Bombay High Court

Ku. Sangita D/O Ramdas Bahirseth ... vs The State Of Maharashtra, Through ... on 29 September, 2023

Bench: Avinash G. Gharote, Urmila Sachin Phalke

2023:BHC-NAG:14268-DB




              Judgment

                                                                   108 wp631.20

                                                1

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

                             WRIT PETITION NO.631 OF 2020

              Ku.Sangita d/o Ramdas Bahirseth
              (Sau.Sangita w/o Tarachand
              Barwad)
              aged about 44 years, occupation service,
              r/o c/o Dilip Shamraoji Bahirseth,
              ward No.3, near Kolbaswami
              Deosthan Math, Ghorad Road
              Seloo, tahsil Seloo, district Wardha-442 104. ..... Petitioner.
                                      :: V E R S U S ::
              1. The State of Maharashtra,
              through its Chief Secretary,
              General Administration Department,
              Mantralaya, Mumbai-32.

              2. The Chief Executive Officer,
              Raigad Zilla Parishad, Alibag,
              district Raigad.

              3. The Joint Commissioner & Vice-
              Chairman,
              Scheduled Tribe Certificate
              Scrutiny Committee,
              Adiwasi Vikas Bhavan, Giripeth,
              Nagpur.                      ..... Respondents.
              ======================================
              Shri S.R.Narnaware, Counsel for the Petitioner.
              Ms T.H.Khan, Assistant Government Pleader for Respondents.
              ======================================
              CORAM : AVINASH G.GHAROTE & URMILA JOSHI-PHALKE, JJ.
              CLOSED ON : 29/08/2023
              PRONOUNCED ON : 29/09/2023

              JUDGMENT (Per : URMILA JOSHI-PHALKE, J.)

1. Heard. Rule. Heard finally by consent of

learned counsel for parties.

.....2/-

Judgment

108 wp631.20

2. The petitioner was appointed as 'Assistant

Teacher' on 22.11.1995 against post reserved for

Scheduled Tribe Category (S.T.Category) on the basis of

caste certificate issued to her on 30.4.1991 by the

Executive Magistrate Wardha showing that she belongs to

caste "Halba - Scheduled Tribe". There were no terms and

conditions in the appointment order regarding submission

of Caste Validity Certificate. The caste claim of the

petitioner was forwarded to the Scrutiny Committee at

Nagpur (the Committee) and the Committee by order

dated 22.2.2017 invalidated the caste claim of the

petitioner. She challenged the said order before this court

in Writ Petition No.1389/2017 and this court on 17.4.2017

protected the services of the petitioner in view of the

judgment of the Full Bench of this court in the case of

Arun Vishwanath Sonone vs. State of Maharashtra and

ors1. The petitioner had given an undertaking stating in it

that hereinafter she/her progeny would not claim any

benefits on the basis of the caste belonging to "Halba -

Scheduled Tribe". After completion of 3 years of services,

after protection granted to her and after completion of 25 1 2015(1)Mh.L.J.457

.....3/-

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108 wp631.20

years of services in a clear permanent vacancy,

respondent No.2 issued order dated 31.12.2019 to the

petitioner applying Government Resolution dated

21.12.2019 and judgment of the Honourable Apex Court in

the case of Chairman and Managing Director, Food

Corporation of India and ors vs. Jagdish Balaram Bahira

and ors2 and included the petitioner on temporary

appointment for 11 months ignoring the protection

granted to her by order dated 17.4.2017. As per

contention of the petitioner, impugned order dated

31.12.2019 issued to her is violative of principles of

judicial propriety and liable to be quashed and set aside.

By this petition, the petitoiner has challenged order dated

31.12.2019 and Government Resolution dated 21.12.2019

and sought declaration that Government Resolution dated

21.12.2019 is not applicable to the petitioner as her

services are already protected.

3. Learned Assistant Government Pleader Ms

T.H.Khan for the respondents/State opposed the petition

on the ground that in view of the judgment of the

2 2017(4) Mh.L.J. 898

.....4/-

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108 wp631.20

Honourable Apex Court in the case of Chairman and

Managing Director, FCI and ors vs. Jagdish Balaram Bahira

and ors cited supra, the action was taken by the

respondents. The Honourable Apex Court in the said case

specifically held that, "for protection of service on

reserved posts, candidates whose castes' claims are

invalidated have no legal right to occupy posts of genuine

candidates belonging to the Scheduled Tribe and,

therefore, learned Assistant Government Pleader prayed

for dismissal of the petition.

4. Heard learned counsel Shri S.R.Narnaware for

the petitioner and learned Additional Public Prosecutor Ms

T.H.Khan for the respondents/State.

