Rajendra S/O Ramrao Likhar vs The State Of Maharashtra, Through ...
2023 Latest Caselaw 10357 Bom

2023:BHC-NAG:14667-DB


                                                                                wp.920.2020.judgment.odt
                                                            1

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

                                        WRIT PETITION NO.920 OF 2020

                         Rajendra S/o Ramrao Likhar,
                         Aged about 46 Years, Occ. Service,
                         C/o Dipak Thakare, Nandanwan
                         Colony, Near Vitthal Rukhmini Mandir,
                         Harraj Stop, VMV Road, Amravati 440044.               ..... PETITIONER

                                                    // VERSUS //

                 1.     The State of Maharashtra,
                        Through its Chief Secretary,
                        General Administration Deptt.,
                        Mantralaya, Mumbai - 32.

                 2.     Superintending Engineer,
                        Maharashtra State Electricity
                        Distribution Company Limited
                        (MSEDCL), O & M Circle,
                        Yavatmal.                                            .... RESPONDENTS

                 ---------------------------------------------------------------------------------------
                         Shri. S. R. Narnaware, Advocate for petitioner.
                         Mrs. T. H. Khan, Assistant Government Pleader for respondent
                         No.1.
                         Mr. S. V. Purohit, Advocate respondent No.2.
                 ---------------------------------------------------------------------------------------


                                               CORAM :  AVINASH G. GHAROTE AND
                                                        URMILA JOSHI-PHALKE, JJ.

RESERVED ON : 29.08.2023 PRONOUNCED ON : 07.10.2023

JUDGMENT : [ PER: URMILA JOSHI-PHALKE, J.]

1. RULE. Rule is made returnable forthwith. Heard finally by consent of learned counsel for parties.

wp.920.2020.judgment.odt

2. The petition is for seeking declaration that Government

Resolution dated 21.12.2019 issued by respondent No.1 - State of

Maharashtra is not applicable as the service of the petitioner was already

protected by virtue of judgment dated 27.02.2017 in Writ Petition No.

2416/2005 and to direct the respondent No.2 - Superintending

Engineer, MSEDCL O & M Circle, Yavatmal to grant higher grade

benefits as per rules to the petitioner.

3. The petitioner was appointed as a 'Junior Operator' by order

dated 19.09.1997 against the post reserved for Scheduled Tribe category

(S. T. Category) on the basis of caste certificate dated 04.12.1989. He

claims to be of caste 'Halba - Scheduled Tribe' under the certificate

issued by the competent authority i.e. Executive Magistrate, Warud,

District Amravati. The caste claim of the petitioner of belonging to

'Halba - Scheduled Tribe' was invalidated. He had challenged the said

invalidation order in Writ Petition No.2416/2005 before this Court for

protection of service. This Court had protected the service of the

petitioner by passing order in Writ Petition No.2416/2005 on condition

that he shall give an undertaking that he would not claim the benefits

meant for the 'Halba - Scheduled Tribe' in future. The petitioner made

an application to the respondent No.2 to consider the higher grade

benefits as per Rules. On 03.02.2010 and 28.03.2019 as he had wp.920.2020.judgment.odt

completed the six years of service on 03.02.2010 and 23 years of service

on 28.03.2019. As per contention of the petitioner, in spite of his service

protected by order of this Court, he was not paid higher grade benefits

till date, therefore, he preferred representation on 28.03.2019 for higher

grade benefits. In prior point of time also he made such type of

application but the respondent No.2 has issued a letter dated 03.02.2010

stating that the case of the petitioner will be scrutinized after finalization

of the Court case. Now, the Court has already finalized the issue but the

respondent No.2 has not finalized the higher grade benefits to him.

Thus, the order passed by the respondent No.2 by applying the

Government Resolution dated 21.12.2019, in view of the Judgment of

the Hon'ble Apex Court in the case of Chairman and Managing Director

FCI and others Vs. Jagdish Balaram Bahira and others, reported in

2017(8) SCC 670 and refused to grant higher benefits is arbitrary, illegal

and liable to be quashed.

