Mohan S/O Vasantrao Kumbhare vs Zilla Parishad, Wardha, Through ...
2022 Latest Caselaw 9364 Bom

WP 7925-2019                                  1                       Judgment

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

                  WRIT PETITION NO. 7925 OF 2019

Mohan S/o Vasantrao Kumbhare,
Aged about 48 years, Occ. Service,
R/o Near Priyadarshani Mahila Mahavidyalaya,
Rajnagar, Ward No.3, Nalwadi, Wardha, Dist. Wardha.
                                                                    PETITIONER
                                 .....VERSUS.....
Zilla Parishad, Wardha,
Through its Chief Executive Officer.
                                                                   RESPONDENT

               Shri S.R. Narnaware, Advocate for the petitioner.
                Shri D.R. Bhoyar, Advocate for the respondent.



CORAM : A. S. CHANDURKAR AND URMILA JOSHI - PHALKE, JJ.

DATE : SEPTEMBER 16, 2022 ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the learned

Counsel for the parties.

2. The petitioner was appointed on the post of 'Senior Assistant'

at the Zilla Parishad, Wardha on a vacancy that was reserved for the

candidates belonging to the Scheduled Tribe category. His order of

appointment is dated 23/2/1999. The tribe claim of the petitioner was

referred to the Scrutiny Committee for verification. By the order dated

13/3/2007, that claim was invalidated. The petitioner challenged the said

adjudication in Writ Petition No. 4799/2010. This Court on 24/4/2015 WP 7925-2019 2 Judgment

upheld the order passed by the Scrutiny Committee but at the same time

protected the petitioner's services by clarifying that the petitioner would

not be entitled to any further benefit on the basis of his tribe claim. The

Zilla Parishad subsequently on 20/11/2019 issued a notice to the

petitioner calling upon him to explain as to why his services should not be

terminated in the light of the judgment of the Hon'ble Supreme Court in

Chairman And Managing Director, Food Corporation Of India And Others

Vs. Jagdish Balaram Bahira And Others [(2017) 8 SCC 670]. Being

aggrieved by the issuance of the show cause notice, the petitioner has

filed the present Writ Petition.

3. The learned Counsel for the petitioner submits that the

petitioner's services having been protected by this Court in Writ Petition

No. 4799/2010, it was not permissible for the Chief Executive Officer to

have issued the aforesaid notice. According to him, the decision of the

Hon'ble Supreme Court in Food Corporation Of India (supra) was

rendered subsequent to the order granting protection to the petitioner's

services. He has placed reliance on the decision of the Aurangabad Bench

in Raja Tukaram Shinde Vs. The State of Maharashtra and another [Writ

Petition No. 903/2020 decided on 4/5/2021] with other connected

matters. He has also invited attention to the decision in Chief Regional

Officer the Oriental Insurance Co Ltd. Vs. Pradip and another [AIR 2020 WP 7925-2019 3 Judgment

SC 4858] to urge that orders that have attained finality inter parties could

not be re-opened on the basis of the decision in Food Corporation Of

India (supra). According to the learned Counsel, the observations in the

show cause notice seek to take away the benefit of protection granted to

the petitioner in Writ Petition No. 4799/2010.

4. The learned Counsel for the respondent relied upon the

affidavit-in-reply filed on behalf of the respondent as well as the decision

in Food Corporation Of India (supra). He has also referred to the

Government Resolution dated 21/12/2019 in that regard.

5. It is not in dispute that the services of the petitioner have

been protected by the order dated 24/4/2015 passed in the earlier Writ

Petition. That adjudication has attained finality. Admittedly, the order of

protection is passed prior to 6/7/2017 when the decision in Food

Corporation Of India (supra) was rendered. This position has been

considered in paragraph 16 of the decision in Chief Regional Officer the

Oriental Insurance Co Ltd. (supra). The Aurangabad Bench in Raja

Tukaram Shinde (supra) has held that protection granted earlier and that

has attained finality cannot be re-opened. We find that the petitioner

would be entitled to the benefit of protection of his services in these facts.

6. Though it is urged by the learned Counsel for the respondent WP 7925-2019 4 Judgment

that the judgment of the Aurangabad Bench is the subject matter of

challenge before the Hon'ble Supreme Court and the same is pending, we

find that there are no interim orders passed in those proceedings. In that

view of the matter, it would be for the Zilla Parishad to consider the effect

of final adjudication of those proceedings.

7. For the aforesaid reasons, the show cause notice dated

20/11/2019 is set aside. The petitioner is entitled to continue in service

in terms of the earlier order of protection.

8. Rule is made absolute in the aforesaid terms. No costs.

(URMILA JOSHI - PHALKE, J.) (A.S. CHANDURKAR, J.)

Sumit

Digitally signed bySUMIT CHETAN AGRAWAL Signing Date:16.09.2022 17:27