or her spouse being a person of reserved category while

seeking an employment on the posts reserved for backward class candidates

based on such marital status on the basis of the Government Resolution in

force at that point of time can be said to have committed fraud on

constitution and would attract Section 10 or 11 of the said Act or not.

52. The petitioner in this case, was admittedly working from 1992 to

1994 in Sathaye Senior College run by the respondent no.3 Management. jsn

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In August 1994 the petitioner attended an interview pursuant to an

advertisement for the post of Lecturer (issued by the respondent no.2

College). The petitioner was given appointment letter for the said post in

September 1994.

53. It is not in dispute that the said appointment was approved by the

University on 24th November 1995 for a period of two years on probation.

The petitioner was subsequently confirmed for the said post vide letter

dated 19th November 1996 but with effect from 30th August 1996. The

petitioner was placed in Lecturer senior scale vide letter dated 14 th

September 2006 but with effect from 1st September 1999.

54. It is the case of the petitioner that the petitioner belongs to open

category and was married to one Mr.Dineshsingh Monoharsingh Chauhan

on 12th July 1993 who belonged to Nomadic Tribe (NT). The respondent

no.4 had issued a couple certificate on 15th April 1994 on the basis of the

documents submitted by the petitioner such as Marriage Certificate and

Caste Certificate of her husband. Admittedly, the said post was advertised

as reserved for NT category.

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55. A perusal of the Certificate dated 15th April 1994 issued by the

Executive Magistrate, Ausa indicates that it was certified that the husband

of the petitioner belonged to 'Rajput Bhamta,' a caste declared as 'Vimukta

Jatis' married with the petitioner who did not belong to any caste declared

as a SC/ST/Vimukta Jati Nomadic Tribe on 2 nd December 1991. It was

certified that this couple as well as their progeny is eligible for the

concession admissible to SC/ST/Vimukta Jati Nomadic Tribe as per the

order issued in Government Resolutions dated 12 th August 1958, 19th

October 1959, 10th May 1966 and 9th August 1971. A perusal of the

Government Resolution dated 12th August 1958 indicates that the

Government of Bombay had extended all concessions to a couple whose

one spouse is 'Harijan' and the other is non Harijan.

56. On 9th August 1971, the Government of Maharashtra issued another

Resolution and provided that if the husband belonging to Denotified

Tribe/Nomadic Tribe and the wife not belonging to a Denotified

Tribe/Nomadic Tribe, if the progeny claims to belong to community of the

father, all concessions would be admissible to Denotified Tribe/Nomadic

Tribe. If the progeny claims belong to the community of mother, no

concession would be admissible. It was further provided that the husband jsn

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belonging to a non-Denotified Tribe/Nomadic Tribe and the wife

belonging to a Denotified Tribe/Nomadic Tribe, no concessions would be

admissible. While issuing the Government Resolution dated 9th August

1971, the State Government adverted to the Government Resolutions dated

12th August 1958, 9th October 1959 and 16th May 1966 granting various

concessions.

57. On 27th January 1976, State of Maharashtra issued a Circular

directing that while such a non BC candidate will not be entitled to caste

certificate, she would be entitled to all the concessions. Based on the

Government Resolutions then in force, the petitioner and her husband were

issued a Couple Certificate by the respondent no.4 on 15 th April 1994.

Appointment of the petitioner to the said post of Lecturer in Sathaye

Senior College which was duly approved by the University initially on

probation on 24th November 1995 and thereafter placing the petitioner for

the post of Lecturer in senior scale vide letter dated 14 th September 2006 but

with effect from 1st September 1999.

58. The Hon'ble Supreme Court in case of N.E. Horo Vs.Smt.

Jahanara Jaipal Singh (1972) 1 SCC 771 had considered the issue whether jsn

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the petitioner could legally acquire the status of a Munda by virtue of her

marriage to late Shri Jaipal Singh and whether she had been accepted as a

member of the Munda Tribe by the said Tribe. It was held by the Hon'ble

Supreme Court that Munda is one of such specified tribes or tribal

communities which has a wider connotation than the expression "tribe".

Where a non- Munda woman is married to a Munda male and the marriage

is approved and sanctioned by the Parha Panchayat of that tribe and the

marriage is valid she may not, on the assumption that the rule of endogamy

prevails, become a member of the Munda tribe in the strict sense as not

having been born in the tribe. She cannot, however, be excluded from the

larger group, namely, the tribal community.

59. In the judgment of High Court which was impugned in the said

proceedings before the Hon'ble Supreme Court, the High Court had taken a

view that the term "tribal communities" in addition to the term "tribes" in

Article 342 shows that a wide import and meaning should be given to these

words and even if the respondent is not a member of the Munda tribe by

virtue of birth she having been married to a Munda after due observance of

all formalities and after obtaining the approval of the elders of the tribes

would belong to the tribal community to which her husband belongs on the jsn

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anology of the wife taking the husband's domicile. The Hon'ble Supreme

Court upheld the said view taken by the High Court by holding that when

a person, in the course of time, has been assimilated in the community it is

somewhat difficult to comprehend how that person can be denied the rights

and privileges which may be conferred on that community even though

tribal by constitutional provisions. It is however, apposite to refer to latter

judgment in case of Sobha Hymavathi Devi Vs. SettiGangadhara Swamy

& Ors., (2005) 2 SCC 244 overruling the earlier judgment of the Hon'ble

Supreme Court in case of N.E. Horo Vs.Smt. Jahanara Jaipal Singh

(supra).

