Bombay High Court
Shital Govindrao Bainwad vs The State Of Maharashtra Through ... on 22 July, 2022
Bench: Ravindra V. Ghuge, V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6750 OF 2022
Om s/o Bhagwanrao Anjanwad,
Age : 31 years,
Occupation : Service (Civil Engineering Assistant),
R/o Drongiri Nagar, Near Nagar Palika Office,
Hadgaon, Tq.Hadgaon, Dist. Nanded.
...Petitioner
-Versus-
1. The State of Maharashtra.
Through it's Principal Secretary,
Department of Rural Development,
Mantralaya, Mumbai-32.
2. Chief Executive Officer,
Zilla Parishad, Nanded,
Tq. and Dist. Nanded.
...Respondents
AND
WRIT PETITION NO. 6771 OF 2022
Shital d/o Govindrao Bainwad,
Age : 32 years,
Occupation : Service (Supervisor, ICDS),
R/o Datta Krupa Niwas,
Behind Hanuman Mandir,
Ganesh Nagar, Umri,
Tq.Umri, Dist. Nanded.
...Petitioner
-Versus-
1. The State of Maharashtra.
Through it's Principal Secretary,
Department of Rural Development,
Mantralaya, Mumbai-32.
::: Uploaded on - 25/07/2022 ::: Downloaded on - 26/07/2022 04:26:19 :::
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2. Chief Executive Officer,
Zilla Parishad, Nanded,
Tq. and Dist. Nanded.
3. District Program Officer (ICDS),
Zilla Parishad, Nanded,
Tq. & Dist. Nanded.
...Respondents
...
Mr. C.R. Thorat, Advocate for the petitioners.
Mr. Mahesh S. Deshmukh, Advocate assisted the Court.
Mr. P.S. Patil, Additional Government Pleader, for respondent
No.1/State.
Mrs. Yogita S. Thorat, Advocate for respondent Nos.2 and 3/Zilla
Parishad.
...
CORAM : DIPANKAR DATTA, CJ,
RAVINDRA V. GHUGE &
SMT. VIBHA KANKANWADI, JJ.
Reserved on :- 07th July, 2022
Pronounced on :- 22nd July, 2022
JUDGMENT (Per Ravindra V. Ghuge, J.) :-
1. In Writ Petition No.6771/2022, the Division Bench
(coram : Chief Justice & Ravindra V. Ghuge, J.) passed an order
on 05.07.2022 as under: -
"1. Having heard Mr. Thorat, learned advocate for
the petitioner, Mr. Patil, learned Additional
Government Pleader for the respondent
no.1/State and Ms. Thorat, learned advocate for
respondents 2 and 3/Zilla Parishad, we are of
the view that the issue raised in this petition
can be advantageously heard by a Bench of
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three judges.
2. Let the file be placed before the Chief Justice
for appropriate orders."
2. In view of the above, the Hon'ble the Chief Justice
was pleased to constitute this Larger Bench and the writ petition
was posted for hearing on 07.07.2022.
3. Writ Petition No.6750 of 2022 filed by the same
advocate for the petitioner, was before the Division Bench on
06.07.2022. Considering the above order, the said petition was
tagged along with Writ Petition No.6771 of 2022 and heard
together on 07.07.2022.
4. In Writ Petition No.6750 of 2022, the petitioner has
put forth prayer clause A as under: -
"A. By issuing Writ of Mandamus or any other
appropriate writ or direction in the like nature,
the respondent no.2 may kindly be directed to
not to insist to the petitioner, to submit the
Tribe Validity Certificate, as his appointment is
from the Compassionate Ground and not from
the Scheduled Tribe category."
5. In Writ Petition No.6771 of 2022, the petitioner has
put forth prayer clause A as under: -
"A. By issuing Writ of Mandamus or any other
appropriate writ or direction in the like nature,
the respondent no.2 and 3 may kindly be
directed to not to insist to the petitioner, to
submit the Tribe Validity Certificate, as her
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appointment is from the Compassionate
Ground and not from the Scheduled Tribe
category."
6. We have considered the strenuous submissions of
the learned counsel.
7. During the course of hearing in the matters, the issue
arising for consideration of the Larger Bench has been
formulated by us as under: -
"Whether, a compassionate appointee, is not
required to submit a caste/tribe validity certificate
when the parent had secured employment, on the
basis of a caste/tribe certificate, on a post which
was specifically reserved for a backward category
and who did not submit a validity certificate until
his/her demise while in service?"