4. Learned Assistant Government Pleader Ms. T. H. Khan for

the respondent No.1/State opposed the said petition on the ground that

in view of the Judgment of the Hon'ble Apex Court in the case of

Chairman and Managing Director FCI and others Vs. Jagdish Balaram

Bahira and others (supra), the petitioner is not entitled for any higher wp.920.2020.judgment.odt

grade benefits therefore, the order passed by the respondents is legal

and not called for any interference.

5. Heard learned Counsel Shri S. R. Narnaware for the

petitioner who submitted that the issue arising in this Writ Petition has

been decided by the Aurangabad Bench of this Court in Writ Petition

No.903/2020 with connected Writ Petitions (Raja Tukaram Shinde vs.

State of Maharashtra, Tribal Development Department Mantralaya,

Mumbai and another and submitted that the Government Resolution

dated 21.12.2019 has been directed to be applied in a manner so as not

to include employees whose tribe claims are invalidated but are granted

protection in employment by the orders of the Court and submitted that

similar course be followed and the order dated 31.12.2019 be set aside.

6. Learned AGP Ms. T. H. Khan and Mr. S. B. Purohit for

respondent No.2 opposes the aforesaid contention and submitted that in

view of the fact that the issue involved of protection of service is

challenged by the State Government before the Hon'ble Apex Court,

hence the relief prayed deserves to be rejected.

7. Having heard both sides and on perusal of record, it reveals

that the tribe claim of the present petitioner is invalidated. The wp.920.2020.judgment.odt

invalidation of the tribe claim of the petitioner was challenged before

this Court in Writ Petition No. 2416/2005. This Court considered that

the petitioner was admittedly appointed before the cut off date and from

the order of the Scrutiny Committee nothing is on record to show that he

had fraudulently claimed the benefits meant for 'Halba - Scheduled

Tribe'. The caste claim of the petitioner is mainly rejected as the

petitioner could not prove the same on the basis of the affinity test.

Though there is some reference in regard to the writing of the word

'Halba' in the School Admission Register, the said correction was said to

be have been made by the Government Servant in course of his duties.

It is further observed by this Court that there is nothing in order of the

Scrutiny Committee that would show that the petitioner had fabricated

the document or had interpolated the same so as to secure the benefits

meant for the Halba Schedule Tribe and held that the services of the

petitioner needs to be protected. At the same time, this Court has held

that the respondent No.2 to protect services of the petitioner on the post

of Junior Operator only on the condition that the petitioner furnishes an

undertaking, that neither the petitioner nor his progeny would claim the

benefits meant for the Halba Schedule Tribe, in future.

8. In view of the said order, the petitioner had furnished his

undertaking. The petitioner approached to this Court on the ground that wp.920.2020.judgment.odt

as his service is protected and he has rendered the service, he is entitled

for the service benefits i.e. higher grade pay. On the other hand, it is the

contention of the respondents that the interpretation of the law and the

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

Managing Director FCI and others Vs. Jagdish Balaram Bahira and others

(supra) shows that the petitioner is not entitled for any benefits.

Learned Counsel Shri Narnarware for the petitioner submitted that the

said judgment would not have the effect of reversing the decision made

prior to the view taken by the Hon'ble Apex Court in the said case.

9. Admittedly, the petitioner was appointed in the public

employment from the S. T. Category. The tribe claim of the petitioner

was referred to the Scrutiny Committee for verification. The Scrutiny

Committee upon verification invalidated tribe claim of the petitioner.