60. The Hon'ble Supreme Court in case of Valsamma Paul (supra) dealt

with the question of harmonising the conflict between the personal law and

the constitutional animation behind Articles 15(4) and 16(4) of the

Constitution. The question before the Hon'ble Supreme Court was

'Whether a candidate, by marriage, adoption or obtaining a false certificate

of social status would be entitled to an identification' as such member of the

class for appointment to a post reserved under Article 16(4) or for an

admission in an educational institution under Article 15(4)?' jsn

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61. It is held that the recognition of the appellant therein as a member of

the Latin Catholic would not, therefore, be relevant for the purpose of her

entitlement to the reservation under Article 16(4), for the reason that she, as

a member of the forward caste, had an advantageous start in life and after

her completing education and becoming major married Yesudas; and so, she

is not entitled to the facility of reservation given to the Latin Catholic, a

backward class. The Full bench of the High Court had concluded that the

appellant was not entitled to the benefit of reservation under Article 16(4) as

a lecturer which post was reserved for the backward class Latin Catholic

community. The Hon'ble Supreme Court confirmed the said judgment

delivered by the Full Bench of Kerala High Court.

62. A three Judge Bench in case of Sobha Hymavathi Devi Vs. Setti

Gangadhara Swamy & Ors. (supra) subsequently confirmed the views

taken by the Hon'ble Supreme Court in case of Valsamma Paul (supra).

63. The Hon'ble Supreme Court in case of Kumari Madhuri Patil &

Anr. Vs. Addl. Commissioner, Tribal Development & Ors. (supra) held

that categories of persons declared as Scheduled Castes, Scheduled Tribes

(Amendment) Act, 1976 and the social status certificate granted therein jsn

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cannot be altered or added except by carrying out amendment in the

Constitution of India. In paragraph 13 of the said judgment, it is held that

the admission wrongly gained or appointment wrongly obtained on the basis

of false social status certificate necessarily has the effect of depriving the

genuine Scheduled Castes or Scheduled Tribes or OBC candidates as

enjoined in the Constitution of the benefits conferred on them by the

Constitution. The genuine candidates are also denied admission to

educational institutions or appointments to office or posts under a State for

want of social status certificate. The ineligible or spurious persons who

falsely gained entry resort to dilatory tactics and create hurdles in

completion of the inquiries by the Scrutiny Committee.

64. The Hon'ble Supreme Court accordingly thought it necessary to

streamline the procedure for the issuance of social status certificates, their

scrutiny and their approval by forming guidelines. One of the guidelines

suggested by the Hon'ble Supreme Court was that in case, the certificate

obtained or social status claimed is found to be false, the

parent/guardian/the candidate should be prosecuted for making false claim.

If the prosecution ends in a conviction and sentence of the accused, it could

be regarded as an offence involving moral turpitude, disqualification for jsn

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elective posts or offices under the State or the Union or elections to any

local body, legislature or Parliament.

65. In paragraph 16 of the said judgment, it is held that a party that seeks

equity, must come with clean hands. He who comes to the court with false

claim, cannot plead equity nor the Court would be justified to exercise

equity jurisdiction in his favour. There is no estoppel as no promise of the

social status is made by the State when a false plea was put forth for the

social status recognised and declared by the Presidential Order under the

Constitution as amended by the SC & ST (Amendment) Act, 1976, which is

later found to be false. It is held that the plea of promissory estoppel or

equity have no application. When it is found to be a case of fraud played by

the concerned, no sympathy and equitable considerations can come to his

rescue nor the plea of estoppel is germane to the beneficial constitutional

concessions and opportunities given to the genuine tribes or castes. Courts

would be circumspect and vary in considering such cases.

66. In the said judgment, the Hon'ble Supreme Court has rendered a

finding of fact that the judicial process was made use of to secure

admission. The appellant continued her studies thereafter pending scrutiny jsn

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of her status certificate. The caste claim was found to be false. The

Hon'ble Supreme Court accordingly directed the Principal to permit the

appellant therein to sit for the final year examination, if she has completed

the course of study as represented before the Hon'ble Supreme Court but

not with the social status as a Scheduled Tribe which was claimed

fraudulently and made her admission with the aid of the Court's order and

continue her studies. The Hon'ble Supreme Court accordingly upheld the

cancellation of the social status of the appellant therein as Mahadeo Koli

fraudulently obtained by student, but was allowed to appear for the final

year examination of MBBS course.

67. It was however made clear that the appellant would not be entitled in

future for any benefits on the basis of the fraudulent social status as

Mahadeo Koli. The Hon'ble Supreme Court made it clear that the said

order should not be treated and used as a precedent in future cases to give

any similar directions since the same defeats constitutional goals. In the said

case, the appellant did not approach the competent officer but had wrongly

gone to an officer who had no jurisdiction. After delivering the said

judgment of the Hon'ble Supreme Court in case of in case of Kumari

Madhuri Patil & Anr. Vs. Addl. Commissioner, Tribal Development & jsn

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Ors. (supra), State Government enacted the Maharashtra Scheduled Castes,

Scheduled Tribes, De-Notified Tribes (Vimukta Jatis) Act, 2000.