8. The learned advocate for the petitioners relied upon
the following judgments: -
a) Umesh Kumar Nagpal vs. State of Haryana and
others, reported in (1994) 4 SCC 138.
b) Balaji Sitaram More vs. The State of Maharashtra
and others, Writ Petition No.501/2004 decided on
02.09.2015 by the Aurangabad Bench of this Court.
c) Rekha Sayanna Totawar vs. The State of
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Maharashtra and others, Writ Petition No.2131/2011
decided on 24.08.2011 by the Aurangabad Bench of
this Court.
d) Vinodkumar Singh Rajkumar Singh Thakur vs. State
of Maharashtra and others, Writ Petition
No.4185/2015 decided on 14.01.2016 by the Nagpur
Bench of this Court.
e) Smt. Sarita wd/o Vijay Giri vs. Divisional Caste
Scrutiny Committee and another, Writ Petition
No.43/2016 decided on 20.04.2016 by the Nagpur
Bench of this Court.
f) Rajesh Ravishankar Gupta vs. The Managing
Director, MSEDCL and another, Writ Petition
No.2174/2007 decided on 20.03.2017 by the Nagpur
Bench of this Court.
g) Chandrashekhar Brijbahadur Yadav vs. State of
Maharashtra and others, Writ Petition No.932/2013
decided on 04.01.2018 by the Nagpur Bench of this
Court.
h) Prashant Vistari Mallewar vs. The Chief Conservator
of Forest and others, Writ Petition No.3927/2013
decided on 20.03.2017 by the Nagpur Bench of this
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Court.
i) Sanjay Lacchhana Bodewar vs. State of Maharashtra
and others, Writ Petition No.6906/2015 decided on
04.10.2017 by the Nagpur Bench of this Court.
j) Ajinkya Rajiv Khadatkar vs. Managing Director,
MSEDCL and others, reported in 2019 (6) ALL MR
k) Pramod Shivaji Shinde vs. State of Maharashtra and
others, reported in 2017 (4) ALL MR 279.
l) Kailas Vasantrao Shrote vs. The State of
Maharashtra and another, Writ Petition
No.7746/2020 decided on 11.12.2020 by the
Aurangabad Bench of this Court.
m) Savita Ashok Koli vs. The State of Maharashtra and
others, Writ Petition No.9110/2021 decided on
01.04.2022 by the Aurangabad Bench of this Court.
n) Sunita Late Pradip Thakar vs. The State of
Maharashtra and others, Writ Petition No.6485/2020
decided on 20.07.2021 by the Aurangabad Bench of
this Court.
o) Deepak Madhukar Shukla vs. The Divisional Caste
Scrutiny Committee and others, Writ Petition
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No.1062/2016 decided 18.03.2016 by the Nagpur
Bench of this Court.
p) Mangal Manohar Salunke vs. The State of
Maharashtra and others, Writ Petition (Stamp)
No.12224/2020 decided on 23.07.2020 by the
Aurangabad Bench of this Court.
q) Sadhana Late Arjun Bagul vs. The State of
Maharashtra and others, Writ Petition
No.12938/2021 decided on 30.06.2022 by the
Aurangabad Bench of this Court.
9. The learned AGP representing the State and the
learned advocate representing the Zilla Parishad, relied upon the
following judgments and the Government Resolutions: -
a) Chairman and Managing Director, Food Corporation
of India and others vs. Jagdish Balaram Bahira and
others, reported in (2017) 8 SCC 670.
b) Chandrabhan vs. State of Maharashtra and others,
reported in (2021) 9 SCC 804.
c) R. Vishwanatha Pillai with Vimal Ghosh vs. State of
Kerala, reported in (2004) 2 SCC 105.
d) Vijay Kishanrao Kurundkar vs. State of Maharashtra
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and others, 2020 SCC Online SC 834.
e) Circular No.SRV-1097/F.No.81/98/16-A dated
16.03.1999 issued by the General Administration
Department, Government of Maharashtra.
f) Government Order No.BCC 2011/F.No.1064/2011/
16-B dated 12.12.2011 issued by the General
Administration Department, Government of
Maharashtra.
g) Government Order No. Compensate 1217/F.No. 102/
Eight dated 21.09.2017 issued by the General
Administration Department, Government of
Maharashtra.
h) Government Circular No. Akampa-1221/Pra.Kra.
186/ Ka-8 dated 26.08.2021 issued by the General
Administration Department, Government of
Maharashtra.
i) Government Resolution No.Akampa-1084/189/ CR-
155/ Tera-A dated 08.03.1985 issued by the General
Administration Department, Government of
Maharashtra.
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Writ Petition No. 6750 of 2022
10. In the first petition, the petitioner's father died while
in service on 03.11.2013. He was employed as a Junior Assistant.
Undisputedly, his appointment was on the said post reserved for
the Scheduled Tribe category. His entry in service was purely on
account of his claim of belonging to the Munnervarlu-Scheduled
Tribe and he produced his tribe certificate as a primary evidence
to support his claim. His service book, undisputedly, contained
such entry.