5. Learned counsel for the petitioner submitted

that there is no dispute that the petitioner was appointed

as "Assistant Teacher" against the reserved post for

S.T.Category and the Committee, by order dated

22.2.2017, invalidated the caste claim of the petitioner.

The petitioner challenged the said order before this court

in Writ Petition No.1389/2017 and this court on 17.4.2017

.....5/-

Judgment

108 wp631.20

protected the services of the petitioner in view of the

judgment of the Full Bench of this Court in the case of

Arun Vishwanath Sonone vs. State of Maharashtra and ors

cited supra on condition that the petitoiner shall file an

undertaking stating that neither she nor her progeny shall

claim any benefit belonging to "Halba - Scheduled Tribe".

The said order was not challenged by the respondents and

it attains finality. The respondents ignored the fact that

the Honourable Apex Court has clearly held in its decision

in the case of Chairman and Managing Director, FCI and

ors vs. Jagdish Balaram Bahira and ors cited supra as well

as in the case of Gajanan Marotrao Nimje and ors vs.

Reserve Bank of India and ors 3 and S.G.Barapatre and ors

vs. Ananta Gajanan Gaiki4 that previous litigations will not

be affected by this decision. The impugned official order

is violative of principles of judicial discipline and liable to

be set aside. Government Resolution dated 21.12.2019 is

clearly violative of the Honourable Apex Court's judgment

and, therefore, the same is liable to be set aside. The

impugned order dated 31.12.2019, on the basis of the

3 (2019)12 SCC 639 4 AIR OnLIne 2018 SC 715

.....6/-

Judgment

108 wp631.20

said Government Resolution, is also arbitrary and liable to

be set aside.

6. In support of his contentions, learned counsel

for the petitioner placed reliance on following decisions:

Gajanan Marotrao Nimje and ors vs. Reserve Bank of India and ors ( supra);

S.G.Barapatre and ors vs. Ananta Gajanan Gaiki (supra);

The Chief Regional Officer, Oriental Insurance Co.Ltd. vs. Pradip and anr 5, and

Raja Tukaram Shinde vs. The State of Mah., Tribal Development Department, Mantralaya, Mumbai and anr (Writ Petition No.903/2020 and other connected matters decided by this court at Aurangabad on 4.5.2021;

7. Learned Assistant Government Pleader for the

respondents supported the order impugned and submitted

that it is specifically observed by the Honourable Apex

Court that service protection on the reserved posts of

candidates whose castes claims are invalidated would not

be permissible as they have no legal right to occupy posts

of genuine Scheduled Tribes.

5    AIR 2020 SC 4858

                                                         .....7/-
 Judgment

                                                            108 wp631.20

8. Having heard both the sides and perused the

record, it is not disputed that the petitioner was appointed

as 'Assistant Teacher' against post reserved for

S.T.Category. The appointment order dated 22.11.1995

clearly shows that the appointment was against the

reserved post. It is also not disputed that the caste claim

of the petitoiner was invalidated by the committee by

order dated 22.2.2017 which was subject matter of

challenge in Writ Petition No.1389/2017. In view of the

judgment of the Full Bench of this Court in the case of

Arun Vishwanath Sonone vs. State of Maharashtra and ors

cited supra, the services of the petitioner are protected

considering she has been appointed prior to the cut-off

date on conditions that the petitioner or her progeny shall

not claim any benefit belonging to Halba S.T.Category.

Thereafter, the petitioner rendered her services till

31.12.2019. Thus, she completed 25 years of service and

respondent No.2, in view of Government Resolution dated

21.12.2019, on the basis of the judgment of the

Honourable Apex Court in the case of Chairman and

Managing Director, Food Corporation of India and ors vs.

.....8/-

Judgment

108 wp631.20

Jagdish Balaram Bahira and ors cited supra, placed the

petitioner on temporary post for 11 months. The said

Government Resolution is challenged by the petitioner.

9. It is submitted by the respondents that rights

of eligible persons, who are employed from reserved

category in place of the petitioner, are violated. The

petitioner availed the benefits of reservation which she is

not entitled for. Whereas, it is contention of the petitioner

that the decision of the Honourable Apex Court in the case

of Chairman and Managing Director, Food Corporation of

India and ors vs. Jagdish Balaram Bahira and ors cited

supra is not applicable in the present case. It is further

submitted that it is specifically observed by the

Honourable Apex Court in the case of S.G.Barapatre and

ors vs. Ananta Gajanan Gaiki cited supra that the benefits

which have been granted, as per the judgment specifically

referred to in paragraph No.18 of the above judgment,

which is extracted above, (Chairman and Managing

Director, Food Corporation of India and ors vs. Jagdish

Balaram Bahira and ors ), cannot be taken away in

collateral proceedings and, therefore, the Government

.....9/-

Judgment

108 wp631.20

Resolution which was made appliable to the petitoner and

subsequent order dated 31.12.2019 placing the petitoiner

on the temporary post are arbitrary.