68. The Hon'ble Supreme Court in case of Chairman and Managing

Director, Food Corporation of India and Ors. (supra) has considered the

earlier judgment in case of Madhuri Patil (supra) and also some of the

provisions of the said Act. The Hon'ble Supreme Court considered the

cases of the individuals who had sought the benefit of public employment

on the basis of a claim to belong to a beneficiary group which had upon

investigation been found to be invalid. It was considered that despite the

invalidation of the claim to belong to a Scheduled Caste or as the case may

be, Scheduled Tribe or backward community, the intervention of the Court

is invoked in the exercise of the power of judicial review. The basis for the

invocation of jurisdiction lies in an assertion that equities arise upon a lapse

of time and these equities are capable of being protected either by the High

Court (in the exercise of its jurisdiction under Article 226) or by the Hon'ble

Supreme Court (when it discharges the constitutional function of doing

complete justice under Article 142). The Hon'ble Supreme Court

considered the fundamental issue as to whether some equities are

sustainable at law and, if so, the limits that define the jurisdiction of the jsn

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Court to protect individuals who have secured access to the benefit of

reservation in spite of the fact that they do not belong to the caste, tribe or

class for whom reservation is intended.

69. The Hon'ble Supreme Court considered various provisions of the said

Act including Sections 4, 6, 7, 10 and 11 of the said Act. It is held that the

consequences which emanate from the cancellation of a caste certificate are

distinct. The first is the withdrawal of benefits secured on the basis of a

claim to belong to a designated tribe, group or class which has been held to

be invalid. This is of a civil nature by which the applicant is deprived of the

benefits of a false caste certificate which is cancelled by the Scrutiny

Committee. The second consequence is the liability to be subject to a

criminal prosecution. This is a criminal liability arising from an offence

created by the legislature. In decided cases infact the claim for equity is

coupled with a 'voluntary' undertaking that the person would not secure or

claim any future benefits on the basis that he or she belongs to the

Scheduled Caste, Schedule Tribe or socially and educationally backward

class on the basis of which the original appointment or admission was

obtained.

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70. The Hon'ble Supreme Court in paragraph 14 of the said judgment

adverted to the earlier judgment in case of R. Vishwanatha Pillai v/s. State

of Kerala, (2004) 2 SCC 105 which was strongly relied upon by the learned

counsel for the respondents in which it was held by the Hon'ble Supreme

Court that the petitioner therein had obtained the appointment on the basis

of a false caste certificate and thus he could not be considered to be a

person who holds a post within the meaning of Article 311 of the

Constitution of India. The finding recorded by the scrutiny committee that

the appellant got the appointment on the basis of a false caste certificate had

become final. The appellant had usurped the post which should have gone

to a member of the Scheduled Castes.

71. It was held that the appointment was void from its inception. It

cannot be said that the said void appointment would enable the appellant to

claim that he was holding a civil post within the meaning of Article 311 of

the Constitution of India. It was held that as the appellant had obtained the

appointment by playing the fraud, he cannot be allowed to take advantage of

his own fraud in entering the service and claim that he was holder of the

post entitled to be dealt with in terms of Article 311 of the Constitution of

India or the Rules framed thereunder. Where an appointment in a service jsn

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has been acquired by practicing fraud or deceit, such an appointment is no

appointment in law, in service and in such a situation Article 311 of the

Constitution of India is not attracted at all. Similar view has been taken by

the Hon'ble Supreme Court in several judgments adverted by the Hon'ble

Supreme Court in the said case of Chairman and Managing Director,

Food Corporation of India and Ors. (supra). In the matter before the

Hon'ble Supreme Court, the claim of an employee to belong to a reserved

category had been rejected upon scrutiny.

72. In paragraph 48 of the said judgment in case of Chairman and

Managing Director, Food Corporation of India and Ors. (supra), the

Hon'ble Supreme Court after adverting to the judgment in case of Madhuri

Patil (supra) which was delivered on 2nd September, 1994, held that in the

State of Maharashtra, the directions issued by the Hon'ble Supreme Court in

case of Madhuri Patil (supra) received legislative recognition upon the

enactment of Maharashtra Act 23 of 2001 which came into force on State on

18th October, 2001. The Hon'ble Supreme Court in case of Madhuri Patil

(supra), the regime, as it then obtained prior to the enactment of the law,

also envisaged consequences upon a caste or tribe claim being found to be

false upon a verification by the scrutiny committee. The cancellation of the jsn

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certificate would, as a necessary consequence, involve the invalidation of

the appointment to a post or admission to an educational institution.

73. It is held that where a candidate had been appointed to a reserved post

on the basis of the claim that he or she was a member of the group for which

the reservation is intended, the invalidation of the claim to belong to that

group would, as a necessary consequence, render the appointment void ab

initio. It is held that the rationale for this is that a candidate who would

otherwise have to complete for more restricted competition confined to the

reserved category and usurped a benefit meant for a designated caste, tribe

or class. Once it was found that the candidate had obtained admission upon

a false representation to belong to the reserved category, the appointment

would be vitiated by fraud and would be void ab initio.