11. When the petitioner-Om Bhagwanrao Anjanwad was
issued the appointment order dated 29.11.2019, it was
specifically mentioned therein that he is appointed on
compassionate ground in view of the demise of his father and the
said post of Assistant Engineer (Class-III) was reserved for the
Scheduled Tribe category. It was also specifically ordered that he
would submit his tribe validity certificate within six months from
the date of his joining. His proposal for validation would be
forwarded as soon as he joined employment. If he failed to
submit the tribe validity certificate, he would be relieved from
employment by efflux of time.
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Writ Petition No. 6771 of 2022
12. In the second petition, the petitioner's father was
working as a Teacher with the Zilla Parishad. He had entered
employment as a Teacher on the basis of his claim that he
belonged to the Munnervarlu-Scheduled Tribe. He secured
employment only because he belonged to the Scheduled Tribe
and he produced his tribe certificate. Based on such selection and
appointment, an entry was made in his service book. He died
while in service on 01.06.2012.
13. The petitioner Shital d/o deceased Govindrao
Bainwad was appointed as a Supervisor in the Integrated Child
Development Project vide appointment order dated 11.12.2020.
The said post was reserved for the Scheduled Tribe. It was
specifically set out, amongst other conditions of service, that she
will have to submit her tribe validity certificate within six
months from the date of joining. If she failed to submit a tribe
validity certificate, she would be relieved from employment by
efflux of time. It is on these conditions that she accepted the
appointment order.
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SUBMISSIONS
14. Shri Deshmukh, learned Advocate volunteered to
assist the Court. While canvassing his submissions, he contended
that if a person secures an appointment to a post, which is
specifically reserved for a Scheduled Category, such candidate is
legally obliged to submit a validity certificate. If for any reason
the validity certificate is not tendered and the candidate dies in
harness, his legal heir who secures compassionate employment is
duty bound to tender his/her validity certificate.
15. Shri Thorat, learned advocate for the petitioners, has
canvassed that though the fathers of both these petitioners gained
entry in service only because the posts were reserved for a
backward category, the compassionate appointment of both these
petitioners were not made against reserved posts and hence, they
are not required to submit their validity certificates. A
compassionate appointment is a special category and no
reservation is applicable. Notwithstanding that the deceased
fathers of both these petitioners did not receive any validity
certificate and they passed away without tendering their validity
certificates, the petitioners cannot be directed to produce their
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validity certificates. He relies upon Ajinkya Khadatkar (supra)
to support his contention that the Division Bench of this Court
concluded that the petitioner was not appointed under any
reserved category and hence, no validity certificate was required
to be tendered.
16. We find from Ajinkya Khadatkar (supra) that the
Division Bench of this Court had dealt with purely a submission
that the petitioner was not appointed against any reserved post
and it was canvassed that the reservation policy would not be
applicable to compassionate appointments.
17. The petitioners have relied upon Pramod Shivaji
Shinde (supra). The Division Bench, of which one of us
(Ravindra V. Ghuge, J.) was a member, had noticed from the
facts of that case that the petitioner was appointed on
compassionate basis because his father had died in a vehicular
accident while being in service of the Maharashtra State Road
Transport Corporation. The appointment of the petitioner was
made on the post of a bus conductor which was not the post
occupied by his father, though he was appointed on
compassionate basis due to the demise of his father.
18. The petitioners have then relied upon Savita Ashok
Koli (supra), which was delivered by the Division Bench of
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which again one of us (Ravindra V. Ghuge, J.) was a member. In
the said decision, it was specifically noted by the Division Bench
that it had doubts about the contention of the employer, in the
absence of any judicial pronouncement, that the petitioner would
have to produce a validity certificate as, by her compassionate
appointment, she stepped into the shoes of her father. Her
father's entry in employment was purely on account of the post
being reserved for a backward category and he claimed to belong
to such a category. Moreover, the employer of Savita Koli had
woken up after 17 years knowing fully well that her validation
claim of belonging to Tokre Koli Tribe was already invalidated in
March, 2004.
19. The petitioners then relied upon Vinodkumar Singh
(supra) wherein the Division Bench was dealing with a challenge
by the petitioner/applicant to the direction of the Tribunal issued
to the employer to forward the proposal of the petitioner to the
Caste Scrutiny Committee. The Division Bench allowed the
petition on the ground that Vinodkumar Singh was appointed as a
constable in 2005 and there was nothing placed on record to
indicate that his appointment on compassionate basis was by
following the reservation policy.
20. The learned advocate for the petitioners has then
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relied upon Sanjay Bodewar (supra), Deepak Madhukar Shukla
(supra), Mangal Manohar Salunke (supra) and Sadhana Arjun
Bagul (supra), wherein, similar views taken, by relying upon the
earlier orders, cited.
