Bombay High Court
Mohammed Sadique S/O Abdul Samad And ... vs The Municipal Council, Telhara, ... on 7 May, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:5750-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
WRIT PETITION NO. 1130 OF 2018
( Mohammed Sadique s/o Abdul Samad (dead) through Lrs. and another ..vs.. the Municipal Council,
Talhara and others )
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.S. Sarda, Counsel h/f. Mr. R.M. Bhangde, Counsel for the
petitioners,
Mr. S.D. Chopade, Counsel for respondent Nos.1 and 5.
CORAM : NITIN W. SAMBRE &
ABHAY J. MANTRI, JJ.
DATED : 07-05-2024
Heard the learned Counsel for the respective
parties.
2. The challenge in the petition is to the impugned
communication dated 14-2-2018 issued by respondent
No.5-Municipal Council, a declaration that the
communication dated 12-8-2021 issued by respondent
No.5 is illegal and a further declaration is sought that the
legal heirs for petitioner No.1 are entitled for family
pension.
3. The facts necessary for deciding the petition are
as under :
a) Considering the vacancies in the district, the
District Selection Committee advertised the vacant
post of the Teachers (Shikshan Sevak) on
28-02-2003.
b) As against the aforesaid advertisement, the
petitioners applied for selection way back in 2003.
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c) The advertisement admittedly was for five posts
from respondent No.5-Municipal Council for Urdu
Medium and the posts were for Scheduled Tribe
Category.
d) The District Selection Committee selected the
petitioners from the reserved category and
sponsored the names of the petitioners for
appointment to respondent No.5-Municipal
Council. Respondent No.5-Municipal Counsel
accordingly issued appointment orders on
10-9-2003 appointing the petitioners into Urdu
Medium School managed by it as a trained teacher
from Scheduled Tribe Category. The appointment
order particularly Clause No.14 speaks that the
appointments are from the reserved category and
in case of invalidation of the tribe claim, the
petitioners have to lose their services.
e) The petitioners thereafter continued on the said
post of Assistant Teacher and approvals were
granted by the respondent-Education Officer.
4. The contentions of the learned Counsel appearing
for the petitioners are, the petitioners were never
appointed from a reserved category that too particularly
Scheduled Tribe Category. According to him, in case if
the candidate for imparting lessons in Urdu Medium are
not available, such post can be filled in from Open
category and accordingly the petitioners were appointed
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from the Open category. It is the contention of the
learned Counsel for the petitioners that along with the
application forms, the petitioners never claimed or
submitted the Caste Certificates and as such, it has to be
inferred that the petitioners have not only applied from
Open category but also were granted approval and
further continuation in service from Open category. So
as to substantiate the aforesaid claim, the learned
Counsel for the petitioners has not only relied on the
order of granting approval but also the roster point, the
Municipal record of the school so as to claim that the
petitioners' appointment was always considered from
Open category. According to the learned Counsel for the
petitioners, it is for the first time that on 14-2-2018 the
petitioners were served with a communication thereby
directing to produce Validity Certificates, failing which
their services were to be terminated. As a sequel of
above, the petitioners have approached this Court
questioning the impugned orders. The sum and
substance is that the appointment of the petitioners was
from Open category.
5. As against above, Mr. S.D. Chopde, learned
Counsel appearing for respondent Nos.1 and 5 would
oppose the prayer. Drawing support from the
advertisement published by the District Selection
Committee, it is claimed that the post against which the
petitioners have applied was advertised from Scheduled
Tribe category. In addition, Mr. S.D. Chopde would urge
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that the appointment order issued to the petitioners in
categorical terms speaks of such selection and
appointment was from Scheduled Tribe category as
reflected in the appointment order dated 10-9-2003.
6. Clause No.14 of the appointment order
contemplates that the petitioners' appointment was from
Scheduled Tribe category and they have to submit their
Validity Certificates. Similarly, the approval order dated
13-7-2007 speaks of the approval is granted subject to
petitioners submitting Validity Certificates and reliance is
placed on Clause No.4 of the approval order.
7. Mr. S.D. Chopde would urge that it is at local
level in the Municipal Council so as to extend undue
benefit to the petitioners the record was manipulated so
as to demonstrate that the petitioners' appointment was
from Open category whereas there was no vacancy at the
relevant time so as to grant appointment from the Open
category. In addition to above, Mr. S.D. Chopde would
urge that not only the record pertaining to appointment
but also the other documents of the Municipal Council
speak of the appointment of the petitioners from
Scheduled Tribe Category. His further contentions are,
the issue is squarely covered by the Division Bench
judgment of this Court decided on 19-6-2017 in Writ
Petition No. 3990/2013 (Irfan Ahmad Saeed Ahmad and
others v. Zilla Parishad, Akola and others). That being
so, Mr. S.D. Chopde has sought dismissal of the petition.