74. It is held that the withdrawal of benefits, either in terms of the

revocation of employment or the termination of an admission was hence a

necessary corollary of the invalidation of the claim on the basis of which the

appointment or admission was obtained. The withdrawal of the benefit was

not based on mens rea or the intent underlying the assertion of a false claim.

In the case of a criminal prosecution, intent would be necessary. On the jsn

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other hand, the withdrawal of a civil benefits flowed as a logical result of

the invalidation of a claim to belong to a group or category for whom the

reservation is intended. This was the position under regime which prevailed

following the decision in Madhuri Patil (supra).

75. In paragraph 55 of the said judgment, the Hon'ble Supreme Court

considered Sections 10 and 11 of the said Act and held that the invalidation

of a caste certificate may result in two consequences (i) immediate

cancellation or withdrawal of the benefits received by the candidate on the

basis of a false caste certificate (ii) prosecution of a claimant who procures a

certificate which is found to be false by the scrutiny committee. The intent

of a candidate may be of relevance only if there is a prosecution for a

criminal offence. However, where a civil consequence of withdrawing the

benefits which have been accrued on the basis of a false caste claim is in

issue, it would be contrary to the legislative intent to import the requirement

of a dishonest intent. It is held that the legislature has legitimately assumed

that a person who seeks a caste certificate must surely be aware of the caste,

tribe or class to which he or she belongs and must establish the claim. If the

claim to belong to the reserved category is found to be untrue, the caste

certificate has to be cancelled on the ground that it has been obtained jsn

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falsely. The grant of the benefit to the candidate is fraudulent because the

candidate has obtained the benefit reserved exclusively for a specified caste,

tribe or class to which he or she is not entitled.

76. In paragraph 56 of the said judgment, the Hon'ble Supreme Court

held that the selection of ineligible persons is a manifestation of a systemic

failure having a deleterious effect on good governance. The selection of a

person who is not eligible allows someone who is ineligible to gain access

to scarce public resources. The rights of eligible persons are violated, since

the person who is not eligible for the post he is selected. An illegality is

perpetrated by bestowing benefits upon an imposter undeservingly. Those

for whom the constitution has made special provisions are as a result ousted

when an imposter who does not belong to a reserved category is selected.

The fraud on the constitution precisely lies in this. It is held that the Courts

plays a vital institutional role in preserving the rule of law. The judicial

process should not be allowed to be utilized to protect the unscrupulous and

to preserve the benefits which have accrued to an imposter on the specious

plea of equity. Once the legislature has stepped in by enacting Maharashtra

Act 23 of 2001, the power under Article 142 should not be exercised to

defeat legislature prescription.

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77. In paragraph 62 of the said judgment, the Hon'ble Supreme Court

held that where a candidate has secured admission to an educational

institution on the basis that he or she belongs to a designated reserved

category and it is found upon investigation that the claim to belong to that

category is false, admission to the institution necessarily falls with the

invalidation of the caste certificate. The admission being founded on a

claim to belong to a specified caste, tribe or class, it is rendered void upon

the claim being found to be untrue. The same must hold in the case of an

appointment to a post. Therefore, the absence of the words 'before or after

the commencement of this Act' in Section 10 makes no substantive

difference because a withdrawal of benefit is an event which flows naturally

and as a plain consequence of the invalidation of the claim. In that context,

it is held that even prior to the enactment of the State legislation, the benefit

which was secured on the basis of a caste claim was liable to be withdrawn

upon its invalidation. The Act has hence neither affected vested rights nor

has it imposed new burdens. The Act does not impair existing obligations in

Sections 7 and 10.

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78. In paragraph 65 of the said judgment, the Hon'ble Supreme Court

held that the Administrative Circulars and Government Resolutions are

subservient to legislative mandate and cannot be contrary either to

constitutional norms or statutory principles. Where a candidate has obtained

an appointment to a post on the solemn basis that he or she belong to a

designated caste, tribe or class for whom the post is meant and it is found

upon verification by the Scrutiny Committee that the claim is false, the

services of such an individual cannot be protected by taking recourse to

administrative circulars or resolutions. Protection of claims of a usurper is

an act of deviance to the constitutional scheme as well as to statutory

mandate.

79. It is held that no Government Resolution or Circular can override

constitutional or statutory norms. The principle that the Government is

bound by its own circulars is well settled but it cannot apply in a situation

such as the present. Protecting the services of a candidate who is found not

to belong to the community or tribe for whom the reservation is intended

substantially encroaches upon legal rights of genuine members of the

reserved communities whose just entitlements are negated by the grant of a

seat to an ineligible person. In such a situation where the rights of genuine jsn

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members of reserved groups or communities are liable to be affected

detrimentally, Government Circulars or Resolutions cannot operate to their

detriment.

80. In paragraph 69 of the said judgment, the Hon'ble Supreme Court

clarified that the directions issued by the Constitution Bench in para 38 of

the decision in case of State of Maharashtra v/s. Milind (supra) were in

pursuance of the powers vested in the Supreme Court under Article 142 of

the Constitution of India. Since, the decision of the Supreme Court in case

of Madhuri Patil (supra) which was rendered on 2nd September, 1994, the

regime which held the field in pursuance of those directions envisaged a

detailed procedure for issuance of caste certificates, scrutiny and

verification of caste and tribe claims, cancellation and confiscation of the

caste certificate, etc and withdrawal of the benefits in terms of the

termination of an appointment, cancellation of an admission to an

educational institution or disqualification from an electoral office obtained

on the basis that the candidate belongs to a reserved category and

prosecution for a criminal offence.