21. The learned advocate for the Zilla Parishad has
canvassed that compassionate appointment cannot be claimed as
a matter of right and it is not a mode of recruitment. The
reservation policy would not be made applicable to
compassionate appointments as such appointments do not form a
separate class. Once the bread earner dies in harness or is
incapacitated or is declared medically unfit, paving way to a
legal heir being appointed on compassionate basis, a reservation
policy may or may not be made applicable, because such
appointments are not a mode of recruitment. Nevertheless, if
such bread earner had secured employment on the basis of a
claim of belonging to a reserved category and such employee
was duty bound to submit his validity certificate so as to legalize
his selection and appointment, the death of such an employee
would not exclude his post from reservation. The said post would
not be converted into an open category post merely because the
employee died before submitting his caste validity certificate.
Moreover, when the compassionate appointee has secured
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employment since the father succeeded in gaining such
appointment on the basis of a reserved caste, the obligation of the
father of submitting a caste validity certificate would bind even a
compassionate appointee who would be equally obliged to
submit a caste validity certificate.
ANALYSIS AND CONCLUSIONS
22. We have noticed two orders passed by the Division
Bench of this Court at the Principal Seat, dated 18.10.2016
delivered in Writ Petition No.2687/2014 filed by Shashikant
Bhagawant Dhale vs. The State of Maharashtra and others and
dated 24.10.2016 passed in Writ Petition No.6177/2016 in
Sudarshan Virswami Chenna vs. Divisional Caste Scrutiny
Committee and another, which have not been cited before us. We
are considering these two orders, which are based on the view
taken in Vinodkumar Singh (supra).
23. In Shashikant Dhale (supra), the father of the
petitioner was declared medically unfit. Shashikant was
appointed on compassionate basis in his place. The appointment
order did not indicate that he was appointed on a reserved
category post. Relying upon Vinodkumar Singh (supra), it was
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concluded that once the appointment order was made on
compassionate ground and no reservation policy is made
applicable, the compassionate appointee is not required to submit
a validity certificate. In Sudarshan Chenna (supra), the claim of
Sudarshan was invalidated on 22.01.2016. He was appointed as a
talathi on compassionate ground on 16.10.2000. It was not
indicated that he was appointed on a reserved post. Once again
reliance was placed on Vinodkumar Singh (supra) and the same
view was followed.
24. It is, thus, apparent that in all the judgments/orders
referred to above, the issue that we have framed below paragraph
7, was never addressed to the Court. All along, since it has been
canvassed in the cited reports that the compassionate
appointment order did not mention that the appointee was being
inducted in service on the reserved post by virtue of the reserved
post occupied by his father, that the various Division Benches of
this Court have held that the facts in those cases do not indicate
as to whether, the reservation was made applicable to the case of
the compassionate appointee.
25. We have cast the issue in paragraph 7 in the light of
the submission that the foundation of compassionate appointment
lays on the fact of the parent's entry in employment. Whether, the
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compassionate appointee, whose basis of entry in employment is
his parent's entry in employment, would mandate such an
employee to submit a validity certificate after the father had
secured employment on a post reserved for a backward category.
Such issue, we do not find, was addressed to the Courts, which
passed the earlier orders. This issue was also not raised in
Pramod Shivaji Shinde (supra), Sunita Thakar (supra),
Umeshkumar Nagpal (supra), Balaji More (supra) and also in
Rekha Sayanna Totawar (supra), which is the earliest judgment
of the Division Bench of this Court delivered at Aurangabad on
24.08.2011. In Savita Koli (supra), the Division Bench expressed
it's doubts about the requirement of a validity certificate by a
compassionate appointee, whose entry in service was on the
basis of his father's entry in employment on a post reserved for
the backward category. Even in this case, the issue framed by us
was not taken up for adjudication by the Division Bench.
26. Therefore, while considering the submissions
advanced at the Bar by the learned counsel for the respective
sides and on perusing the cited reports/orders, we need to
consider as to, whether, the obligation of a deceased parent to
justify his selection to a post reserved for a backward category by
tendering a validity certificate, would stand nullified after his
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death and hence, whether, the compassionate appointee will be
absolved from tendering a validity certificate. This was never
addressed to the Division Bench of this Court and even not
before the Hon'ble Supreme Court.