Being aggrieved with the same, the petitioner approached this Court

challenging the judgment of the Scrutiny Committee invalidating his

tribe claim by filing writ petition. This Court has not considered the

contention of the petitioner as to validating the tribe claim however,

protected the service of the petitioner on the term that he or his progeny

would not claim benefits which are meant for the 'Halba - Schedule

Tribe'. Thus, the judgment of this Court confirming the judgment of the

Scrutiny Committee invalidating the tribe claim of the petitioner and wp.920.2020.judgment.odt

also granting protection in service has become final as it was not

challenged. The respondents also have accepted the judgment of this

Court grating protection to the service of the petitioner upon

invalidation of the tribe claim. Thus, the issue raised regarding the

protection of the service of the petitioner has attained the finality. The

said judgment was passed by this Court on 27.02.2017.

10. Subsequent to the judgment of this Court granting

protection to the petitioner in his employment the judgment in the case

of Chairman and Managing Director FCI and others (supra) is delivered

by the Hon'ble Apex Court. The Apex Court observed that a person

whose tribe claim is invalidated has no right to remain in employment

and all the benefits received by such employees are to be withdrawn.

On the basis of the said judgment of the Hon'ble Apex Court in the case

of Chairman and Managing Director FCI and others (supra), the State of

Maharashtra has issued the Government Resolution dated 21.12.2019

which is under challenged in the present petition. Clause 1 of the said

Government Resolution reproduced for the reference:

ß1- vuqlwfpr tekrhlkBh jk[kho vlysyh ins fjDr dj.ks & loZ iz'kkldh; foHkkxkauh [kqí` o R;kaP;k vf/kiR;k[kkyhy 'kkldh;@fue'kkldh; dk;kZy;krhy vuqlwfpr tekrhP;k [kkyhy vf/kdkjh o deZpk&;kaph laoxZfugk; la[;k fuf'pr d#u R;kaP;k lsok fn- 31-12-2019 Ik;Zar vf/kla[; inkaoj oxZ djkO;kr %& wp.920.2020.judgment.odt

¼v½ vuqlwfpr tekrhps tkr izek.ki= voS/k Bjysys vf/kdkjh@deZpkjh-

¼c½ vuqlwfpr tekrhps tkr izek.ki= voS/k BjY;kuarj fo'ks"k ekxklizoxkZps vFkok vU; dks.kR;kgh ekxkloxkZps tkr oS/krk izek.ki= lknj dsysys vf/kdkjh@deZpkjh-

¼d½ vuqlwfpr tekrhpk nkok lksMwu fnysys vf/kdkjh@deZpkjh-

¼M½ fu;qDrhuarj tkrizek.ki=kP;k iMrkG.khlkBh fofgr eqnrhr tkr iMrkG.kh lferhdMs izLrko lknj u dsysys vuqlwfpr tekrhps vf/kdkjh o deZpkjh-

¼b½ T;k vf/kdkjh o deZpk&;kauh R;kaps vuqlwfpr tekrhps tkr izek.ki= voS/k Bjfo.;kP;k tkr iMrkG.kh lferhP;k fu.kZ;kP;k fojks/kkr ekuuh; U;k;ky;kr ;kfpdk nk[ky dsY;k vlrhy ek= R;kaP;k izdj.kh ekuuh; mPp U;k;ky;kus fdaok ekuuh; lokZsPp U;k;ky;kus tkr izek.ki= voS/k Bjfo.;kP;k lferhP;k fu.kZ;kl dks.krhgh LFkfxrh fnyh ulsy vls vf/kdkjh o deZpkjh-Þ

11. In the present case, tribe claim of the petitioner is

invalidated and it attained finality by which the protection to the

services of the petitioner was granted. In view of the clause 1(a to e) of

the impugned Government Resolution, it appears that the petitioner is

not covered under the said Government Resolution as it is limited only in

respect of those candidates to whom the High Court under which order

has granted protection to the petitioners in their employment. Such a

category does not appear to cover in the Government Resolution dated

21.12.2019. Moreover, the observations of the Hon'ble Apex Court wp.920.2020.judgment.odt

nowhere shows that the said judgment would apply retrospectively. For

applying the doctrine of retrospectively it shall expressly state that the

judgment would operate retrospectively, which is not so.