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81. It is held by the Supreme Court that withdrawal of benefits secured

on the basis of a caste claim which has been found to be false and is

invalidated is a necessary consequence which flows from the invalidation of

the caste claim and no issue of retrospectivity would arise. Mens rea is an

ingredient of the penal provisions contained in Section 11. Section 11 is

prospective and would apply in those situations where the act constituting

the offence has taken place after the date of its enforcement.

82. In paragraphs 71 to 114 of the said judgment, the Hon'ble Supreme

Court after laying down the principles of law in the earlier paragraphs

considered the facts of individual cases of the parties before the Hon'ble

Supreme Court in the said judgment and held that the applicants had

fraudulently obtained caste certificates, which were invalidated by the Caste

Scrutiny Committee. Each of those applicants had made a false caste claim

and had applied for validation of those claims which were found to be false

and fraudulent.

83. Section2(a) of the said Act defines "Caste Certificate" means the

certificate issued by the Competent Authority to an applicant indicating

therein a particular caste described in the said definition as the case may jsn

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be, to which the applicant belongs. "Nomadic Tribes" is defined under

section 2(g). The "Scheduled Castes" and "Scheduled Tribe" are defined

under section 2(j) of the said Act. Under section 3, an application for caste

certificate has to be made by any person belonging to reserved category

mentioned therein in order to claim the benefit of any reservation provided

to such castes, tribes or classes either in any public employment or for

admission into any educational institution, or any other benefit under any

special provisions made under clause 4 of Article 15 of the Constitution of

India or for other purposes prescribed in the said provision, such application

has to be made in such form and in such a manner as may be prescribed to

the Competent Authority for issuance of a caste certificate.

84. Under section 4 of the said Act, the Competent Authority is

empowered to issue caste certificate on such application made to it under

section 3 after satisfying itself about the genuineness of the claim and

following procedure as prescribed within such time and in such form as

may be prescribed or to reject the application for reasons to be recorded in

writing. Caste certificate issued by the "Competent Authority" shall be valid

only subject to verification and grant of validity of certificate by the

Scrutiny Committee.

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85. Under section 7 of the said Act if, before or after commencement of

the said SC/ ST Act, a person not belonging to any of the reserved category

caste has obtained a false caste certificate to the effect that either himself or

his children belong to such castes, tribes, or classes, the Scrutiny Committee

is empowered to call for the record and enquire into the correctness of such

certificate suo motu or otherwise and if it is of the opinion that the

certificate was obtained fraudulently, it shall by an order cancel and

confiscate the certificate by following such procedure as prescribed after

giving the person concerned an opportunity of being heard, and

communicate the same to the concerned person and the concerned authority,

if any.

86. Under section 10 of the said Act, if any person not belonging to any

of the reserved category classes secures admission in any of the educational

institution against a seat reserved for such castes, tribes, classes or secures

any appointment in the Government, local authority or in any other

Company or Corporation, owned or controlled by the Government or in any

Government aided institution or Co-operative Society against a post

reserved for such castes, tribes or classes by producing a false caste jsn

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certificate shall, on cancellation of the caste certificate by the Scrutiny

Committee be liable to be debarred from the concerned educational

institution, or as the case may be, discharged from the said employment

forthwith and any other benefits enjoyed or derived by virtue of such

admission or appointment by such person as set out therein shall be

withdrawn forthwith. Civil consequences are provided under section 10(2),

(3) and (4). Section 11 provides for offences and penalty against a person

who obtains a false caste certificate by furnishing false information or filing

false statements or by any other fraudulent means.

87. Rule 2 (c) defines "applicant" means a person who makes an

application for obtaining a caste certificate or for verification of such cast

certificate. Rule 4 provides for procedure for obtaining caste certificate from

the Competent Authority by a person who claims to be belonging to any of

the reserved castes and desires to have a caste certificate. Rule 5 provides

for procedure to be followed by the Competent Authority for issuance of

caste certificate or rejection of application for caste certificate. Rule 8

provides for duties of the Competent Authority while issuing a caste

certificate.

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88. Rule 14 and 15 provides for verification of the caste certificate and

the manner of filing or submitting the application for verification of the

caste certificate claim. Rule 17 deals with the procedure of the Scrutiny

Committee. Under Rule 19, it is provided that any complaint or allegation

that a person to whom a caste certificate has been issued, is not belonging to

a caste or tribe mentioned in the certificate shall be enquired into by the

concerned Scrutiny Committee.

89. A perusal of the documents annexed to the writ petition and other

pleadings filed by the parties would clearly indicate that the petitioner had

never applied for issuing a caste certificate prior to the said Act came into

force or even thereafter nor had claimed that the petitioner herself had

acquired the reserved category class based on her marriage with her

husband. The respondents on the contrary were insisting the petitioner to

apply for caste validity certificate for continuing the petitioner in the

employment of the respondents.