27. The Division Bench observed in paragraph 7 in
Savita Ashok Koli (supra) as under: -
"7. We are aware that if the deceased father/mother of
a candidate entered service solely on the ground
of belonging to a particular reserved/tribe and
because the post was reserved for such a
backward category, there could be an argument
that the legal heir of such a deceased employee, in
the absence of the deceased employee having
produced any validity certificate until his
premature death, may require such a candidate to
produce a validity certificate. Though we have
our doubts with regard to such contention in the
absence of any judicial pronouncement, the fact
situation in this case remains that there is no
mention or statement in the appointment order of
the petitioner indicating that she has succeeded in
getting a compassionate appointment only
because she belongs to a backward category and
the post was reserved for such a particular
category."
28. In Savita Koli (supra), the appointment order issued
to the compassionate appointee did not mention that she was
being appointed in place of her father, who was a police
constable. The compassionate appointee was appointed as a
steno-typist on compassionate basis, temporarily. She was not
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intimated that she would have to submit her validity certificate.
However, we are considering a larger issue that was neither
directly addressed to the Court, nor specifically canvassed on the
basis that the compassionate appointee was appointed in place of
the parent.
29. This impels us to deal with the factum of the entry
of the deceased parent in employment, which is the reason due to
which the compassionate appointee entered service wholly and
solely on the ground of the demise of the parent. Had such a
parent not passed away, he would have been legally bound to
tender a validity certificate, lest, all his service benefits including
his employment, would have been taken away in the light of the
law crystallized in R. Vishwanatha Pillai (supra).
30. In paragraphs 69.3 and 69.4 of Jagdish Balaram
Bahira (supra), the Hon'ble Supreme Court has observed as
under: -
"69.3 The decisions of this Court in R. Vishwanatha
Pillai and in Dattatray which were rendered by
benches of three Judges laid down the principle of
law that where a benefit is secured by an individual -
such as an appointment to a post or admission to an
educational institution - on the basis that the
candidate belongs to a reserved category for which
the benefit is reserved, the invalidation of the caste or
tribe claim upon verification would result in the
appointment or, as the case may be, the admission
being rendered void or non est.
69.4 The exception to the above doctrine was in those
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cases where this Court exercised its power under
Article 142 of the Constitution to render complete
justice."
31. So also, during the lifetime of the parent, had the
compassionate appointee independently sought employment in
Government service or in a public sector undertaking on a
reserved post, he/she would have been legally bound to submit
the caste validity certificate within six months of joining duties.
If this be so, then, it would be illogical, nay illegal, to permit a
compassionate appointee to continue in place of the deceased
parent without tendering a validity certificate in the backdrop of
the parent having passed away before submitting the validity
certificate.
32. It cannot be ignored that a compassionate
appointment is not a vested right. Similarly, the compassionate
appointee does not have to compete with the candidates who
have applied for employment in a recruitment process. One can
venture into saying that the compassionate appointee gets a
special treatment owing to fortuitous circumstances, which are
surely tragic, as the family has lost the sole bread earner. It also
cannot be ignored that unless the original appointee submits a
validity certificate, his selection and appointment would never be
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legalized as he is selected on a post reserved for the backward
category. Whether, he factually belongs to the caste/tribe on the
basis of which he has earned a job, will have to be scrutinized,
lest, such selection would amount to an illegality and a worthy
candidate belonging to that category would end-up in losing his
opportunity of securing employment.
33. We have invariably found in several cases that such
appointees, who have died in harness, had avoided filing their
validity certificates for periods ranging from 10 years to 20
years. We can take judicial notice of cases coming before us
wherein, retired candidates have filed petitions for seeking retiral
benefits which have been withheld only because the appointee
did not tender a validity certificate during his entire service
period of about 30 or more years. There are schemes cited before
us wherein, certain State instrumentalities permit compassionate
appointments even upon superannuation of the appointee.
Allowing a candidate to enjoy the fruits of employment earned
on the basis of a claim of belonging to the reserved category
without submitting such validity and permitting the legal heir to
gain compassionate appointment only on account of the demise
of the parent and that too without demanding a validity
certificate, would amount to playing a fraud on the public at
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large.
34. This issue can be looked at, from another angle as
well. If the deceased employee had declared his social status of
belonging to a reserved category on the basis of which he earned
employment on a post reserved for that category, but died in
harness without tendering a validity certificate, and his son or
daughter, claiming to be belonging to the same category, acquires
compassionate appointment, what could be the hurdle or
embargo for such a candidate in submitting the validity
certificate. When the deceased appointee as well as the
compassionate appointee claim to be belonging to a particular
backward category, we do not see any impediment for the
compassionate appointee to tender a validity certificate unless, of
course, the family members of the deceased know for sure that
they do not belong to that particular category and, therefore,
production of a validity certificate would never fructify.
35. It is beyond debate that the compassionate appointee
lays stake to compassionate appointment only because the
deceased parent was in employment. Such appointee can,
therefore, submit a validity certificate to legalize such entry in
employment which obligation was earlier cast upon the deceased
parent. This obligation having not been discharged, would be
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inherited by the compassionate appointee since such appointee
seeks compassionate appointment only by virtue of the entry in
service of the deceased parent.