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8. We have appreciated the aforesaid rival
contentions.
9. Perusal of the record depicts that the post against
which the petitioners came to be selected and appointed
was from reserved category as could be inferred not only
from the advertisement but also from the appointment
order dated 10-9-2003. The appointment order issued by
respondent No.5 in categorical terms mentions that the
petitioners were selected and appointed by the District
Selection Committee as against the seat reserved in
Scheduled Tribe category. Clause No. 14 of the
appointment order in categorical terms mentions that the
petitioners' appointment since is from reserved category,
in case if caste is invalidated, they shall be losing their
appointment. Apart from above, the subsequent order
issued by the Chief Executive Officer of respondent No.5
also provides that the petitioners' appointment are made
subject to final outcome of the caste validity proceedings.
10. The learned Counsel for the petitioners from the
record has tried to demonstrate that in the record of the
Municipal Council, particularly the roster point register
and the monthly record, the appointment of the
petitioners is shown from Open category. However, such
record will be of hardly any assistance to the petitioners.
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11. It is for the petitioners to demonstrate that the
Municipal Council, at the relevant time, has converted
the appointment of the petitioners from Scheduled Tribe
category to that of Open category. The petitioners not
only have failed to discharge such burden but also it can
be inferred from the record that the Municipal Council is
not armed with any such power to convert an
appointment from Scheduled Tribe category to that of
Open category. Even otherwise, the fact remains that the
selection of the petitioners was against the seat reserved
for Scheduled Tribe category as could be inferred from
the advertisement and the appointment order.
12. Merely because respondent No.5 in some of the
record has shown that the candidature of the petitioners
was from Open category that by itself will not extend the
benefit to the petitioners of considering their
appointment from the Open category.
13. The fact remains that after the advertisement,
when the appointment order was issued to the petitioners
on 10-9-2003, it was well within the knowledge not only
of petitioners but also that of respondent No.5 that
selection and appointment was as against a post reserved
for Scheduled Tribe category.
14. The petitioners continued to draw benefit of such
appointment order after occupying the posts which were
meant for Scheduled Tribe category till the last moment.
The petitioners for the first time questioned the very act
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of the respondents of considering their appointment from
Scheduled Tribe category after a lapse of a period of
more than fifteen years. The only explanation which the
petitioners have tried to put forth before this Court is in
the Municipal record the petitioners' candidature was
shown from Open category. The fact that the petitioners'
appointment was from the Scheduled Tribe category and
the appointment order dated 10-9-2003 which is not in
dispute also speaks so is not a fact in dispute.
15. In such an eventuality, the claim of the petitioners
that the Municipal Council converted and considered
their appointment from Open category cannot be
accepted as neither the Municipal Council nor the District
Selection Committee has any authority to convert the
vacancies meant for the reserved category to that of
Open category. No doubt, such conversion is permissible
in law, however, there is a procedure established for such
conversion. Admittedly neither at the behest of the
petitioners nor respondent No.5 has taken recourse to
such procedure of converting the advertised post to that
of Open category for want of candidate from the reserved
category.
16. If we apply the principles of preponderance of
probabilities, the Municipal record, after the selection of
the petitioners from Scheduled Tribe category, is
manipulated by its employees so as to extend undue
benefit to the petitioners. Not only by such illegal act
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undue benefit of the services were continued but also the
benefits were drawn by the petitioners for last about
fifteen years.
17. The petitioner on 20-8-2013 was served with the
notice calling upon them to submit the Validity
Certificates. Such notice was neither responded by the
petitioners nor questioned at the relevant time. It is only
after lapse of period of five years from such notice the
petitioners have approached before this Court without
there being any explanation for such delay.
18. In view of aforesaid observations, we are of the
opinion that no indulgence is called for in extraordinary
jurisdiction. The petition lacks merit, stands dismissed.
19. The learned Counsel for the petitioners submits
that he is intending to approach before the Apex Court
and as such the interim relief granted be continued for a
further period of four weeks. The prayer is opposed by
the learned Counsel for the respondents.
Since the prayer for status quo is in operation for
last almost six years, same is continued for a further
period of eight weeks from today.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 21/05/2024 11:34:21