90. It is not the case of the respondents that the petitioner had at any point

of time represented or had claimed caste of Nomadic Tribes herself by birth

or by virtue of her marriage at any point of time either including at the time jsn

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of seeking employment with the respondents or even thereafter. It is also not

the case of the respondent nos.2 and 3 that the petitioner had produced false

certificate showing the status of reserved caste category or had claimed any

such caste at any point of time. The petitioner was granted employment by

the respondent nos.2 and 3 on the basis of various Government Resolutions

in force at the time of such employment. Not only the petitioner had relied

upon the Government Resolutions and couple certificate issued by the State

Government in favour of the petitioner and her husband based on its

Government Resolutions in force at that point of time but the respondents

also acted upon those Government Resolutions and the said couple

certificate while granting the appointment to the petitioner to the post in

question which was reserved post.

91. The respondents have not disputed that the approval to the said

appointment of the petitioner was granted by the University before the

judgment of the Hon'ble Supreme Court in case of Valsamma Paul (supra)

came to be delivered. No action was initiated by the respondents to

terminate the services of the petitioner immediately after delivery of the

judgment by the Hon'ble Supreme Court in case of Valsamma Paul (supra).

On the contrary, the respondent nos.2 and 3 continued the service of the jsn

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petitioner even after pronouncement of the said judgment by the Hon'ble

Supreme Court in case of Valsamma Paul (supra) till 8th June, 2021.

92. It is the case of the petitioner that by Government Resolution dated 7 th

May, 1999 the Government has withdrawn the benefits which were granted

by virtue of the earlier Government Resolutions. All the institutions

including respondent nos.2 and 3 started verifying the caste certificate and

were seeking caste validity certificate from the person who had been

granted the said benefit or who have availed of the benefits by relying upon

the earlier Government Resolutions. In letter dated 25th September, 2013 to

the Principal of the respondent college, it was clarified by the petitioner that

by birth she belongs to the open category but was married to a person

belonging to Nomadic Tribe.

93. A perusal of the letter dated 17th February, 2021 addressed by the

petitioner to the respondent nos.2 and 3 in response to their letter dated 11 th

February, 2021 asking the petitioner to submit the caste validity certificate,

the petitioner once again had informed those respondents that she belongs to

open category and was married to a person belonging to Nomadic Tribe. It

has come to the knowledge of the petitioner that internally the college had jsn

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sent the caste of the petitioner to appropriate authority for verification but

then subsequently nothing was communicated to her. The respondent nos.2

and 3 had been writing letters to the petitioner asking for verification of

caste certificate. In response thereof the petitioner had made it clear that the

petitioner had applied pursuant to an advertisement for the post of Lecturer

and was given an appointment letter on 17th September, 1994. The approval

came from the University for the appointment on 24th November, 1995 on

probation for two years and she was confirmed in the said post vide letter

dated 19th November, 1996 with effect from 30th August, 1996.

94. The petitioner was also placed in Lecturer senior scale vide letter

dated 14th September, 2006 but with effect from 1 st September, 1999 i.e.

much after the judgment of the Hon'ble Supreme Court in case of

Valsamma Paul (supra) came to be pronounced. In paragraph 12 of the said

letter, the petitioner once again clarified that she belongs to open category

and as per rights available under the Constitution she could not be subjected

to any Rules, Regulations or Law which had come into existence after her

appointment. Her appointment was made in the year 1994 when the said

benefits were extended to the married couples where the spouse (husband)

of the person is from reserved category.

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95. The petitioner vide her letter dated 18th February, 2021 informed the

respondent nos.2 and 3 that according to the letter of the Government dated

21st December, 2008, it was clarified that the couple certificate issued prior

to 1999 is valid and does not require any further validation by any authority.

A copy of the said letter dated 21st December, 2008 was forwarded to the

respondent nos.2 and 3 by the petitioner. The petitioner pointed out that in

this case a couple certificate was issued in the year 1993 and thus the said

certificate was valid and thus the petitioner was not affected by the said

Government Resolution dated 7th May, 1999 annexed at Exhibit - E to the

petition. A perusal of the letter dated 8 th June, 2021 addressed by the

respondent nos.2 and 3 to the petitioner indicates that it was their case that

several employees availing of the benefits under the reserved category were

required to submit their caste validity certificate in accordance with the

provisions of law and Government Resolutions. The petitioner was

requested from time to time to submit the caste validity certificate from the

Caste Scrutiny Committee however, the petitioner had failed to submit the

caste validity certificate.

96. By the said letter, the respondent nos.2 and 3 recorded that since the

petitioner was not in a position to get the caste validity certificate as she jsn

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belonged to open category, her services in the said college could not be

continued and are liable to be terminated as provided in the Government

Resolution dated 18th May, 2013. By the said letter, the respondent nos.2

and 3 gave three weeks notice to the petitioner and made it clear that after

expiry of three weeks, the services of the petitioner would stand terminated.