36. We can also visualize a situation which has come to
our notice in few cases. The employee finds that his caste/tribe
claim is invalidated. He approaches this Court challenging such
invalidation. During the pendency of his proceedings, he passes
away. His son/daughter secures compassionate employment. In
our view, even in such cases, such candidate would be legally
obliged to tender a validity certificate.
37. In Jagdish Balaram Bahira (supra), the Hon'ble
Supreme Court concluded that, for a person seeking admission in
an educational institution or an employment under a reserved
category, based on the claim that he belongs to that category, the
burden lies on him/her who made such claim on the basis of the
caste certificate. Such a person is presumed to be aware of his
caste/tribe to which he/she belongs and must establish the claim
of belonging to such caste/tribe. A failure to do so, would render
the claim (of belonging to such a caste/tribe) fraudulent under the
Maharashtra Scheduled Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of Issuance and
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Verification of) Caste Certificate Act, 2000. 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/she
belongs and must establish the claim. It is then held that Sections
7 and 10 have to be construed in harmony as Section 10 provides
for withdrawal of civil benefits, which have accrued to an
individual on the strength of his claim of belonging to a reserved
category when the claim is invalidated. It is then concluded that
the falsity of the claim lies in a representation that the candidate
belongs to a category of persons for whom the reservation is
intended. The withdrawal of benefits is not based on mens rea or
the intent underlying the assertion of the false claim.
38. In Jagdish Balaram Bahira (supra), the Hon'ble
Supreme Court has also held that the withdrawal of civil benefits
flowed as a logical result of the invalidation of a claim that a
person belongs to a category for which the reservation is
intended. This impels us to consider as to what could be the
difference between the "invalidation of a claim" and a candidate
"not establishing his claim". Though, invalidation of a claim
would be indicative of a person being officially declared as not
belonging to a particular category, the effect would be no
different than a candidate not submitting his validity certificate
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for decades, thereby rendering his claim of belonging to a
category, seriously doubtful. The net result would be that a
candidate without a validity certificate cannot claim to belong to
a particular category and so is the case of a candidate who is
declared as not belonging to that category owing to invalidation.
39. In our considered view, the submission of the
validity certificate by a candidate having secured employment on
the basis of reservation on a post reserved for the backward
category would be a sine qua non. The procedure for selection
and the prescription of the eligibility criteria has a significant
public element in enabling the State to make a choice amongst
the competing claims. The selection of an ineligible person is a
manifestation of a systemic failure, which has a deleterious effect
on good governance. If such candidates are permitted to occupy
posts and evade submission of validity certificates for years or
decades and after the unfortunate demise of such a person in
harness, paving the way to compassionate appointment treating
the post to be from the open category and redeem the
compassionate appointee from the obligation of submitting the
validity certificate, which his father was legally obliged to
submit in order to legalize his appointment, would be detrimental
to the entire class of persons for whom the reservations are
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intended. Excluding such members or depriving a legitimate
candidate of an appointment, as a result of the recruitment
granted to an impostor would violate the rights of genuine
candidates. We cannot permit the illegality to be perpetrated by
absolving the compassionate appointee from tendering a validity
certificate, which his father was legally obliged to tender.
40. We are of the view, based on Jagdish Balaram
Bahira (supra), that good governance would mandate that a
compassionate appointee who gains entry in employment only on
the basis of his father's appointment to a post reserved for a
backward category, has to submit his validity certificate. To make
such law effective, it would be imperative that the candidate
should not be regularized in compassionate employment until
he/she submits the caste/tribe validity certificate within a
particular period after being appointed on compassionate basis.
We are not of the view that such submission of the validity
certificate be made a precondition for appointment, since
compassionate appointment has to be granted urgently and
keeping the candidate waiting until he/she submits a validity
certificate, would defeat the purpose for which the
compassionate appointment is to be granted. However,
acceptance of the contention of the petitioners that they are not
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required to submit validity certificates, despite their respective
parents having obtained entry in public service on reserved posts
for the backward property, would amount to creating a mode of
backdoor recruitment which the law does not countenance.
41. In the above backdrop, we are of the view that the
reserved category post occupied by the deceased employee
would not be converted into an open category post after the
demise of the employee. His entry in employment being on the
basis of his reservation, would not alter the reservation
applicable to the post. The said post would continue to be
reserved for that category since a vacancy has suddenly occurred
due to the demise of the employee, paving way for
compassionate appointment.
42. We, therefore, hold that the legal heir being granted
compassionate appointment in view of a vacancy created by the
demise of the parent, who was appointed on the post reserved for
a backward category believing that he did belong to such
category, will mandate the compassionate appointee to tender the
validity certificate after gaining compassionate employment.