12. The Apex Court in the case of Pradeep Kumar Maskara Vs.

State of West Bengal and others, reported in 2015(2) SCC 653 has held

that even if the decision on a question of law has been reversed or

modified by subsequent decision of a superior court in any other case, it

shall not be a ground for review of a judgment which has attained the

finality because subsequent judgment has taken a contrary view.

13. The judgment delivered in the present case granting

protection in service even after invalidation of the tribe claims have

become final which would be binding on the parties. It is not the case of

the respondents that the judgment of this Court granting protection in

service of the petitioner was by fraud. The Hon'ble Apex Court in the

case of S.G. Barapatre and others vs. Ananta Gajanan Gaiki, reported in

AIR OnLine 2018 SC 715 wherein the services of the petitioners were

protected, in the said case, before the judgment was delivered by the

Hon'ble Apex Court in case of Chairman and Managing Director FCI and

others (supra) services of the petitioners were protected under the

orders of the High Court dated 20 th February, 2015 in Writ Petition wp.920.2020.judgment.odt

No.6631/2007. The Hon'ble Apex Court observed that the judgment

between the parties has become final. In the case of Chief Regional

Officer, Oriental Insurance Company Ltd. Vs. Pradip, reported in 2020

SC 4858, wherein the Apex Court has considered its judgment in the

case of S.G. Barapatre and others (supra) and observed as under:

"The above observations make it abundantly clear that the challenge by the Food Corporation of India to the order of the Bombay High Court had been rejected on 12 April 2013 and as a result of the decision inter parties, the order of the High Court had attained finality. Consequently, this Court clarified in paragraph 9 of the above order that only the employees covered by the earlier judgment shall be entitled to the benefits which have been granted specifically by the High Court in paragraph 18 of its judgment, which has been extracted above."

14. In the present case, the employer at no stage after the order

was passed by this Court granting protection to the service of the

petitioner challenged the judgment, on the other hand, the employer i.e.

MSEDCL accepted the said judgment. After employer has accepted, the

said judgment, he cannot be allowed to turn around and claimed the

reversal of the protection granted to the petitioner. As the service of the

petitioner is protected which had attained the finality and said judgment

is binding on the employer. The judgment of the Apex Court which was

subsequent in time cannot take away the rights of the petitioner of wp.920.2020.judgment.odt

protection of service and the service benefits. The respondents have not

challenged the judgment granting the protection and therefore,

petitioner is entitled to receive the subsequent service benefits i.e. higher

grade pay.

15. The aforesaid discussion would lead us to conclude that as

the judgment of this Court has attained the finality and there was no

element of fraud alleged, the parties are bound by the said judgment.

The subsequent judgment of the Hon'ble Apex Court laying down the

proposition of law different than the one on the basis of which the

judgments are delivered by this Court and have attained the finality

cannot be reopened. The protection granted by this Court to the

employment of the petitioner bound the parties and shall continue.

16. It is also worthwhile to note that the benefits which are

being claimed are not those arising out of any caste claim of as

employee, but are benefits which are available to all employees in

general, if they fulfill the relevant criteria and thus cannot be denied to

the petitioner, who now has to be treated on par with a general

employee, and as such would be entitled to such benefits.

wp.920.2020.judgment.odt

17. In the light of the above, the Government Resolution dated

21.12.2019 shall be read in a manner not to include the employees

whose tribe claims are invalidated, but are granted protection in

employment under the judgments/orders of this Court and the said

judgment/order have attained finality.

18. In view of the aforesaid, impugned communication dated

31.12.2019 deserves to be quashed and set aside.

19. The petition is allowed. Rule is made absolute accordingly

in above said terms. No costs.

(URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.)

Sarkate.

Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 07/10/2023 16:00:52