97. A perusal of the said letter of termination itself clearly indicates that

the respondent nos.2 and 3 were insisting that the petitioner shall get her

caste validated under the provisions of the said Act and had been

threatening to terminate the services of the petitioner if the caste validity

certificate would not be produced by the petitioner. On the other hand, it

was all through out the case of the petitioner that the petitioner admittedly

belonged to open category and thus could not have produced any such caste

validity certificate under the provisions of the said Act. The question of the

petitioner thus committing any fraud on the Constitution or making a false

caste claim for getting an employment in the year 1994 did not arise. It is

not the case of the respondent nos.2 and 3 that the petitioner shall be

deemed to have submitted a false caste claim with retrospective effect and

had deemed to have committed fraud upon the respondent nos.2 and 3 when

the petitioner was appointed to the said post of Lecturer initially. The jsn

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petitioner was appointed to the said post by the respondent nos.2 and 3 and

approved by the University.

98. In our view, the judgment of the Hon'ble Supreme Court in case of

Madhuri Patil (supra), Milind (supra), Valsamma Paul (supra), Chairman

and Managing Director, Food Corporation of India (supra) and the

subsequent judgments following the judgment of the Hon'ble Supreme

Court in Valsamma Paul (supra) would not advance the case of the

respondents in the facts and circumstances of this case for terminating the

services of the petitioner. In our view since the the petitioner belongs to the

open category, the petitioner had rightly not applied for any caste validity

certificate nor could have applied for the such caste validity certificate

under the provisions of the said Act. The judgment of the Hon'ble Supreme

Court in the case of Managing Director, Food Corporation of India

(supra) dealt with the cases where the person who did not belong to the

reserved category had applied for such caste validity certificate fraudulently

and had obtained the benefits. The Hon'ble Supreme Court in the said

judgment after considering the provisions of the said Act had accordingly

held that no such person who did not belong to the said caste could have

applied for caste validity certificate so as to avail of the benefits guaranteed jsn

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under the Constitution of India. The facts before the Hon'ble Supreme Court

in the said judgment were totally different and are distinguishable in the

facts of this case.

99. There is no substance in the submission of the learned counsel for the

respondent nos. 2 and 3 that in this case, the petitioner had committed fraud

on the constitution. It is not the case of the respondent nos. 2 and 3 that the

petitioner had applied for acquiring the status of scheduled caste by

voluntary mobility into those categories or that had claimed the status of the

Nomadic Tribe for the purpose of getting her employment fraudulently. The

petitioner had applied for the said post created by the respondent nos. 2 and

3 not by claiming the benefit of the Nomadic Tribe by birth fraudulently but

was appointed on the basis of the Government Resolutions issued by the

State of Maharashtra from time to time then in force at the time of

appointment of the petitioner.

100. Insofar as the judgment of the Hon'ble Supreme Court in case of

State of Maharashtra v/s. Milind (supra) and in case of Chief Regional

Officer, Oriental Insurance Company Ltd. (supra) relied upon by the

respondent no.2 in support of his submission that the administrative jsn

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instruction/circular cannot override and cannot be contrary to the

constitutional norms or statutory principles is concerned, there is no dispute

about the proposition of law laid down by the Hon'ble Supreme Court in the

said judgment. At the relevant time, the validity of such Government

Resolutions was accepted by the Hon'ble Supreme Court and had force of

law in view of Article 13 of the Constitution of India.

101. Insofar as the principles laid down by the Hon'ble Supreme Court in

case of M.A.Murthy vs. State of Karnataka & Ors. (supra) is concerned,

there is no dispute about the same.

102. Insofar as the judgment of Hon'ble Supreme Court in case of Ashok

Kumar Sonkar vs. Union of India & Ors. (supra) pressed in service by the

learned counsel for the respondent nos. 2 and 3 is concerned, it is held by

the Hon'ble Supreme Court that if the appointment is irregular, the same can

be regularized. The Court may not take serious note of an irregularity

within the meaning of the provisions of the Act. But if an appointment is

illegal, it is non est in the eye of the law, which renders the appointment to

be a nullity. The Hon'ble Supreme Court in that case had rendered a finding

that the appellant did not hold a requisite qualification as on the cut off date jsn

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and therefore was not eligible.

103. In this case on the basis of the Government Resolutions prevailing on

the date of the appointment allowing one spouse to take benefit of the caste

status of his or her spouse was accepted not only by the petitioner but also

by the respondent nos. 2 and 3. The petitioner had never claimed to belong

to the NT category from the birth or at any point of time even till today.

After considering the judgment of the Hon'ble Supreme Court in case of

Valsamma Paul (supra), this Court had protected the employment of such

employees in several matters with safeguard that the petitioner will not

claim the status of such reserved caste during the course of the employment.

The judgment of the Hon'ble Supreme Court in case of Ashok Kumar

Sonkar (supra) thus would not assist the case of the respondent nos. 2 and

3.

104. Insofar as the judgment of Hon'ble Supreme Court in case of

Smt.Sunita Singh vs. State of U.P. and others (supra) relied upon by the

learned counsel for the respondent nos. 2 and 3 is concerned, the facts

before the Hon'ble Supreme Court in the said judgment were totally

different. The said judgment thus would not assist the case of the jsn

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respondent nos. 2 and 3. It is held by the Hon'ble Supreme Court in the

said judgment that there cannot be any dispute that the caste is determined

by birth and the caste cannot be changed by marriage with a person of

scheduled caste. It is held that the appellant was born in "Agarwal" family,

which falls in general category and not in scheduled caste. Merely because

her husband belonged to a scheduled caste category, the appellant should

not have been issued a caste certificate showing her caste as scheduled

caste. It is held that in that regard, the orders of the authorities as well as the

judgment of the High Court could not be faulted.