43. For the reasons recorded hereinabove, we answer
the issue framed in paragraph 7, in the affirmative.
44. Both the petitions are, therefore, devoid of merits
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and stand dismissed. No costs.
45. However, in order to give an opportunity to both
these petitioners, we direct the petitioners to submit their
caste/tribe certificates to their respective employers within 15
days. The said employers would forward the claims of these
petitioners to the competent scrutiny committee for validation as
soon as possible but invariably within thirty days of such
submission. The competent scrutiny committee shall then
conduct the proceedings and ensure that the proceedings are
completed within one year from the date of receipt of the claim
papers. Until such claims are decided, the services of both these
petitioners shall not be dispensed with. Their confirmation
orders, if not yet issued, would be kept in abeyance till such
decision of the competent scrutiny committee. If validity
certificate is produced, follow-up steps to confirm/continue them
in service will be taken without any delay. Should validity
certificate be refused and such order of refusal be not interfered
at an interim stage of any proceedings that may be brought
before the Court by the petitioners, they will have to step down
from the respective posts held by them subject to the result of
such proceedings.
46. Before parting, we make two things clear. First, if
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the parent of the compassionate appointee during his service
tenure had submitted the validity certificate as proof of belonging
to the particular backward category for which the post was
reserved, the compassionate appointee may not again be required
to produce the validity certificate. This is because the
compassionate appointee inherits the caste/tribe of his/her parent
and should not be asked to prove his/her caste/tribe status twice
over. Secondly, if the deceased employee had not submitted the
validity certificate as proof of belonging to the particular
backward category for which the post was reserved, it shall be
the duty of the employer, while calling upon the compassionate
appointee to produce the validity certificate, to indicate with
sufficient degree of clarity and reliable material that his/her
parent obtained entry in public service on a post reserved for the
backward category. This direction is made bearing in mind cases
where the deceased employee, despite participating in the
process as a candidate belonging to a backward category, might
have secured appointment competing with open category
candidates on his/her own merit and appointed against an
open/unreserved vacancy and not against the reserved vacancy
but the service book records that he/she belongs to a particular
caste/tribe. Merely because of such an entry, production of
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validity certificate in such cases should not be insisted upon and
the compassionate appointee harassed.
47. Finally, we record our appreciation for the assistance
rendered by all the learned advocates who addressed us in course
of hearing.
(RAVINDRA V. GHUGE, J.)
Smt. Vibha Kankanwadi, J.: I agree.
(SMT.VIBHA KANKANWADI, J.)
CHIEF JUSTICE:
I have read the well-considered judgment authored
by learned brother Justice Ghuge. While I wholeheartedly concur
with the reasons assigned and the conclusions reached by His
Lordship, I wish to add a few words having regard to the
importance of the question that has emerged for an answer and
particularly in view of the absence of a precedent of the Supreme
Court directly on the point.
2. A public office is not heritable. The general rule of
appointment to public service is through open invitation and on
merits. Compassionate appointment, it is well known, is an
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exception to such general rule. The object thereof is to mitigate
the hardship due to the death of the bread-earner in the family by
providing an appointment to an eligible dependent of the
deceased to redeem the family in distress. In essence,
compassionate appointment is a matter of policy of the employer
and no appointment can be directed to be made contrary to such
policy; hence, any claim for a compassionate appointment has to
be in accordance with the policy/guidelines framed in this behalf
and cannot be claimed as a matter of right. However, if any such
policy exists, there cannot be a denial of the right of
consideration for such appointment. These are very basic
principles.
3. In cases of claims for compassionate appointment, at
times, driven by endless compassion for the unfortunate family
members of the deceased employee, some Courts momentarily
forget that the supremacy of law must override all considerations
of sentiments and sympathy.
4. It is this very aspect that engaged the attention of the
Supreme Court in Life Insurance Corporation of India vs. Asha
Ramchandra Ambekar, reported in (1994) 2 SCC 718. While
dealing with a claim for compassionate appointment, the Court
cautioned that the High Courts and the Administrative Tribunals
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cannot confer benediction impelled by sympathetic
consideration. One ought to know, there may be other cases even
harder than the one under consideration waiting already for
appointment on compassionate ground. There could be pitiable
situations but, on that score, the statutory provisions cannot be
put aside.
5. Turning to 'reservation', it has in our country
attained a particular legal significance in matters relating to
public employment. It connotes the setting apart of posts for
being filled up by special categories of candidates. The
Constitution of India provides for protective discrimination and
reservation to enable the disadvantaged group to come on the
same platform as that of the forward caste, thereby seeking to
achieve a balance between the rights of the backward classes and
the general stream. However, concededly, no citizen can claim
reservation as of right since the provisions of Articles 15 and 16
of the Constitution are merely enabling provisions.
