Mohhamad Javed S/O Abdul Kayyum vs The Divisional Commissioner, ...
2022 Latest Caselaw 6848 Bom

                                                           921-wp-1729-21-J.odt




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH AT NAGPUR

               WRIT PETITION NO. 1729 OF 2021

   Mohhamad Javed S/o. Abdul Kayyum
                                                          Petitioner
                         Versus

1. The Divisional Commissioner, Amravati Division,
   Amravati

2. Zilla Parishad, Akola through its Chief Executive     Respondents
   Officer

3. Education Officer (Primary), Zilla Parishad, Akola,
   Dist. Akola


                           WITH
               WRIT PETITION NO. 1730 OF 2021

   Sheikh Mustaque Abdul Sattar
                                                          Petitioner
                         Versus

1. The Divisional Commissioner, Amravati Division,
   Amravati
2. Zilla Parishad, Akola through its Chief Executive     Respondents
   Officer
3. Education Officer (Primary), Zilla Parishad, Akola,
   Dist. Akola

                                  WITH

               WRIT PETITION NO. 4343 OF 2021

   Yunus Parvez S/o Mohmmad Iqbal
                                                          Petitioner


                                                                PAGE 1 OF 11
                                                                 921-wp-1729-21-J.odt




                          Versus

1. The Divisional Commissioner, Amravati Division,
   Amravati
2. Zilla Parishad, Akola through its Chief Executive          Respondents
   Officer
3. Education Officer (Primary), Zilla Parishad, Akola,
   Dist. Akola

Mr. Ram D. Karode, Advocate for petitioner in all petitions
Mr. K.L. Dharmadhikari, AGP for respondent No.1 in all petitions
Mr. A.M. Tirukh, Advocate for Respondent No.3 in all petitions

                                   CORAM : MANISH PITALE, J.

DATE : 19th JULY, 2022

ORAL JUDGMENT Rule. Rule is made returnable forthwith.

2. Mr. K.L. Dharmadhikari, learned Assistant Government Pleader

waives service for respondent No.1.

3. Mr. A.M. Tirukh, learned counsel waives service for respondent

No.3.

4. By these three petitions, the petitioners are challenging orders

passed by the Respondent - Divisional Commissioner, whereby their

appeals were dismissed and they have also challenged communications

dated 21/10/2016, issued by the respondent No.3, asking the

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petitioners to produce caste validity certificates, in the absence of which

appropriate action would be taken against them.

5. The petitioners contend that they had applied for appointment to

the post of "Shikshan Sewak", to be later on appointed as per a

Government scheme as "Assistant Teachers", pursuant to advertisement

dated 09/02/2006, issued by the respondent - Zilla Parishad. It is

claimed on behalf of the petitioners that in pursuance of the said

advertisement, they had applied for appointment in the open category.

They were selected on merits, but, the appointment orders dated

20/05/2006, issued in favour of the petitioners erroneously stated that

their appointments were in the scheduled tribe category.

6. The petitioners sent communications / applications to the

respondent No.3 immediately after their appointments on 20/07/2006,

seeking correction of the appointment orders, specifically requesting

that they ought to be shown as appointed in the open category because

their applications were also made in the said category. No action was

taken on the said applications submitted by the petitioners. After about

10 years of the appointment of the petitioners, the aforesaid impugned

communications dated 21/10/2016, were issued to the petitioners

asking for submission of caste validity certificates.

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7. Aggrieved by the same, the petitioners filed appeals before the

Divisional Commissioner. By impugned order dated 25/01/2021, the

appeals were dismissed, as a result of which, the petitioners face the

threat of action against them in the absence of submission of caste

validity certificates.

8. The petitioners filed the present writ petitions, wherein notices

were issued and the respondents entered appearance through counsel.

9. Mr. Ram Karode, learned counsel appearing for the petitioners

submitted that there was no propriety on the part of the respondent

No.3 to have issued the impugned communications, asking the

petitioners to submit caste validity certificates because the appointments

of petitioners could never be said to have been made under the

scheduled tribe category. It was submitted that apart from the

petitioners having immediately submitted the said applications for

correction of their appointment orders, conduct of the respondent

Nos.2 and 3 itself indicated that the petitioners were treated as having

been appointed in the open category. Reliance was placed on the

seniority list dated 01/09/2007, issued by the respondent No.2,

wherein all the three petitioners were shown as belonging to the open

category. Similarly, 100 point roster prepared on 01/09/2007, also

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showed the petitioners as belonging to the open category. On this basis,

it was submitted that the respondent Nos.2 and 3 ought not to be

permitted to take action against the petitioners for not having

submitted caste validity certificates. It was submitted that in this

backdrop, it was evident that the respondent - Commissioner erred in

dismissing the appeals and in proceeding on the basis that the

petitioners had sought appointment in the reserved category, although

they did not belong to such category.

10. Mr. Tirukh, learned counsel appearing for the contesting

respondent Nos.2 and 3 submitted that certain documents were placed

on record with the reply-affidavits in these three petitions to show that

the mistake that had occurred in earlier seniority list and 100 point

roster was subsequently corrected in the year 2018, by recording that

the petitioners were in the category of the scheduled tribe and that,

therefore, the petitioners were not entitled to take advantage of the

earlier seniority list and 100 point roster prepared by the office of the

respondent No.2. It was submitted that the petitioners were aware that

the appointment orders specifically stated that their appointments were

made in the scheduled tribe category and that, therefore, it was

necessary for them to produce validity certificates.