105. Hon'ble Supreme Court in the said judgment held that while

exercising leniency, the Court had also kept in mind that the appellant has

neither played fraud nor misrepresented before any of the authorities for

getting the caste certificate and while continuing in service based on the

caste certificate. No questions were raised against her till the complaint in

question came to be lodged, even when the authorities had seen the high

school certificate, marks sheet etc. showing her caste as Agarwal at the

initial stage. In our view, the said judgment would not assist the the case of

the respondent nos. 2 and 3 in this case. The petitioner in this case had

never claimed to belong to NT from the date of birth when she had applied jsn

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for the said job and was appointed by the respondent nos. 2 and 3. On the

other hand, the respondent nos. 2 and 3 were insisting the petitioner to apply

and produce the caste certificate showing that she belongs to Nomadic Tribe

which the petitioner refused to comply with.

106. There is no dispute about the proposition of law laid down by the

Hon'ble Supreme Court that the powers under Article 226 are not as wide as

that of the Hon'ble Supreme Court exercising the power under Article 142

of the Constitution of India. Learned counsel for the respondent nos. 2 and

3 could not point out any order of the Hon'ble Supreme Court overruling

the judgment of this Court granting protection or continuity of the service

without claiming any caste status after adverting to the judgment of the

Hon'ble Supreme Court in case of Valsamma Paul (supra), judgment of the

Hon'ble Supreme Court in case of P.V.George & Ors. vs. State of Kerala

and others (supra), judgment of the Hon'ble Supreme Court in case of

B.A.Linga Reddy & Ors. (supra). In our view, the High Court while

exercising powers under Article 226 has power to do substantial justice.

107. It is not the case of the respondent nos. 2 and 3 that they have

committed fraud on constitution by appointing the petitioner to the said post jsn

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reserved for Nomadic Tribe though she did not belong to the said caste by

birth. Learned counsel for the respondent nos. 2 and 3 could not distinguish

the judgment of this Court in case of Vandana Vishwanath Londhe (supra)

and in case of Smt.Fatima Froes Sadavarte @ Fatima Sukurina Froes vs.

State of Maharashtra & Ors. (supra).

108. The petitioner in this case was appointed before the pronouncement

of the judgment of the Hon'ble Supreme Court in case of Madhuri Patil

(supra) and in case of Valsamma Paul (supra). In our view, the said Act

applies to the person who claims to belong to the reserve category candidate

and for the consequence in case of fraudulent claim. We accept the

statement of the petitioner that she never belonged to the Nomadic Tribe

and did not claim any such status in past nor would claim the same in future

till her retirement or even thereafter. The judgments of this Court referred

to aforesaid after adverting to the judgment of the Hon'ble Supreme Court

in case of Valsamma Paul (supra) apply to the facts of this case. In our

view, the judgment of the Hon'ble Supreme Court in case of Golak Nath

vs. State of Punjab (supra) would not assist the case of the petitioner.

109. A perusal of the impugned order of termination dated 8 th June, 2021 jsn

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indicates that the services of the petitioner in the respondent no.2 college

has been terminated on the ground that the petitioner failed to submit the

caste validity certificate though was called upon to produce by the

respondent nos. 2 and 3 and was warned that in case of failure of the

petitioner, the respondent nos. 2 and 3 would be constrained to take

appropriate steps. In our view, since the petitioner never claimed to belong

to the reserved category and always claimed to be an open category to the

knowledge of the respondent nos. 2 and 3, there was no question of the

petitioner producing the caste validity certificate belonging to the reserved

category. The termination of the services of the petitioner by the letter dated

8th June, 2021 by the respondent nos. 2 and 3 is thus illegal and deserves to

be quashed and set aside. The letter dated 11th February, 2021 addressed by

the respondent nos.2 and 3 to the petitioner expressing the intention to

terminate the services of the petitioner is also quashed and set aside.

110. We, therefore, pass the following order :-

(a) The letter of termination dated 8th June, 2021 and letter dated 11th February, 2021 issued by the respondent no.2 expressing the intention to terminate the services of the petitioner are quashed and set aside.

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(b) The respondent nos. 2 and 3 shall continue to employ the petitioner as full time assistant professor and to grant promotions which she is entitled to till she attains the age of superannuation and pay the wages and other benefits to the petitioner along with selection grade w.e.f. 1st September, 2005 till date.

(c) The respondent nos. 2 and 3 also shall pay the arrears of wages if any to the petitioner within four weeks from today.

(d) It is made clear that the petitioner shall not claim to belong to any reserved category at any point of time.

(e) The service record of the petitioner shall be corrected by the respondent nos. 2 and 3 by incorporating the suitable entry therein to the effect that the petitioner does not belong to any reserve category.

(f) Writ petition is allowed in the aforesaid terms.

Rule is made absolute in the aforesaid terms. No order as to costs.

(g) The parties to act on the authenticated copy of this order.

      [R. I. CHAGLA, J.]                                          [R. D. DHANUKA, J.]

                 Digitally signed
                 by BIPIN
      BIPIN      DHARMENDER
      DHARMENDER PRITHIANI
      PRITHIANI
                 Date: 2021.10.22
                 11:30:32 +0530