6. Since reservation is intended to bring about adequate
representation of such categories as are not adequately
represented in the services as well as empowerment of the
backward classes, it is axiomatic that the object and purpose for
reservation in public services are secured for the rightful
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claimants. Such policy can never produce the desired results if
the reserved posts are occupied by persons other than those for
whom they are set apart.
7. In Jagdish Balaram Bahira (supra), the object and
purpose underlying the enactment of the State legislation, i.e., the
Maharashtra Scheduled Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of Issuance and
Verification of) Caste Certificate Act, 2000, was noticed.
According to the Supreme Court, the legislation is intended to
regulate the issuance of caste certificates and to deal with
instances which had come to light where persons who did not
belong to the Scheduled Castes or Tribes or reserved categories
were seeking appointments or admissions to the detriment of
genuine candidates. The basic purpose and rationale for the
legislation, the Court held, was to secure the just entitlements of
legitimate claimants. The acts of the respondents, under
challenge in these writ petitions, have their roots in such
legislation.
8. What has been experienced in our country for quite
some time past is that the dishonest spare no opportunity to
obtain benefits and privileges, which are not meant for them, by
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fraud or deceit. A post reserved for a backward caste being
occupied by a candidate of a forward caste led the Supreme
Court to observe in R. Vishwanatha Pillai (supra) that where an
appointment in a service has been acquired by practising fraud or
deceit, such an appointment is no appointment in law, and in
such a situation Article 311 of the Constitution is not attracted at
all. It was also held that a person obtaining appointment illegally
will not be entitled to pension even since his appointment is void
and non est in the eye of law, notwithstanding that he has served
the employer for long years. Indeed, the judgment takes a very
strong stance befitting the situation and sending a message, loud
and clear, that dishonesty in the long run does not pay.
9. Having considered the decisions of the Supreme
Court, the principle that follows is that an illegal appointment in
the past cannot provide justification for a present grant and this
must be the guiding factor.
10. Without production of the validity certificates, the
deceased employees had only an inchoate right to continue on
the posts they held. Their appointments on reserved posts could
be seen as legal and valid in law, only upon production of the
validity certificates. So long they did not produce the validity
certificates, they all along stood on the edge of a precipice. But
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for their unfortunate death, they were constantly under a
statutory obligation to produce the validity certificates. Had the
employer acted against them according to the provisions of the
2000 Act for non-production of the validity certificates during
their lifetime, they would have been out of service and without
the means of livelihood. Such a situation of losing service as well
as pensionary benefits would have left the family members high
and dry. If such a situation could not have been redeemed in any
manner, I have failed to comprehend how the tragic circumstance
of death of an employee, who had not in his lifetime produced
the validity certificate, could operate to the advantage of his
family members for securing an appointment on compassionate
ground in his place which is contingent on 'death'. The right to
be considered for compassionate appointment being
consequential to the death of his/her parent, it is irrelevant
whether the dependent family member has been appointed, on
compassionate ground, on an open or unreserved post. The
primary right to seek an appointment on compassionate ground
flows from the fact that the father/mother was in public service
and his/her appointment was legal and valid, in the sense that he
enjoyed the protection guaranteed by Article 311 of the
Constitution or the security of service provided by other laws.
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Accepting the claims of the petitioners and holding that they
need not produce validity certificates, on the face of their
admission that their respective fathers were appointed on
reserved posts, would amount to approval of the Court of the
failure/omission/neglect of the deceased employees to discharge
their statutory obligation of producing the validity certificates
though they held posts which undoubtedly were not meant for
them. If an usurper of a public office for decades does not have
any right to claim pensionary benefits, a fortiori, any dependent
family member of such usurper of public office can have no
better rights than him. The petitioners having come into the
picture after death of their fathers could not have better rights
than their fathers. Allowing them to cling on to the posts, which
came in their way fortuitously, would be unjust, unfair and
inequitable. Securing the just entitlements of legitimate
claimants would be difficult, if not impossible, if the contentions
of the petitioners were accepted.
11. The multiple decisions of this Court, considered and
dealt with (by learned brother Justice Ghuge in His Lordship's
judgment) contain observations restricted to the facts before the
respective Benches and cannot be read as authorities for the
proposition that in no case of a compassionate appointment on an
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open/unreserved post can the employer ask the appointee to
produce the validity certificate of his/her caste/tribe.
12. Adequate protection has been carved out in the
judgment for all compassionate appointees standing on the same
footing as the petitioners and it is, therefore, just and proper that
as directed by His Lordship the petitioners produce the validity
certificates failing which consequences would follow as per law.
(CHIEF JUSTICE)
kps