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11. Mr. K.L. Dharmadhikari, learned Assistant Government Pleader

appeared on behalf of respondent No.1.

12. This Court has considered the documents on record in the

backdrop of the submissions made by the learned counsel for the rival

parties. The only explanation put-forth on behalf of respondent Nos.2

and 3 is that documents issued mistakenly in the form of seniority list

and 100 point roster in the year 2007, were corrected subsequently and

that as per the records of respondent Nos.2 and 3, the petitioners

belonged to the scheduled tribe category, having been appointed in the

said category and that, therefore, it was mandatory for them to have

produced the caste validity certificates. On this basis, the impugned

orders were sought to be defended.

13. This Court has carefully considered the documents on record.

The advertisement dated 09/02/2006, shows that four posts in the

open category were to be filled, apart from the posts to be filled in other

categories, including 9 posts in the scheduled tribe category. The

petitioners applied in pursuance of the said advertisement for being

appointed in the open category. They never claimed to belong to the

scheduled tribe category or that their candidatures were to be

considered under the said category. But, appointment orders dated

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20/05/2006, stated that they were appointed in the scheduled tribe

category. It is an admitted position on record that all the three

petitioners, within months of their appointments sent specific

applications to the respondent No.3 i.e. the Education Officer

(Primary) of the Zilla Parishad, praying for correction of their

appointment orders. It was highlighted on behalf of the petitioners that

they had applied in pursuance of the said advertisement for

appointment in the open category and that, therefore, the mistake that

had occurred in the appointment orders issued by the said office was

required to be corrected immediately.

14. It is an admitted position that no action was taken by the

respondent Nos.2 and 3, despite specific applications for correction of

appointment orders submitted on behalf of the petitioners.

15. Instead, in the year 2007, the respondent No.2 itself showed the

petitioners in the seniority list as well as 100 point roster, as belonging

to the open category. It appears that after having issued the impugned

communications dated 21/10/2016, asking the petitioners to submit

caste validity certificates, in the absence of which action would be

initiated against them, corrections were made by the respondent Nos.2

and 3 in the 100 point roster in the year 2018, to show that the

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petitioners were appointed in the scheduled tribe category.

16. The aforesaid material submitted on record clearly indicates that

there is substance in the contentions raised on behalf of the petitioners.

Having applied in the open category in pursuance of the advertisement

issued by the respondents and having been selected, when the

appointment orders were issued, they were wrongly shown as appointed

in the scheduled tribe category. It would have been another matter if

the petitioners had kept quiet and proceeded to enjoy such

appointments, without bringing to the notice of respondent Nos.2 and

3 that they belong to the open category and that the appointment

orders appeared to be erroneous. But, the admitted position on record

in the present cases is that immediately after their appointment the

petitioners did move specific applications before the respondent No.3

for correction of the appointment orders to show them as appointed

under the open category, as they had applied in the open category in

pursuance of the said advertisement. The respondent Nos.2 and 3 took

no action on the said specific applications moved on behalf of the

petitioners.

17. It is also an admitted position that in the seniority list and in the

100 point roster issued in the year 2007, the petitioners were indeed

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shown in the open category, which clearly gave an impression to the

petitioners that their applications for correction in the appointment

orders had been acted upon and it is for this reason that they were

shown in the open category in the said documents.

18. After more than 10 years of their appointment, the petitioners

were served with the aforesaid communications dated 21/10/2016,

asking them to submit caste validity certificates, in the absence of which

action was sought to be initiated against them. In this backdrop, the

petitioners filed the appeals before the respondent No.1 -

Commissioner, seeking redressal of their grievances.

19. But, in the impugned order, dated 25/01/2021, the Divisional

Commissioner in a verbose order has completely missed the most

crucial point. The impugned order has proceeded on the basis, as if the

petitioners were seeking to usurp posts meant for reserved category and

the appeals have been dismissed primarily by adopting such approach.

There is no consideration at all of the aforesaid material, specifically

brought to the notice of said authority by the petitioners.

20. Even before this Court, the respondent Nos. 2 and 3 had no

explanation except relying upon 100 point roster of the year 2018, to

claim that correction had been made in the records to now show the

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petitioners as appointed in the scheduled tribe category. The said

explanation cannot be accepted for the reason that respondent Nos. 2

and 3 failed to respond to the timely applications / representations

made by the petitioners for correction in the appointment orders. It is

not as if in the advertisement dated 09/02/2006, posts only for the

scheduled tribe category were advertised and the petitioners had applied

under such category. The record shows that the petitioners had applied

in the open category and, that there were four posts specified in the

aforesaid advertisement for open category. In this backdrop, this Court

is convinced that the respondent Nos.2 and 3 could not have called

upon the petitioners to submit caste validity certificates and to threaten

action against them in absence of submission of such certificates. The

petitioners never claimed to belong to the scheduled tribe category and,

therefore, there was no question of proceeding against them in the

absence of submission of caste validity certificates. The impugned

action on the part of respondent Nos.2 and 3 smacks of arbitrariness

and, therefore, deserves to be set aside.

21. Accordingly, the writ petitions are allowed. The impugned orders

dated 25/01/2021, issued by respondent No.1 - Divisional

Commissioner and dated 21/10/2016, issued by the respondent No.3 -

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Education Officer (Primary), Zilla Parishad, Akola, are quashed and set

aside and it is directed that the petitioners shall be treated as having

been appointed in the open category.

22. Rule is made absolute in above terms.

23. Pending applications, if any are disposed of.

JUDGE MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:21.07.2022 PAGE 11 OF 11 18:22