10. The entire issue revolves around protection

granted to the petitioner by the High Court in service and

the effect of protection granted by this court after the

judgment of the Honourable Apex Court in case of

Chairman and Managing Director, Food Corporation of

India and ors vs. Jagdish Balaram Bahira and ors cited

surpa. The petitioner was appointed from the

S.T.Category. Her tribe claim was invalidated by the

committee. Being aggrieved with the same, she

approached this court and this court protected her

services on conditions that she or her progeny would not

claim any benefits being of Halba Community. Admittedly,

the said judgment protecting her services in Writ Petition

No.1389/2017 was not challenged and the same attained

the finality. Subsequent to the judgment protecting her

services, in the judgment in the case of Chairman and

Managing Director, Food Corporation of India and ors vs.

Jagdish Balaram Bahira and ors cited supra it was held

.....10/-

Judgment

108 wp631.20

that a person whose tribe claim is invalidated has no right

to remain in employment and all the benefits received by

such employee are to be withdrawn. On the basis of the

said judgment, the State of Maharashtra issued

Government Resolution dated 21.12.2019 and the

impugned order dated 31.12.2019 was passed placing the

petitioner on temporary post. Clause 1 of the said

Government Resolution is reproduced for the reference:

1- 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;Zr a vf/kla[; inkaoj oxZ djkO;kr %&

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 dsyy s s 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

.....11/-

Judgment

108 wp631.20

U;k;ky;kus tkr izek.ki= voS/k Bjfo.;kP;k lferhP;k fu.kZ;kl dks.krhgh fLFkfxrh fnyh ulsy vls vf/kdkjh o deZpkjh-

11. In the present case, the services of the

petitioner was protected by this court. Clause 1 and sub

clauses (A) to (E) of the Government Resolution show that

the petitioner is not directly covered under the said

Government Resolution as it is limited only in respect of

those candidates to whom the High Court under its order

granted protection to the petitioners in their employment.

Such a category does not appear to be covered in the

Government Resolution referred above. Moreover, the

judgment in the case of Chairman and Managing Director,

Food Corporation of India and ors vs. Jagdish Balaram

Bahira and ors cited supra nowhere speaks that the said

judgment would apply retrospectively. For applying the

judgment retrospectively, the judgment shall expressly

state that the judgment would operate retrospectively. In

the present case, the issue of applying the principle

retrospectively does not emerge.

12. The coordinate bench at Aurangabad in the

case of Raja Tukaram Shinde vs. The State of Mah., Tribal

.....12/-

Judgment

108 wp631.20

Development Department, Mantralaya, Mumbai and anr

cited supra referred the judgment in the case of Pradip

Kumar Maskara and ors vs. State of West Bengal and ors 6

wherein it is 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

finality inter parties merely because a subsequent has

taken contrary view. It is held that Government

Resolution dated 21.12.2019 is not applicable to the

employees whose tribes claims are invalidated but are

granted protection in employment prior to the judgment

delivered by the Honourable Apex Court in the case of

Chairman and Managing Director, Food Corporation of

India and orss vs. Jagdish Balaram Bahira and ors cited

surpa.

13. It is nowhere submitted by the respondents

that the order of protection for the services is obtained by

the petitioner by fraud.

6 (2015)2 SCC 653

.....13/-

Judgment

108 wp631.20

14. The Honourable Apex Court in the case of

S.G.Barapatre and ors vs. Ananta Gajanan Gaiki cited

supra protected the services of petitioners therein. In the

said decision, before the judgment was delivered by the

Honourable Apex Court in the case of Chairman and

Managing Director, Food Corporation of India and orss vs.

Jagdish Balaram Bahira and ors cited supra, services of the

petitioners were protected under the orders of the High

Court in Writ Petition No.6631/2007. The Honourable

Apex Court observed that the judgment between the

parties has become final. The Honourable Apex Court in

the case of S.G.Barapatre and ors vs. Ananta Gajanan

Gaiki cited supra observed as under:

"15. 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/-

Judgment

108 wp631.20

15. In the present case, the respondents at no

stage after the order was passed by this court challenged

the judgment of this court granting protection to the

services and accepted the said judgment. The employer

after a long period, by applying the decision

retrospectively, when the judgment nowhere says about

applicability of the judgment retrospectively, issued a

communication placing the petitioner on a temporary post,

which is arbitrary. The judgment passed by this court